J-S73008-18

                                   2019 PA Super 107


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    PAUL WILLIAM BEATTY                        :
                                               :
                       Appellant               :       No. 178 WDA 2018

                Appeal from the PCRA Order December 28, 2017
               In the Court of Common Pleas of Venango County
              Criminal Division at No(s): CP-61-CR-0000666-2010


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

OPINION BY GANTMAN, P.J.:                                FILED APRIL 08, 2019

        Appellant, Paul William Beatty, appeals from the order entered in the

Venango County Court of Common Pleas, which denied his second petition

filed under the Post Conviction Relief Act (“PCRA”).1 For the following reasons,

we hold the court had no jurisdiction to address Appellant’s petition on the

merits. Accordingly, we affirm but on other grounds.

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

2005, Appellant raped Victim, who was at the time the minor daughter of his

girlfriend. In 2009, Victim told her legal guardian, S.H., about the rape. S.H.

took Victim to a therapist who, as a mandated reporter, informed the police

of the abuse. On August 16, 2011, a jury convicted Appellant of one count


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1   42 Pa.C.S.A. §§ 9541-9546.
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each of rape of a child, indecent assault, endangering the welfare of children,

and corruption of minors. The court sentenced Appellant on January 5, 2012,

to an aggregate term of one hundred eighty (180) to three hundred sixty

(360) months’ incarceration. This Court affirmed the judgment of sentence

on October 28, 2013.           See Commonwealth v. Beatty, 87 A.3d 895

(Pa.Super. 2013) (unpublished memorandum). Appellant did not seek further

review.

       On January 22, 2014, Appellant timely filed pro se his first PCRA petition,

and the court appointed counsel, who filed a Turner/Finley2 letter and a

motion to withdraw as counsel on February 27, 2014. On June 30, 2014, the

court granted counsel’s motion to withdraw and issued notice of its intent to

dismiss the PCRA petition without a hearing, per Pa.R.Crim.P. 907. Appellant

filed a premature pro se notice of appeal on July 21, 2014. On July 23, 2014,

the court dismissed Appellant’s first PCRA petition.      Appellant pursued his

appeal from the denial of his first PCRA petition.

       Meanwhile, on September 8, 2014, Appellant filed a second PCRA

petition, although the order denying his first petition was still on appeal. The

PCRA court held Appellant’s second petition in abeyance pending resolution of

the appeal. This Court affirmed the denial of Appellant’s first PCRA petition

on December 1, 2015, and our Supreme Court denied allowance of appeal on


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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (1988).

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May 3, 2016.    See Commonwealth v. Beatty, 135 A.3d 648 (Pa.Super.

2015) (unpublished memorandum), appeal denied, 635 Pa. 768, 138 A.3d 1

(2016).

      On July 14, 2016, Appellant filed a motion to “reinstate” his second PCRA

petition, which the court had held in abeyance awaiting the outcome of the

prior appeal. The court “reinstated” Appellant’s second petition on July 22,

2016. After an initial evidentiary hearing on January 31, 2017, Appellant filed

two amended PCRA petitions, adding new claims. The court then held two

supplemental evidentiary hearings on June 8 and 23, 2017. On December 28,

2017, the court denied Appellant’s second PCRA petition on the merits.

Appellant filed a timely notice of appeal on January 22, 2018. On January 31,

2018, the court ordered Appellant to file a concise statement of errors

complained of on appeal, per Pa.R.A.P. 1925(b); Appellant timely complied.

      Appellant raises the following issues for our review:

          WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW
          OR ABUSED ITS DISCRETION WHEN THE PCRA COURT
          WOULD NOT PERMIT [APPELLANT] TO PRESENT EVIDENCE
          ON HIS SECOND PCRA PETITION, SPECIFICALLY THE
          COURT DENIED [APPELLANT THE OPPORTUNITY] TO
          ESTABLISH EVIDENCE REGARDING THE DISTRICT
          ATTORNEY BRIBING…VICTIM FOR HER TESTIMONY[?]

          WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW
          OR ABUSED ITS DISCRETION WHEN THE PCRA COURT
          WOULD NOT PERMIT [APPELLANT] TO PRESENT EVIDENCE
          ON HIS SECOND PCRA PETITION, SPECIFICALLY…TO
          ESTABLISH EVIDENCE REGARDING THE DISTRICT
          ATTORNEY KNOWING AT THE TIME OF TRIAL THAT…VICTIM
          HAD A DIAGNOSIS OF BEING INCAPABLE OF KNOWING THE
          DIFFERENCE BETWEEN TRUTH AND FANTASY[?]

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         WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW
         OR ABUSED ITS DISCRETION WHEN THE PCRA COURT
         DETERMINED THAT…VICTIM’S RECANTATION OF THE
         CRIME WAS NOT CREDIBLE TO GRANT A NEW TRIAL[?]

(Appellant’s Brief at 5).

