J-S20042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                   Appellee              :
                                         :
              v.                         :
                                         :
 STEVEN RODABAUGH                        :
                                         :
                   Appellant             :       No. 1743 WDA 2018

            Appeal from the Order Entered November 13, 2018
            In the Court of Common Pleas of Jefferson County
           Criminal Division at No(s): CP-33-CR-0000539-2002


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.:                       FILED JUNE 03, 2019

     Appellant, Steven Rodabaugh, appeals pro se from the order entered in

the Jefferson County Court of Common Pleas, which denied his second petition

filed under the Post-Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-

9546, which he styled as a motion for sentence modification. We affirm.

     The relevant facts and procedural history of this case are as follows. On

August 22 and 23, 2002, Appellant placed a series of five threatening phone

calls to Victim, who is a Jefferson County Domestic Relations Department

employee. Appellant cursed at Victim and warned her not to show up to work

the following Monday. The Commonwealth charged Appellant on September

4, 2002, with terroristic threats, harassment and stalking, and harassment by

communication or address.

     On October 2, 2002, Appellant pled guilty to two counts of terroristic
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threats, and the court sentenced Appellant to an aggregate three (3) months

to two (2) years less one (1) day of imprisonment, plus four (4) years’

probation. While on probation, Appellant moved to Michigan and committed

new crimes.       When released on bail for the Michigan crimes, Appellant

absconded to Florida.          After police apprehended Appellant in Missouri,

Appellant pled guilty to the Michigan crimes on June 21, 2011.         Appellant

completed the sentences related to the Michigan charges on May 18, 2015.

       On June 3, 2015, the trial court held a violation of probation hearing

regarding the original Pennsylvania crimes. The court resentenced Appellant

to an aggregate three (3) to ten (10) years’ imprisonment. Appellant filed a

pro se “Post-Sentence Motion to Modify Sentence” on October 6, 2017, which

the court denied on October 10, 2017. On June 6, 2018, this Court reversed

and remanded for further proceedings, concluding the trial court should have

treated Appellant’s October 6, 2017 motion as a first, though untimely, PCRA

petition and appointed counsel.           In response, the court appointed PCRA

counsel on June 8, 2018.           On July 13, 2018, counsel filed a petition to

withdraw and a Turner/Finley1 no-merit letter. The court issued notice on

July 16, 2018, of its intent to dismiss per Pa.R.Crim.P. 907 and granted

counsel’s petition to withdraw. Appellant did not respond. On August 6, 2018,

the court denied Appellant’s PCRA petition, and Appellant filed a pro se notice


____________________________________________


1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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of appeal.

        During the pendency of that appeal, Appellant filed the current “Motion

for Modification of Sentence” on October 22, 2018. On October 25, 2018, the

court ordered the October 22, 2018 motion to be held in abeyance until the

prior appeal was resolved. On November 13, 2018, however, the court denied

relief on the October 22, 2018 motion. Appellant timely filed a pro se notice

of appeal on December 3, 2018. On December 6, 2018, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on December 17,

2018.

        Appellant raises the following issues for our review:

           WAS APPELLANT ENTITLED TO PRE-TRIAL CONFINEMENT
           CREDIT PURSUANT TO 42 PA.C.S. [§] 9737, UNDER COM.
           V. HOLLAWELL, 604 A.2D 723 [(PA.SUPER. 1992)] AND
           COM. V. MANN, 957 A.2D 746 [(PA.SUPER. 2008)]?

           WAS APPELLANT ENTITLED TO PRE-TRIAL CONFINEMENT
           CREDIT FOR PENNSYLVANIA WHILE HELD ON A
           PENNSYLVANIA DETAINER WHILE BEING HELD IN
           MISSOURI AND MICHIGAN?

           WAS APPELLANT ELIGIBLE FOR RRRI ON THIS 2002 CASE
           FOR SENTENCING AND RE-SENTENCING BECAUSE
           APPELLANT HAD NO PRIOR CRIMINAL HISTORY UNDER
           COM. V. CULLEN-DOYLE, [640 PA. 783,] 164 A.[3]D 1239
           [(2017)]?

           HAS APPELLANT BEEN DENIED DUE PROCESS OF LAW
           UNDER THE TIMELY VIOLATION HEARING?

           WAS APPELLANT DENIED EFFECTIVE ASSISTANCE OF
           COUNSEL FOR VIOLATION HEARING AND THE RE-
           SENTENCING HEARING?

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(Appellant’s Brief at 4).

      As a prefatory matter, any petition for post-conviction collateral relief

generally is considered a PCRA petition, regardless of how an appellant

captions the petition, if the petition raises issues for which the relief sought is

the kind available under the PCRA. Commonwealth v. Peterkin, 554 Pa.

