J-S80015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    KEVIN JORDAN                               :
                                               :
                      Appellant                :   No. 2352 EDA 2017

                    Appeal from the PCRA Order June 16, 2017
    In the Court of Common Pleas of Montgomery County Criminal Division at
                        No(s): CP-46-CR-0005792-2008


BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                                  FILED APRIL 18, 2018

       Kevin Jordan appeals from the June 16, 2017 order denying PCRA

relief on his May 25, 2017 petition. We agree with the Commonwealth that

the PCRA court1 did not err in determining that Appellant’s then-pending

appeal from his second PCRA petition precluded further proceedings in the

Court of Common Pleas. We affirm, with no prejudice to Appellant’s ability

to file a serial PCRA petition based on the same theory.

       Appellant was convicted of, inter alia, conspiracy to commit kidnapping

and possession of controlled substances with intent to deliver, and

sentenced to twelve to twenty-four years incarceration. We previously set


____________________________________________


1 As explained in the writing, the court did not treat the filing as a
subsequent PCRA petition. For ease of reference, we will refer to the court
as the PCRA court.
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forth the facts underlying his crimes in our December 9, 2010 memorandum

affirming his judgment of sentence.    Commonwealth v. Jordan, 23 A.3d

574, 2073 EDA 2009, (Pa.Super. 2010). We adopt those facts:

     Jordan’s convictions arise out of his orchestration of a conspiracy
     with co-defendant Shannon McKeiver to distribute cocaine to
     lower level dealers between January and April 2007, and to rob
     and/or kidnap another alleged drug dealer to obtain both money
     and drugs to supply their own operation. Jordan’s involvement
     with McKeiver as well as the other co-defendants was
     documented by enforcement agents of the Office of Attorney
     General (AG) pursuant to a wiretap executed on McKeiver’s
     telephone. The agents recorded McKeiver negotiating multiple
     purchases of cocaine for resale and arranging for drug deliveries
     within a ring of twenty-two alleged coconspirators. The agents
     also recorded McKeiver and co-defendants Jordan and Derrick
     Thompson plotting the robbery and/or kidnapping of a third-
     party drug dealer they identified as “the Spanish Kid,” as well as
     a neighbor they identified as an “old head.”

           ....

     In Jordan’s case, the Commonwealth introduced wiretap
     recordings as well as police testimony to establish that he and
     McKeiver had operated a drug trafficking ring and had used a cell
     phone to arrange drug sales in several southeastern
     Pennsylvania counties including Philadelphia and Montgomery.

Id. at 2-4. Our Supreme Court denied his petition for allowance of appeal

on June 1, 2011.

     Appellant filed his first PCRA petition on October 21, 2011.          We

affirmed the PCRA court’s denial of relief on April 15, 2013.              See

Commonwealth v. Jordan, 75 A.3d 554 (Pa.Super. 2013) (unpublished

memorandum). Appellant did not seek further review.




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       On August 11, 2016, Appellant filed his second PCRA petition, which

was dismissed on October 3, 2016 as untimely. Appellant filed a notice of

appeal on October 31, 2016, and we affirmed on December 12, 2017. See

Commonwealth v. Jordan, 2017 WL 6331093 (Pa.Super. 2017).

       The instant appeal concerns the PCRA court’s order disposing of

Appellant’s May 25, 2017 petition as jurisdictionally improper, as it was filed

during the pendency of the appeal from his second PCRA petition.          This

document was captioned “Amended/subsequent PCRA petition raising

‘Burton claim’ new law[.]” In its body, Appellant asserted that the Supreme

Court of Pennsylvania’s decision in Commonwealth v. Burton, 158 A.3d

618 (Pa. 2017),2 justified either an amendment to the petition which was

then on appeal, or a third PCRA petition made timely by Burton. On June

16, 2017, the PCRA court entered an order stating that the court was

“without jurisdiction to act.” Appellant filed a notice of appeal. 3 The court

____________________________________________


2 Burton held that, for purposes of the 42 Pa.C.S. § 9545(b)(1)(ii) time-bar
exception’s requirement that the facts be unknown, materials in the public
record are not presumptively known to an incarcerated pro se petitioner.
Appellant’s filing was unclear as to how that holding applied to his case.