      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 do not give the same deference, however, to the court’s legal

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

Traditionally, credibility issues are resolved by the trier of fact who had the

opportunity to observe the witnesses’ demeanor. Commonwealth v. Abu-

Jamal, 553 Pa. 485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120

S.Ct. 41, 145 L.Ed.2d 38 (1999). “A PCRA court passes on witness credibility

at PCRA hearings, and its credibility determinations should be provided great

deference by reviewing courts.” Commonwealth v. Johnson, 600 Pa. 329,

356-357, 966 A.2d 523, 539 (2009).

      Preliminarily, Pennsylvania law makes clear the trial court has no

jurisdiction to consider a subsequent PCRA petition while an appeal from the


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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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      As an additional prefatory matter, the timeliness of any PCRA petition is

a jurisdictional requisite. Zeigler, supra. No court has jurisdiction to review

an untimely PCRA petition. Commonwealth v. Albrecht, 606 Pa. 64, 994

A.2d 1091 (2010).     “Whether a court has subject matter jurisdiction is a

question of law. … It is not waivable, even by consent, and may be raised by

any party or by the court, sua sponte, at any stage of the proceeding.”

Commonwealth v. Hemingway, 13 A.3d 491, 496 (Pa.Super. 2011).

“[E]ven where the PCRA court does not address the applicability of the PCRA

timing mandate, this Court will consider the issue sua sponte, as it is a

threshold question implicating our subject matter jurisdiction and ability to

grant the requested relief.” Commonwealth v. Whitney, 572 Pa. 468, 475-

76, 817 A.2d 473, 478 (2003). Significantly,

         [A] jurisdictional time limitation is not subject to equitable
         principles such as tolling except as provided by statute.
         Thus, the filing period is only extended as permitted; in the
         case of the PCRA, the time limitations are extended upon
         satisfaction of the exceptions found in § 9545(b)(1)(i)–(iii)
         and timely filing pursuant to (b)(2).        As it has been
         established that the PCRA’s time restrictions are
         jurisdictional, we hold that the period for filing a PCRA
         petition is not subject to the doctrine of equitable tolling,
         save to the extent the doctrine is embraced by §
         9545(b)(1)(i)–(iii).

Commonwealth v. Fahy, 558 Pa. 313, 329, 737 A.2d 214, 222 (1999). In

other words, “The PCRA’s time limitations ‘are mandatory and interpreted

literally; thus, a court has no authority to extend filing periods except as the

statute permits.’” Commonwealth v. Lee, ___ A.3d ___, 2019 PA Super 64


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*8 (filed March 1, 2019) (en banc). See also Commonwealth v. Bennett,

593 Pa. 382, 388, 930 A.2d 1264, 1267 (2007) (stating same).

      Any PCRA petition must be filed within one year of the date the

underlying judgment becomes final. 42 Pa.C.S.A § 9545(b)(1). A judgment

of sentence is deemed final “at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” 42 Pa.C.S.A. § 9545(b)(3). If the petition is not filed within one year

of that date, the petitioner must plead and prove that one of the three

statutory exceptions to the time bar under 42 Pa.C.S. § 9545(b)(1) applies.

Lark, supra at 493-94, 746 A.2d at 588.

      The   exceptions   to   the   PCRA   time-bar   allow   for   very   limited

circumstances under which the late filing of a petition will be excused; to

invoke an exception, a petition must allege and the petitioner must prove:

         (i) the failure to raise the claim previously was the result
         of interference by government officials with the presentation
         of the claim in violation of the Constitution or laws of this
         Commonwealth or the Constitution or laws of the United
         States;

         (ii) the facts upon which the claim is predicated were
         unknown to the petitioner and could not have been
         ascertained by the exercise of due diligence; or

         (iii) the right asserted is a constitutional right that was
         recognized by the Supreme Court of the United States or
         the Supreme Court of Pennsylvania after the time period
         provided in this section and has been held by that court to
         apply retroactively.


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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).            Additionally, a PCRA petitioner must

present his claimed exception within sixty days of the date the claim first could

have been presented.3 42 Pa.C.S.A. § 9545(b)(2). “As such, when a PCRA

petition is not filed within one year of the expiration of direct review, or not

eligible for one of the three limited exceptions, or entitled to one of the

exceptions, but not filed within 60 days of the date that the claim could have

been first brought, the trial court has no power to address the substantive

merits of a petitioner’s PCRA claims.” Commonwealth v. Gamboa-Taylor,

562 Pa. 70, 77, 753 A.2d 780, 783 (2000). Where a prior petition is pending

on appeal, a subsequent petition must be filed within the time limits set forth

in Section 9545(b)(2) as measured from the date of the order that finally

resolves the appeal in the prior petition, because that date is the first date the

claim could be presented. Lark, supra at 494, 746 A.2d at 588 (citing 42

Pa.C.S.A. § 9545(b)(2)).