547, 722 A.2d 638 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole

means of obtaining collateral relief and encompasses all other common law

and statutory remedies for same purpose). “A challenge to a court’s failure

to impose an RRRI sentence implicates the legality of the sentence.”

Commonwealth v. Hanna, 124 A.3d 757, 759 (Pa.Super. 2015). “Issues

concerning the legality of sentence are cognizable under the PCRA.”

Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74

(2007). We give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012).                   Further, a

petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA

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court can decline to hold a hearing if there is no genuine issue concerning any

material fact, the petitioner is not entitled to relief, and no purpose would be

served by any further proceedings. Commonwealth v. Wah, 42 A.3d 335

(Pa.Super. 2012).

      Significantly,

         Pennsylvania law makes clear the trial court has no
         jurisdiction to consider a subsequent PCRA petition while an
         appeal from the denial of the petitioner’s prior PCRA petition
         in the same case is still pending on appeal.
         Commonwealth v. Lark, 560 Pa. 487, 493, 746 A.2d 585,
         588 (2000). See also Commonwealth v. Montgomery,
         181 A.3d 359, 364 (Pa.Super. 2018) (en banc), appeal
         denied, ___ Pa. ___, 190 A.3d 1134 (2018) (reaffirming
         that Lark precludes consideration of subsequent PCRA
         petition while appeal of prior PCRA petition is still pending).
         A petitioner must choose either to appeal from the order
         denying his prior PCRA petition or to file a new PCRA
         petition; the petitioner cannot do both, i.e., file an appeal
         and also file a PCRA petition, because “prevailing law
         requires that the subsequent petition must give way to a
         pending appeal from the order denying a prior petition.”
         Commonwealth v. Zeigler, 148 A.3d 849, 852 (Pa.Super.
         2016). In other words, a petitioner who files an appeal from
         an order denying his prior PCRA petition must withdraw the
         appeal before he can pursue a subsequent PCRA petition.
         Id. If the petitioner pursues the pending appeal, then the
         PCRA court is required under Lark to dismiss any
         subsequent PCRA petitions filed while that appeal is
         pending. Lark, supra.

         Pennsylvania law also states unequivocally that no court has
         jurisdiction to place serial petitions in repose pending the
         outcome of an appeal in the same case. Id. See also
         Commonwealth v. Porter, 613 Pa. 510, 523, 35 A.3d 4,
         12 (2012) (stating that holding serial petitions in abeyance
         pending appeal in same case perverts PCRA timeliness
         requirements and invites unwarranted delay in resolving
         cases, as well as strategic litigation abuses).


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Commonwealth v. Beatty, ___ A.3d ___, 2019 PA Super 107, *2-*3 (filed

April 8, 2019).

      In the instant case, Appellant pro se previously filed a “Post-Sentence

Motion to Modify Sentence” on October 6, 2017, which the court denied. In

an opinion filed June 6, 2018, this Court reversed and remanded for further

proceedings, concluding the court should have treated Appellant’s motion as

a first, albeit untimely, PCRA petition and appointed counsel.        Following

remand and appointment of counsel, the court again denied collateral relief

on August 6, 2018. On the same day, Appellant appealed the decision.

      During the pendency of that appeal, Appellant filed the current “Motion

for Modification of Sentence” on October 22, 2018, challenging the court’s

denial of RRRI eligibility. The court should have treated this current motion

as a serial PCRA petition. See Peterkin, supra; See 42 Pa.C.S.A. § 9542.

Appellant filed the serial petition while the appeal from his first petition was

still pending, so the court should have dismissed the current petition outright.

See Lark, supra.     Instead, the PCRA court erred in initially ordering the

petition held in abeyance until the appeal of the first petition was resolved.

See id.

      Under Pennsylvania law, Appellant had the option of either going

forward with his appeal from the order denying his first PCRA petition or filing

and pursuing the second PCRA petition, but he could not do both.           See

Zeigler, supra. As soon as Appellant decided to exhaust the appeal from the


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denial of his first petition, the law required the PCRA court to dismiss any serial

petitions filed during the pendency of that appeal. See Lark, supra. The

court had no authority to hold Appellant’s second petition in abeyance until

Appellant’s pending appeal concluded. See id. Thus, we respectfully disagree

with the court’s suggestion to vacate the order denying Appellant’s current

petition and dismiss the instant appeal. Instead, we affirm the denial of relief

on   Appellant’s   current    petition,    albeit   on   other   grounds.     See

Commonwealth v. Reese, 31 A.3d 708, 727 (Pa.Super. 2011) (en banc)

(stating appellate court may affirm on any basis as long as ultimate decision

is correct).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2019




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