J-S25041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL GEORGE DEEP,

                            Appellant                No. 2025 WDA 2014


                  Appeal from the PCRA Order August 29, 2014
              in the Court of Common Pleas of Washington County
               Criminal Division at No.: CP-63-CR-0001722-2005


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 05, 2015

        Appellant, Michael George Deep, appeals pro se from the order

denying his third petition filed pursuant to the Post Conviction Relief Act

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

        We take the following relevant facts from our review of the record. On

October 27, 2006, a jury convicted Appellant of two counts each of sexual

assault, endangering the welfare of children, and corruption of minors

related to his abuse of his minor step-daughter.     On March 22, 2007, the

court sentenced Appellant to an aggregate term of not less than fourteen nor

more than forty-four years’ incarceration. Appellant’s post-sentence motions

were denied by operation of law. On April 15, 2009, a panel of this Court
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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affirmed the judgment of sentence, and on October 20, 2009, our Supreme

Court denied review. (See Commonwealth v. Deep, 974 A.2d 1179 (Pa.

Super. 2009) (unpublished memorandum), appeal denied, 982 A.2d 509

(Pa. 2009)).

      On August 6, 2010, Appellant filed a counseled first PCRA petition.

After issuing a Rule 907 notice of its intent to dismiss the petition without a

hearing, see Pa.R.Crim.P. 907(1), the court formally dismissed the petition

on September 27, 2010.      On September 16, 2011, this Court affirmed in

part, vacated in part, and remanded for an evidentiary hearing on

Appellant’s claim that trial counsel was ineffective for failing to meet with

him prior to trial.   (See Commonwealth v. Deep, No. 1592 WDA 2010,

unpublished memorandum, at *8, *11 (Pa. Super. filed Sept. 16, 2011)).

      After remand, the PCRA court held the ordered hearing on December

19, 2011. On May 22, 2012, the court dismissed Appellant’s petition. On

September 13, 2013, this Court affirmed the dismissal and, on February 20,

2014, the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal.    (See Commonwealth v. Deep, 87 A.3d 382 (Pa.

Super. 2013) (unpublished memorandum), appeal denied, 86 A.3d 232 (Pa.

2014)).

      On February 24, 2014, Appellant filed a pro se second PCRA petition.

On March 18, 2014, the PCRA court issued a Rule 907 notice of its intent to

dismiss Appellant’s petition without a hearing. Appellant filed a response to


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the notice on March 31, 2014, and, on April 8, 2014, the court dismissed the

petition as untimely. On July 11, 2014, Appellant filed a motion to file an

appeal nunc pro tunc, which the court granted the same day. On July 31,

2014, Appellant filed a notice of appeal from the court’s April 8, 2014 order.

       On August 21, 2014, while his appeal of the PCRA court’s April 8, 2014

order was still pending, Appellant filed a third PCRA petition pro se.      On

August 29, 2014, the court dismissed Appellant’s petition on the basis of

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).               (See Order,

8/29/14, at 1).

       On September 17, 2014, Appellant discontinued his appeal of the

PCRA court’s April 8, 2014 order. On September 23, 2014, Appellant timely1

appealed from the PCRA court’s August 29, 2014 order dismissing his PCRA

petition on the basis of the pending appeal.2

       Appellant raises seven questions for our review:

       I.    Whether the case should be remanded back to the PCRA
       court for review of the matters raised herein[?]

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1
    Appellant’s notice of appeal was docketed on November 23, 2014.
However, pursuant to the Prisoner Mailbox Rule, because Appellant is
incarcerated, we deem his notice of appeal filed on the date that he handed
it to prison officials for mailing. See Commonwealth v. Feliciano, 69 A.3d
1270, 1274 n.2 (Pa. Super. 2013); (see also Cash Slip, 9/23/14, at
unnumbered page 1).
2
 The PCRA court did not order Appellant to file a Rule 1925(b) statement,
but it filed a Rule 1925(a) opinion on September 8, 2014. See Pa.R.A.P.
1925.



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        II.   Whether the [PCRA] court erred in denying relief based on
        trial counsel’s ineffective assistance by failing to utilize
        compulsory process or requesting a continuance when Dr.
        Brandstetter could not testify in order to acquire the testimony
        of Dr. Brandstetter for the purposes of trial[?]

        III. Whether the [PCRA] court erred in denying relief based on
        trial counsel’s ineffective assistance by failing to request that
        [Appellant’s] expert be able to examine the alleged victim[?]

        IV.   Whether the [PCRA] court erred in denying relief based on
        trial counsel’s ineffective assistance in failing to object or
        attempt to suppress Dr. Squires’ testimony[?]

        V.     Whether the [PCRA] court erred in denying relief based on
        trial counsel’s ineffective assistance in failing to object to the
        Brady[3] violation where evidence regarding Dr. Squires’
        examination was willfully withheld from the defense[?]

