Com. v. Derk, S.

J-S15010-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN CARL DERK :
:
Appellant : No. 1303 MDA 2022
Appeal from the Order Entered August 31, 2022
In the Court of Common Pleas of Snyder County Criminal Division at
No(s): CP-55-CR-0000153-1993,
CP-55-CR-0000306-1992
BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.
JUDGMENT ORDER BY BOWES, J.: FILED MAY 16, 2023
Steven Carl Derk appeals pro se from the order that dismissed his serial
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
In 1993, Appellant was convicted of murdering his paramour’s two-year-
old son. His sentence of life imprisonment was affirmed on direct appeal. See
Commonwealth v. Derk, 685 A.2d 207 (Pa.Super. 1996) (unpublished
memorandum), aff’d, 719 A.2d 262 (Pa. 1998) (equally divided court).
Appellant’s PCRA petitions filed in 1999, 2010, and 2014 resulted in no relief.
Appellant filed a PCRA petition in August 2021 which was dismissed by
order of November 24, 2021, appealed to this Court, and assigned docket
number 49 MDA 2022. While that appeal remained pending, Appellant filed
additional PCRA petitions on March 17 and April 7, 2022. The PCRA court
dismissed the petitions by order dated August 31, 2022, indicating therein
J-S15010-23
that it was without jurisdiction to entertain the petitions while the November
2021 petition was on appeal to this Court. Appellant filed a notice of appeal
from that dismissal, which was issued the above-captioned docket number.
This Court issued a rule to show cause why we should not quash this
appeal due to the pendency of the appeal at 49 MDA 2022. Appellant filed a
response in which he acknowledged that “a PCRA cannot be filed with a
subsequent [sic] appeal pending.” Response to Rule to Show Cause,
10/17/22, at 2. He indicated that he was “willing to withdraw [the instant
appeal], but request[ed] the right to re-file” his claims.1 Id. The
Commonwealth, for its part, has urged us to affirm the PCRA court’s August
31, 2022 order, citing precedent that supports the PCRA court’s determination
that it lacked jurisdiction to consider it. See Commonwealth’s brief at 8-10
(citing, inter alia, Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)
(“When an appellant’s PCRA appeal is pending before a court, a subsequent
PCRA petition cannot be filed until the 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.”)2).
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1 This Court discharged the rule for determination by the merits panel. See
Order, 4/4/23.
2 We acknowledge that Lark was overruled on other grounds not pertinent to
this appeal. See Commonwealth v. Small, 238 A.3d 1267, 1271 (Pa. 2020).
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As such, there is no disagreement among the PCRA court and the parties
that the court lacked jurisdiction to entertain Appellant’s petitions filed during
the pendency of an appeal from the dismissal of his prior PCRA petition. We
agree. See, e.g., Commonwealth v. Montgomery, 181 A.3d 359(Pa.Super. 2018) (en banc) (“Lark precludes consideration of a subsequent
petition from the time a PCRA order is appealed until no further review of that
order is possible.”). As such, the PCRA court’s August 31, 2022 order properly
dismissed Appellant’s petition for lack of jurisdiction and is hereby affirmed.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/16/2023
____________________________________________
3 This Court resolved the appeal at 49 MDA 2022 on March 13, 2023. See
Commonwealth v. Derk, __ A.3d __, 2023 WL 2471437 (Pa.Super. Mar. 13,
2023) (non-precedential decision). Once this and any other pending PCRA
appeals are final in accordance with Commonwealth v. Montgomery, 181
A.3d 359 (Pa.Super. 2018) (en banc), Appellant is free to endeavor to meet a
PCRA timeliness exception and to reassert any PCRA claims that have not been
addressed on their merits. We offer no opinion on whether he will be able to
do so, but note that our ruling herein does not prejudice his rights to make
the attempt.
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