J-S78002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
CEASAR TRICE                            :
                                        :
                  Appellant             :   No. 1465 WDA 2016

                Appeal from the PCRA Order August 25, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0018839-2006


BEFORE:    OLSON, J., DUBOW, J., and STRASSBURGER*, J.

JUDGMENT ORDER BY OLSON, J.:                    FILED JANUARY 04, 2018

      Appellant, Ceasar Trice, appeals from the order entered on August 25,

2016, dismissing, as untimely, his second petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      We briefly summarize the facts and procedural history of this case as

follows.   A jury convicted Appellant of third-degree murder, criminal

trespass, and two counts of aggravated assault in a 2006 home invasion,

arising from a dispute involving narcotic sales, which ended with the

shooting death of a victim and injuries to two other individuals. On October

16, 2008, the trial court sentenced Appellant to an aggregate term of 32 to

64 years of imprisonment. We affirmed Appellant’s judgment of sentence on

July 8, 2011. From our review of the record, Appellant did not appeal that

determination to our Supreme Court.



____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S78002-17



      Appellant filed a pro se PCRA petition on June 11, 2012.       The PCRA

court appointed counsel who filed an amended PCRA petition on December

6, 2013. On July 28, 2014, following an evidentiary hearing, the PCRA court

dismissed the amended PCRA petition. We affirmed the denial of relief in an

unpublished memorandum on November 2, 2015. Appellant appealed. On

March 22, 2016, our Supreme Court denied further review.

      On March 20, 2016, Appellant filed a second, pro se PCRA petition.

On July 22, 2016, the PCRA court issued notice of its intent to dismiss the

petition without a hearing pursuant to Pa.R.Crim.P. 907.              Appellant

responded pro se on August 4, 2016.     The PCRA court dismissed Appellant’s

PCRA petition as untimely on August 25, 2016. This pro se appeal followed

wherein Appellant raises four issues challenging the effectiveness of trial

counsel and PCRA counsel representing him on his first PCRA petition. See

Appellant’s Brief at 4-5

      Here, the PCRA court dismissed Appellant’s most recent PCRA petition

for lack of jurisdiction, because Appellant filed it more than one year after

his judgment of sentence became final and Appellant did not allege any of

the three exceptions to the PCRA’s time bar. See 42 Pa.C.S.A. § 9545.      This

Court agrees that the PCRA court lacked jurisdiction, albeit upon a different

legal theory. See Commonwealth v. Sunealitis, 153 A.3d 414, 423 (Pa.

Super. 2016) (“We can affirm the trial court's decision if there is any basis to

support it.”). Our Supreme Court has determined “that a PCRA trial court

cannot entertain a new PCRA petition when a prior petition is still under

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review on appeal[.]” Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012),

citing Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)(“Appellant

could not have filed his second PCRA petition in the court of common pleas

while his first PCRA petition was still pending before this [C]ourt. The trial

court had no jurisdiction to adjudicate issues directly related to this case;

only this [C]ourt did. A second appeal cannot be taken when another

proceeding of the same type is already pending...”).

      In this case, Appellant filed his second PCRA petition on March 20,

2016; however, our Supreme Court did not deny relief on Appellant’s first

PCRA petition until March 22, 2016. Thus, because Appellant’s appeal on his

first PCRA petition was still pending at the time he filed the current PCRA

petition, the PCRA court lacked jurisdiction to entertain the merits of

Appellant’s instant claims.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/4/2018




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