3  The notice of appeal was docketed on July 20, 2017, four days after the
applicable period expired. It is dated July 13, 2017, and Appellant stated
that he delivered it for mailing on that date. We elect to treat the appeal as
timely pursuant to the prisoner mailbox rule. See Commonwealth v.
Jones, 700 A.2d 423 (Pa. 1997) (notice of appeal is filed on date
incarcerated pro se individual deposits the appeal with prison officials or
places it in prison mailbox).




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did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement, and

prepared an opinion. The matter is ready for our review. Appellant raises

the following issues:

      (1) Did the PCRA court abuse its discretion by dismissing the
      May 2[5], 2017 amended/subsequent PCRA petition raising
      Burton claim, new law applying 42 Pa.C.S. § 9545(b)(1)(ii),
      where the PCRA court lacked jurisdiction to adjudicate
      subsequent petition?

      (2) Does the Burton decision by the Pennsylvania Supreme
      Court on March 28, 2017, constitute a new fact for exception
      purposes at 9545(b)(1)(ii), where transcripts of record were
      concealed from Petitioner during first timely filed PCRA
      proceeding resulting in waiver of claims on appeal to this
      [C]ourt?

Appellant’s brief at 4.

      Our   standard      of   review    examines   “whether   the   PCRA   court's

determination is supported by the evidence of record and free of legal error.

We grant great deference to the PCRA court's findings, and we will not

disturb those findings unless they are unsupported by the certified record.”

Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.Super. 2017) (citation

omitted).   A PCRA petition must be filed within one year of the date the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). “This time

constraint is jurisdictional in nature, and is not subject to tolling or other

equitable considerations.”      Commonwealth v. Spotz, 171 A.3d 675, 678

(Pa. 2017) (citation omitted).          The time bar can “only be overcome by

satisfaction of one of the three statutory exceptions codified at 42 Pa.C.S.

§ 9545(b)(1)(i)–(iii).” Id. “Questions regarding the scope of the statutory

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exceptions to the PCRA's jurisdictional time-bar raise questions of law;

accordingly, our standard of review is de novo.”         Commonwealth v.

Chester, 895 A.2d 520, 522 n.1 (Pa. 2006).          Additionally, any petition

seeking to invoke one of these three exceptions “shall be filed within 60 days

of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

      In his May 25, 2017 petition, Appellant recognized that the document

was untimely under the PCRA, and sought to invoke the statutory exception

codified at 42 Pa.C.S. § 9545(b)(1)(ii): “[T]he facts upon which the claim is

predicated were unknown to the petitioner and could not have been

ascertained by the exercise of due diligence.”

      The PCRA court’s opinion indicates that it viewed the document as an

amendment to his second PCRA petition, which was impermissible since that

order was already on appeal.

      On May 25, 2017, the Defendant filed an application for remand
      with the Superior Court seeking to file an amendment or
      subsequent PCRA [p]etition raising a “Burton claim.” The same
      date, the Defendant filed an “Amended/Subsequent PCRA
      Petition Raising ‘Burton Claim’ New Law Applying 42 Pa.C.S.A.
      § 9545(b)(1)(ii)” in this Court, without leave to do so. By Order
      of June 12, 2017, the Superior Court denied the application for
      remand without prejudice to the Defendant’s ability to raise this
      claim in his brief or a new application after the appeal is
      assigned to a panel of the Superior Court. By Order of June 16,
      2017, this Court dismissed amended/subsequent Petition as the
      Court lacks jurisdiction. As of the date of this Opinion, this
      appeal, indexed at No. 3460 EDA 2016, remains pending.

      Pursuant to Pa.R.A.P. 1701(a), “after an appeal is taken or
      review of a quasijudicial order is sought, the trial court or other
      government unit may no longer proceed further in the matter.”


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              ....

       Based on the foregoing, this appeal should be quashed.

