NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF                          :    IN THE SUPERIOR COURT OF
PENNSYLVANIA,                            :          PENNSYLVANIA
                                         :
                        Appellee         :
                                         :
                   v.                    :
                                         :
LATIF ALKHATIB,                          :
                                         :     No. 583 EDA 2018
                        Appellant

                 Appeal from the PCRA Order January 3, 2018,
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No(s): CP-51-CR-1201672-2002

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

CONCURRING MEMORANDUM BY STRASSBURGER, J.:                  FILED FEBRUARY

06, 2019

      I join the Majority’s holding that, because Appellant is no longer serving

his sentence, he is ineligible for PCRA relief. See Majority’s Memorandum at

2. See also Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997)

(“[T]he denial of relief for a petitioner who has finished serving his sentence

is required by the plain language of the statute. To be eligible for relief a

petitioner must be currently serving a sentence of imprisonment, probation or

parole. To grant relief at a time when appellant is not currently serving such

a sentence would be to ignore the language of the statute.”) (emphasis in

original).

      I write separately to note my displeasure with the manner in which this

case proceeded. As set forth in greater detail in the Majority’s memorandum,

*Retired Senior Judge assigned to the Superior Court.
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Appellant timely filed a PCRA petition challenging the effectiveness of his

counsel in March 2011.       After the PCRA court continued a hearing on

Appellant’s petition in February 2012, this case saw no further action until

April 2017. In my opinion, a five-year period in which this case languished

with no action is unacceptable. Additionally, and most troubling, is the fact

that by the time action resumed in Appellant’s case, Appellant had completed

his sentence and therefore, was no longer eligible for relief under the PCRA.

In light of his ineligibility, the PCRA court determined it was without

jurisdiction to grant Appellant relief, and dismissed his petition on January 3,

2018. Trial Court Opinion, 1/3/2018, at 3.

      As noted by the Majority, the exact reason for the lengthy delay is not

apparent from the record. Nevertheless, the PCRA court’s failure to issue an

order rescheduling Appellant’s PCRA hearing, in conjunction with allowing this

case to sit undisturbed for several years without directing the parties to move

forward, certainly contributed to part of the delay in this case. To that extent,

I remind the PCRA court that our Supreme Court has made clear that “[t]he

PCRA court [has] the ability and responsibility to manage its docket and

caseload and thus has an essential role in ensuring the timely resolution of

PCRA matters.”    Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa.

2012) (citing Commonwealth v. Porter, 35 A.3d 4, 24–25 (Pa. 2012)

(“[T]he court, not counsel, controls the scope, timing and pace of the

proceedings below.”)).
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      While the result in this case is arguably unfair, the statute is clear; a

petitioner must be serving a sentence of imprisonment, parole or probation to

be eligible for relief. 42 Pa.C.S. § 9543(a)(1)(i).   I presume the Legislature

contemplated situations, like the one present in this case, when setting the

parameters for relief under the PCRA.           Accordingly, I concur.      See

Commonwealth v. Bursick, 584 A.2d 291, 293 (Pa. 1990) (“We are

constrained, however, to apply statutory language enacted by the legislature

rather than speculate as to whether the legislative spirit or intent differs from

what has been plainly expressed in the relevant statutes.”).


      Judge Lazarus joins this concurring memorandum.
