J-S67025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARRELL REESE                              :
                                               :
                       Appellant               :   No. 601 EDA 2018

                 Appeal from the PCRA Order February 2, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0100571-1998


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                          FILED DECEMBER 14, 2018

        Appellant Darrell Reese appeals pro se from the order dismissing as

premature his sixth petition filed under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court summarized the relevant facts and procedural history

of this case as follows:

        On November 5, 1998, following a jury trial, [Appellant] was
        convicted of aggravated assault, robbery, criminal conspiracy, and
        possessing an instrument of crime, while the jury was hung on the
        first-degree murder bill. On September 27, 1999, [Appellant],
        following a re-trial on the murder bill, was found guilty by a jury
        of first-degree murder. On September 28, 1999, following a
        penalty phase, [Appellant] was sentenced to life imprisonment for
        the murder bill and lesser terms of incarceration for the remaining
        convictions. On July 10, 2001, following a direct appeal, the
        Superior Court affirmed the judgment of sentence.               The


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       Pennsylvania Supreme Court denied allocatur on December 14,
       2001.

       On August 13, 2002, [Appellant] filed his first pro se petition for
       collateral relief under the former provisions of the PCRA. Counsel
       was appointed and subsequently filed a “no merit” letter pursuant
       to Turner/Finley.[1] [Appellant]’s PCRA petition was formally
       dismissed on March 29, 2004. On August 22, 2005, the Superior
       Court affirmed the dismissal order. The Pennsylvania Supreme
       Court denied allocatur on May 31, 2006.

       On November 21, 2007, [Appellant] filed his second pro se petition
       under the Post Conviction Relief Act. [Appellant’s] PCRA petition
       was dismissed on July 20, 2009. On July 8, 2010, the Superior
       Court affirmed the dismissal order. On January 5, 2011, the
       Pennsylvania Supreme Court denied allocatur.

       On January 20, 2011, [Appellant] filed his third pro se PCRA
       petition. [Appellant’s] PCRA petition was dismissed as untimely
       on September 21, 2011. On May 23, 2012, the Superior Court
       affirmed the dismissal. On November 20, 2012, the Pennsylvania
       Supreme Court denied allocatur.

       On January 23, 2013, [Appellant] filed his fourth pro se PCRA
       petition. [Appellant’s] PCRA petition was dismissed as untimely
       on April 1, 2014. On June 5, 2015, the Superior Court affirmed
       the dismissal. On November 16, 2015, the Pennsylvania Supreme
       Court denied allocatur. On March 21, 2016, [Appellant] filed his
       fifth pro se PCRA petition. On September 22, 2016, the PCRA
       court dismissed his petition as untimely. [Appellant] timely filed
       a notice of appeal with the Superior Court (3278 EDA 2016). On
       October 18, 2017, the Superior Court affirmed the dismissal. On
       November 14, 2017, [Appellant] filed for allowance of appeal with
       the Pennsylvania Supreme Court, which remains pending (583
       EAL 2017).

       While the appeal was pending, [Appellant] filed his sixth pro se
       PCRA petition on September 6, 2017. On February 2, 2018, the
       PCRA court dismissed his petition as premature. On February 14,
       2018, the instant notice of appeal was timely filed to the Superior
       Court.

____________________________________________


1 See Commonwealth v. Turner, 544 A.2d 927                        (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

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     The PCRA court dismissed [Appellant’s] petition on the basis that
     he was prohibited from filing while the appeal of the denial of his
     previous petition was pending. In Lark, our Supreme Court
     addressed the preclusive effect that a pending appeal has on a
     petitioner’s ability to file a subsequent PCRA petition:

        We now hold that 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.
        If the subsequent petition is not filed within one year of the
        date when the judgment became final, then the petitioner
        must plead and prove that one of the three exceptions to
        the time bar under 42 Pa.C.S. § 9545(b)(1) applies. The
        subsequent petition must also be filed within sixty days of
        the date of the order which finally resolves the previous
        PCRA petition, because this is the first “date the claim could
        have been presented.” 42 Pa.C.S. § 9545(b)(2).

     Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)
     (footnote omitted); see also Pa.R.A.P.1701(a) (Generally, “after
     an appeal is taken . . . the trial court . . . may no longer proceed
     further in the matter.”). Because [Appellant] was precluded from
     filing the instant PCRA petition until the appeal from his fifth was
     resolved, the lower court dismissed his petition as premature.

PCRA Ct. Op., 5/4/18, at 1-3 (some footnotes omitted).

     Appellant raises the following issues on appeal:

     1. Whether the [trial c]ourt’s 9545(b) is based on [s]tatutory
        [l]aw[.]

     2. Whether trial [c]ounsel was ineffective when he failed to inform
        [Appellant] of the Commonwealth’s plea offer[.]

     3. Whether [the t]rial [c]ourt erred when it sentenced [Appellant]
        to an unlawful sentence, pursuant to 18 Pa.C.S.A. § 1102(a)
        or (b)[.]

     4. Whether the trial court’s jury instructions [were] contrary to
        the weight of the evidence for [c]riminal [c]onspiracy[.]




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      5. Whether the sentence for [c]riminal [c]onspirac[y] was illegal
         base[d] upon double jeopardy concerns and should have
         merged into the sentence of first degree murder which was
         base[d] upon [the] Commonwealth’s [c]riminal [c]onspiracy
         theory[.]

      6. Whether trial [c]ourt erred sentencing [Appellant] in violation
         of the merger doctrine for aggravated assault and criminal
         conspiracy to commit [m]urder crimes[.]

Appellant’s Brief at iv.

      Our standard of review from the dismissal of a PCRA petition is limited

to “whether the record supports the PCRA court’s determination and whether

the PCRA court’s decision is free of legal error.” Commonwealth v. Lawson,

90 A.3d 1, 4 (Pa. Super. 2014) (citation omitted).

      In Lark, our Supreme Court held that “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.” Lark, 746 A.2d at 588. The Court stated

that “[a] second appeal cannot be taken when another proceeding of the same

type is already pending.” Id. (citation omitted); see also Commonwealth

v. Montgomery, 181 A.3d 359 (Pa. Super. 2018) (en banc) (holding that

“Lark precludes consideration of a subsequent petition from the time a PCRA

order is appealed until no further review of that order is possible”), appeal

denied, 190 A.2d 1134 (Pa. 2018).

      Following our review, we agree with the PCRA court’s conclusions that

Appellant’s petition was premature. As indicated by the PCRA court, at the

time Appellant’s sixth PCRA petition was docketed, his appeal from the

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dismissal of his fifth PCRA petition was still pending with the Pennsylvania

Supreme Court. See PCRA Ct. Op., 5/4/18, at 3; see also 583 EAL 2017.

Therefore, the PCRA court correctly concluded that it lacked jurisdiction to

entertain Appellant’s sixth petition. See Lark, 746 A.2d at 588. Accordingly,

we affirm.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/18




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