       In the instant case, Appellant timely filed his first PCRA petition on

January 22, 2014, and court-appointed counsel filed a no-merit letter and

motion to withdraw as counsel on February 27, 2014. On June 30, 2014, the

court granted counsel’s motion to withdraw and issued Rule 907 notice.


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3 As of December 24, 2018, Section 9545(b)(2) now allows that any PCRA
petition invoking a timeliness exception must be filed within one year of the
date the claim first could have been presented. See Act 2018, Oct. 24, P.L.
894, No. 146, § 2, effective in 60 days [Dec. 24, 2018]. This amendment
does not apply to Appellant’s case, which arose before the effective date of
the amendment.

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Appellant filed a premature pro se notice of appeal on July 21, 2014. On July

23, 2014, the court formally denied Appellant’s first PCRA petition. Appellant

continued to pursue his appeal from the denial of his first PCRA petition.

      Meanwhile, on September 8, 2014, Appellant filed a second PCRA

petition, although the order denying his first petition was still pending on

appeal.   The PCRA court erred in holding Appellant’s second petition in

abeyance during that appeal and in “reinstating” the second petition on July

22, 2016, as the court had no authority to do so. 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 a second PCRA

petition, but he could not do both. See Zeigler, supra. As soon as Appellant

decided to exhaust the appeal from the denial of his first petition, the PCRA

court was required to dismiss any serial PCRA petition that Appellant filed

during the pendency of the appeal. See Lark, supra. The court accurately

noted its inability to proceed with Appellant’s second PCRA petition when filed,

but the court erred when it held the second petition in abeyance, rather than

dismiss it under Lark. The court had no authority to put Appellant’s second

petition on pause until Appellant’s pending appeal concluded. See id.

      Likewise, the court had no authority to “reinstate” Appellant’s second

petition, after his appeal on his first petition had ended, and then use the

original filing date of the second petition, September 8, 2014, to circumvent

the PCRA timeliness requirements.       If the court had properly dismissed


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Appellant’s second petition when filed, then the law would require Appellant

to file a third petition within sixty days of May 3, 2016, upon conclusion of his

appeal, and satisfy a statutory exception to the PCRA time limits. Id.

      Appellant was originally sentenced on January 5, 2012.         This Court

affirmed the judgment of sentence on October 28, 2013. Appellant sought no

further direct review. Therefore, the judgment of sentence became final on

November 27, 2013, upon expiration of the time to file a petition for allowance

of appeal with our Supreme Court. See Pa.R.A.P. 1113 (allowing thirty days

after entry of order of Superior Court to file petition for allowance of appeal).

      Appellant filed his motion to “reinstate” his second PCRA petition on July

14, 2016. Using that date as the relevant date for measuring the timeliness

of his second petition, we conclude sua sponte that the current petition was

late on its face. See Whitney, supra. Additionally, Appellant failed to meet

the relevant sixty-day rule, because July 14, 2016 was more than sixty days

after the conclusion of his appeal on May 3, 2016. See Lark, supra; 42

Pa.C.S.A. 9545(b)(2). Moreover, Appellant did not plead and prove a PCRA

timeliness exception. See 42 Pa.C.S.A. § 9545(b)(1). Even though the PCRA

court failed to address the timeliness of Appellant’s second petition, we may

do so sua sponte. See Whitney, supra. Despite the Commonwealth’s failure

to object to the untimeliness of Appellant’s current petition, as well as the

PCRA court’s decision to address the petition on its merits, the timeliness of

the PCRA petition remained at issue and could not be waived or established


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by consent. See Hemingway, supra. By holding Appellant’s second PCRA

petition in abeyance during the pendency of the appeal of his first petition,

the court created a prohibited equitable exception to the PCRA timeliness

requirements, which did not serve to toll the statutory time bar. See Fahy,

supra.    Lark precludes courts from “tolling” the PCRA time limits in this

manner, where an appeal is pending in the same case, even if the serial

petition is filed within one year of the date the judgment of sentence became

final.4 This sort of impropriety invites unwarranted delay in resolving cases

and strategic litigation abuses, as denounced in Porter, supra. Instead, Lark

required the court to dismiss Appellant’s serial petition, although dismissal of

the serial petition meant that a later petition would necessarily be untimely

on its face and subject to further qualifications before the court could review

it on the merits. See Lark, supra.

       Based on the foregoing, we hold the PCRA court erred in holding

Appellant’s second petition in abeyance, pending the outcome of the appeal

of his first petition in the same case, and then reinstating the petition for

review on the merits, without any jurisdictional analysis. The court should

have dismissed the second petition outright under Lark, when Appellant

initially filed it during the appeal from the denial of his prior PCRA petition.


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4 We distinguish the scenario that permits a court to hold a timely-filed PCRA
petition, while awaiting a decision in an unrelated case from a higher court,
or a legislative change, which could potentially impact the court’s decision in
the case before it. See Montgomery, supra at 364

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See id.   Accordingly, 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: 4/8/2019




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