Com. v. Powell, S.

J-S45044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SAMUEL POWELL,
Appellant No. 172 WDA 2016
Appeal from the Order Entered January 6, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001558-1989
CP-65-CR-0001559-1989
CP-65-CR-0002580-1988
BEFORE: OLSON, DUBOW AND PLATT,* JJ.
CONCURRING MEMORANDUM BY OLSON, J.: FILED AUGUST 18, 2016
I agree with the learned Majority that the PCRA court properly treated
Appellant’s motion to vacate sentence as a serial PCRA petition and that the
PCRA court correctly dismissed the untimely petition for failure to plead and
prove the applicability of a timeliness exception. See 42 Pa.C.S.A. § 9545.
I write separately to address the learned Majority’s conclusion that
“[b]ecause there was not a PCRA [petition] pending in an appellate court at
the time Appellant filed the instant petition, the PCRA court had jurisdiction
to review it under [Commonwealth v. Porter, 35 A.3d 4, 12-13 (Pa.
2012)].” Majority Memorandum, ante at 5 n.3.
In Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), our Supreme
Court held that “a subsequent PCRA petition cannot be filed until the
*Retired Senior Judge assigned to the Superior Court.
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resolution of review of the pending PCRA petition by the highest state court
in which review is sought, or upon the expiration of the time for seeking
such review.” Id. at 588. Our Supreme Court reasoned that a second
proceeding cannot be instituted while another of the same type is already
pending. Id. Stated in other words, the pendency of an earlier petition
divests all other state courts of jurisdiction to hear a second or subsequent
petition until there is a final resolution of the pending matter. See
Commonwealth v. Wharton, 886 A.2d 1120, 1125 n.7 (Pa. 2005). Where
a petitioner attempts to raise a subsequent, independent claim for relief
during the pendency of an earlier PCRA petition, his or her “only option is to
raise it within a second PCRA petition filed within [60] days of the date of
the order that finally resolves the [pending] PCRA petition[.]”
Commonwealth v. Steele, 961 A.2d 786, 808-809 (Pa. 2008).
The learned Majority finds that the pendency of Appellant’s 1995 PCRA
petition has no jurisdictional effect on the current petition. The authority
cited by the learned Majority, however, does not address or resolve the
jurisdictional question. The learned Majority cites Porter, which held that
the pendency of a PCRA petition that was held in abeyance, at the request of
the petitioner, did not divest the PCRA court of jurisdiction to consider a
serial PCRA petition filed in order to satisfy the Antiterrorism and Effective
Death Penalty Act’s state court exhaustion requirement. Porter, 35 A.3d at
12-15. Our Supreme Court’s holding in Porter, however, was limited as it
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stated that “Lark does not speak to the PCRA court’s authority in situations
like this one, where no appeal was pending, and where a prior petition was
set aside, in accordance with the petitioner’s demand that it not be decided.”
Id. at 14 (emphasis added). Thus, Porter did not broadly hold that, in
general, a PCRA court has jurisdiction over a second PCRA petition filed
during the pendency of a first PCRA petition. Instead, Porter merely held
that the pendency of a PCRA petition did not affect the PCRA court’s
jurisdiction to consider a subsequent PCRA petition in a case where no PCRA
appeal was pending and a prior petition was being held in abeyance at the
petitioner’s request.
Neither our Supreme Court nor this Court has directly addressed
whether Porter announced a new general rule or whether it announced a
narrow exception to Lark. In other words, no reported decision in this
Commonwealth has considered whether, in light of Porter and Lark, a PCRA
court ordinarily has the ability to consider a serial PCRA petition (either
timely or untimely) when a separate PCRA petition is pending before the
PCRA court as opposed to pending on appeal as in Lark. My review of the
unpublished memoranda of this Court indicates that approximately one-half
of the time when the issue presents itself, this Court determines that Lark
bars a PCRA court from considering a serial PCRA petition when a separate
PCRA petition is pending before the PCRA court. E.g., Commonwealth v.
Hardy, 2015 WL 7737688, *6 (Pa. Super. Dec. 1, 2015) (unpublished
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memorandum); Commonwealth v. Davis, 2015 WL 7594015, *3 (Pa.
Super. Nov. 25, 2015) (unpublished memorandum). In other cases, this
Court holds that Porter permits consideration of a serial PCRA petition when
a separate PCRA petition is pending before the PCRA court. E.g.,
Commonwealth v. Walton, 2015 WL 8197240, *1 n.2 (Pa. Super. Dec. 8,
2015) (unpublished memorandum); Commonwealth v. Williams, 2013 WL
11253327, *6 (Pa. Super. Oct. 29, 2013) (unpublished memorandum).
I believe that this is an important issue that warrants the attention of
this Court sitting en banc. I do not believe, however, that this is the
appropriate vehicle to consider the issue. As I believe full briefing and
argument is necessary to reach an informed decision, I decline to offer any
analysis on the issue. I simply write to note the divergent approaches that
have emerged on this Court and to urge my colleagues to address the issue
when the appropriate vehicle presents itself.
Accordingly, I respectfully concur.
Judge Dubow joins this Concurring Memorandum.
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