        VI.    Whether the [PCRA] court erred in denying relief based on
        trial counsel’s ineffective assistance in failing to request a bill of
        particulars and, therefore, failed to prepare a meaningful
        defense where [Appellant] had alibi defenses regarding several
        of the alleged offenses[?]

        VII. Whether the [PCRA] court erred in denying relief based on
        trial counsel’s ineffective assistance by prematurely filing
        [Appellant’s Rule] 1925(b) [s]tatement of [errors] [c]omplained
        of on [a]ppeal prior to disposition of post-sentence motions,
        thereby barring [Appellant’s] appellate attorney from raising
        meritorious issues on appeal . . . [?]

(Appellant’s Brief, at 2-3).

        Our standard of review for an order denying PCRA relief is well-settled:

              This Court analyzes PCRA appeals “in the light most
        favorable to the prevailing party at the PCRA level.”
        Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super.
        2012[, appeal denied, 64 A.3d 631 (Pa. 2013)]. Our “review is
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3
    Brady v. Maryland, 373 U.S. 83 (1963).



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     limited to the findings of the PCRA court and the evidence of
     record” and we do not “disturb a PCRA court’s ruling if it is
     supported by evidence of record and is free of legal error.” Id.
     Similarly, “[w]e grant great deference to the factual findings of
     the PCRA court and will not disturb those findings unless they
     have no support in the record. However, we afford no such
     deference to its legal conclusions.”    Id. (citations omitted).
     “[W]here the petitioner raises questions of law, our standard of
     review is de novo and our scope of review is plenary. . . .” Id.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).

     Here, the PCRA court dismissed Appellant’s third PCRA petition

pursuant to Lark, supra because his prior PCRA appeal still was pending in

this Court.    (See Order, 8/29/14, at 1) (citing Lark, supra at 588).

Appellant argues that his third petition was timely because he “obtained

after-discovered evidence” and the PCRA “does not explain that a petition

filed based on newly-discovered evidence may not be filed until the outcome

of any pending PCRA or appellate proceedings.”    (Appellant’s Brief, at 7).

Appellant’s argument lacks merit.

     Similar to the case here, in Lark, supra, the appellant argued that,

although the PCRA “directs an appellant to file a subsequent PCRA petition

within sixty days of the discovery of new grounds for relief, [it] does not

explain how to proceed if an appeal of a prior PCRA petition is currently

pending.”     Lark, supra at 587.     In considering this argument, the

Pennsylvania Supreme Court stated:

     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


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      jurisdiction to adjudicate issues directly related to this case;
      only this [C]ourt did. . . .

            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.[A.] § 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.[A.] § 9545(b)(2).

Lark, supra at 588 (footnote omitted; emphases added); see also

Commonwealth v. Steele, 961 A.2d 786, 808-09 (Pa. 2008) (observing

that an appellant must file a second PCRA “within sixty days of the date of

the order that finally resolves the first PCRA petition . . . .”) (citing Lark,

supra at 588); 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.”).

      Here, Appellant’s appeal of the denial of his second PCRA petition was

pending in this Court when he filed his third PCRA petition. (See Notice of

Appeal, 7/31/14, at 1; Third Pro Se PCRA Petition, 8/21/14, at 1).

Therefore, based on the foregoing precedent, Appellant’s argument lacks

merit.   See Steele, supra at 808-09; Lark, supra at 588; see also

Pa.R.A.P. 1701(a).    Hence, the PCRA court properly dismissed Appellant’s

third PCRA petition on the basis that he was prohibited from filing a third


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PCRA petition while the appeal of the denial of his second petition was

pending.4 See Rigg, supra at 1084.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2015




____________________________________________


4
  Moreover, we are not persuaded by Appellant’s reliance on Lark’s citation
to Corpus Juris Secondum (CJS), Appeal and Error, in support of his
argument that, because he discontinued his appeal of the order denying his
second PCRA petition on September 19, 2014, we should remand this matter
for an evidentiary hearing in the PCRA court. (See Appellant’s Brief, at 7).

      First, we observe that CJS section 20 no longer contains the language
quoted in Lark. See Lark, supra at 588; 4 C.J.S. Appeal and Error § 20.
Second, even if it did, the language is not pertinent to our review because,
by its plain meaning, the section applied to the effect on the appellate
court where an appellant files a second appeal while a first is pending,
which is not the situation before us. See Lark, supra at 588 (citing 4 C.J.S.
Appeal and Error § 20). Indeed, Lark relied on this language to support the
well-settled principle that “[a] second appeal cannot be taken when another
proceeding of the same type is already pending.” Id. Therefore, we do not
find Appellant’s argument legally persuasive.
5
  Because of our disposition, we decline to address the issues raised in
Appellant’s statement of questions involved. (See Appellant’s Brief, at 2-3).



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