PCRA Court Opinion, 9/20/17, at 2 (emphasis added). Thus, the PCRA court

viewed Appellant’s document as an attempt to amend the second petition.

       The Commonwealth also submits that this appeal should be quashed,

albeit on a different basis. The Commonwealth states that the court lacked

jurisdiction to address a serial PCRA petition pursuant to Commonwealth v.

Lark, 746 A.2d 585 (Pa. 2000). Appellant agrees that under governing law

the PCRA court could not address the merits of his claims. He nonetheless

asks this Court to address his substantive averments, on the basis that the

PCRA court erred by failing to hold this new petition in abeyance until his

prior PCRA appeal concluded. “Logically if the PCRA court lacked authority

to adjudicate PCRA petition, such lack of jurisdiction also barred PCRA court

from dismissing PCRA petition.” Appellant’s brief at 10.

       We agree with the parties that the court lacked jurisdiction to

adjudicate Appellant’s petition, and we affirm the order on that basis.4


____________________________________________


4 “Quashal is usually appropriate where the order below was unappealable,
the appeal was untimely, or the Court otherwise lacked jurisdiction.”
Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996, 1001 n.3 (Pa. 2001)
(citations omitted). Herein, while the PCRA court lacked jurisdiction to
address the merits of the petition, it did not lack jurisdiction to address the
timeliness of the petition. See Commonwealth v. Cox, 146 A.3d 221 (Pa.
2016) (concluding petitioner failed to meet any exception to the time-bar;
“Cox’s PCRA petition is therefore untimely, and no court could have
(Footnote Continued Next Page)


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Presently, there is no doubt that Appellant sought PCRA relief, and he cited

Burton as the justification for his serial petition.5 Therefore, Lark, supra,

controls. In Lark, the Court held 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.”        Id. at 588 (emphasis added).     The PCRA court

correctly determined that it could not address the petition under this

principle.

      Appellant avers that the PCRA court was required to hold the petition

in abeyance until his second PCRA petition was disposed of by the appellate

courts.      In support of this argument, he attaches an order from the Court

of Common Pleas of Allegheny County, which held a PCRA petition in

abeyance under identical circumstances.         We need not address whether a

PCRA court has the discretion to hold a serial petition in repose while a prior




(Footnote Continued) _______________________

jurisdiction to reach the merits[.] Accordingly, we affirm the PCRA court's
order.”

5 As noted, the PCRA court appears to have denied the petition on the
grounds Appellant was attempting to amend the second petition as opposed
to filing a new, serial petition. Appellant’s petition styled the document as
both an amendment to his second petition as well as a new, third petition,
which are logically incompatible positions.




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PCRA order is on appeal, as we are satisfied that the PCRA court’s rationale

was consistent with Lark.

       Relatedly, we reiterate that the issue of whether the May 25, 2017

petition would qualify as an exception to the time-bar is not before us.

Appellant’s assertion that Burton can, standing on its own, qualify as a

newly-discovered fact justifying an untimely PCRA conflicts with precedent

from our Supreme Court. See Commonwealth v. Watts, 23 A.3d 980 (Pa.

2011). Nevertheless, the sole question on appeal is whether the PCRA court

correctly concluded that it was barred from proceeding en toto. Hence, our

affirmance is without prejudice to Appellant’s ability to file a serial petition.6

       Order affirmed.




____________________________________________


6 We note that Burton was decided on March 28, 2017, and Appellant’s
petition was docketed on May 25, 2017, fifty-eight days after the decision.
Appellant was attempting to comply with 42 Pa.C.S. § 9545(b)(2), which
states that any petition invoking an exception “shall be filed within 60 days
of the date the claim could have been presented.” See Appellant’s brief at
10 (“Petitioner filed this amended / subsequent PCRA petition within the 60
day window[.]”).

Lark addressed this concern, and stated that “[t]he subsequent petition
must ... 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.’” Id. (quoting 42 Pa.C.S. § 9545(b)(2))
(emphasis added). Our decision today affirms the order denying PCRA relief,
not quashing an unappealable quasijudicial order as found by the PCRA
court.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/18




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