J-S34019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 DAVON RENEE HAYES                         :
                                           :
                     Appellant             :   No. 1617 WDA 2017

                Appeal from the PCRA Order October 2, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0001018-2004,
                          CP-02-CR-0014894-2003


BEFORE:      BOWES, J., STABILE, J., and STRASSBURGER*, J.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

                                                   FILED OCTOBER 25, 2018

        I concur, but only so far as I would also affirm the order. In all other

respects I dissent, as I would hold that the PCRA court properly treated

Appellant’s motion as a PCRA petition. However, the PCRA court erroneously

addressed the merits of his substantive claim, instead of determining whether

it had jurisdiction to do so.    I would affirm on that alternative basis.   My

reasoning follows.

        Appellant filed the motion at issue in this appeal on July 31, 2017. At

that time, a PCRA appeal was pending before this Court, at docket 1919 WDA

2016.     In November, this Court denied relief, and, in January of 2018,

Appellant filed a petition for allowance of appeal with our Supreme Court. That




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S34019-18



petition was docketed at 60 WAL 2018; during the pendency of this appeal,

our Supreme Court denied the petition by order docketed September 5, 2018.

      Meanwhile, the PCRA court treated Appellant’s July 21, 2017 motion as

a PCRA petition, and issued a notice of intent to dismiss followed by a final

dismissal. Appellant then appealed, and both he and the Commonwealth filed

their respective briefs while the Supreme Court was still considering his

request for review of our decision at 1919 WDA 2016.

      As the Majority notes, the pending PCRA appeal precluded the PCRA

court from proceeding pursuant to Commonwealth v. Lark, 746 A.2d 585

(Pa. 2000).     Appellant recognized that point of law within his motion, and

expressly asked the PCRA court to refrain from acting. There is no doubt that

Appellant was attempting to protect his rights by guarding against the

possibility a court would later fault him for failing to file his petition at an

earlier date.

      The Majority recognizes all of this, yet my learned colleagues are unsure

whether the July 21, 2017 motion was a PCRA petition or not. I find that the

PCRA court properly construed Appellant’s motion as a request for relief under

the PCRA. Appellant stated that he wished to “preserv[e] the right to file a

formal PCRA [p]etition in the future[.]” Motion, 7/31/17, at 1. I find that the

open-ended request to file a PCRA petition in the future is, in fact, a PCRA

petition. What Appellant sought to do was file a “placeholder” PCRA petition,

which he would seek permission to amend at a later time. Hence, it was a

PCRA petition. See Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.Super.

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2013) (“It is well-settled that the PCRA is intended to be the sole means of

achieving post-conviction relief.”).

      In turn, the PCRA court saw no need to permit amendment at a later

date, as it determined Appellant was not entitled to relief in any event. In its

notice of intent to dismiss, the court stated, “[A]fter a thorough review of the

record, the Court finds that his Application for Post-Conviction Relief is

patently frivolous and without support on the record[.]” Notice of Intent to

Dismiss, 8/15/17, at 1. That was erroneous, as explained in Commonwealth

v. Cox, 146 A.3d 221 (Pa. 2016), wherein our Supreme Court reiterated that

a PCRA court must first consider, when dealing with an untimely PCRA petition,

whether jurisdiction has been properly invoked. The Court explained:

      The PCRA requires that a petition seeking relief thereunder must
      be filed within one year of the date the petitioner's judgment of
      sentence becomes final.           42 Pa.C.S.A. § 9545(b)(1);
      Commonwealth v. Jones, 617 Pa. 587, 54 A.3d 14, 16 (2012).
      “[A] judgment becomes 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.
      This timeliness requirement is jurisdictional in nature, and a court
      may not address the merits of any claim raised unless the petition
      was timely filed or the petitioner proves that one of the three
      exceptions to the timeliness requirement applies. Jones, 54 A.3d
      at 16.

            ....

      Once jurisdiction has been properly invoked (by establishing
      either that the petition was filed within one year of the date
      judgment became final or by establishing one of the three
      exceptions to the PCRA's time-bar, the relevant inquiry becomes
      whether the claim is cognizable under the PCRA.


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J-S34019-18


Id. at 227–28.

       There is no meaningful difference between Cox and this case, as in both

cases the PCRA court decided the merits of the underlying PCRA claim instead

of determining whether jurisdiction was properly invoked. Had the PCRA court

addressed that question, as required by law, it would have been compelled to

find that it could not proceed under Lark.          While Cox concerns the

jurisdictional limitation with respect to the timeliness exceptions, I find that

the Cox analysis must extend to the failure to correctly apply Lark. We should

therefore affirm on that alternative basis.

       By not taking that route, the Majority ends up derogating Appellant’s

rights. The Majority states that Appellant has sixty days from September 5,

2018, the date that our Supreme Court denied his petition for discretionary

review of his prior PCRA appeal, to file any PCRA petition.            Majority

Memorandum at 5.

       That result is inconsistent with Lark.    Were Appellant to file a new

petition with the PCRA court as I write this memorandum, Lark would preclude

the PCRA court from acting due to the pendency of this PCRA appeal.1 Its

____________________________________________


1   Suppose that the Commonwealth, for whatever reason, sought
reconsideration, en banc review, or review with the Supreme Court of
Pennsylvania. According to the Majority, Appellant’s sixty-day window would
still be running. Obviously, I do not suggest that the Commonwealth would
actually do so. The fact that it could demonstrates the flaws in the Majority’s
analysis.




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result is also erroneous, as the Majority ends up punishing the pro se litigant

for the PCRA court’s error. Appellant was rightfully concerned that the PCRA

court’s improper order would constitute the law of the case in future

proceedings.2 I fail to see why his diligence somehow works to his detriment.3

       Accordingly, I cannot agree that Appellant’s sixty-day window to file a

serial PCRA petition commenced upon our Supreme Court’s denial of his prior

PCRA appeal. We should affirm the order, thereby giving Appellant the full

time to which he is entitled by law in order to pursue relief.




____________________________________________


2 Appellant filed an objection to the notice of intent to dismiss, arguing, inter
alia:

       Petitioner did not file a "NEW" PCRA Petition alleging and/or
       claiming newly discovered and exculpatory evidence. Petitioner
       was seeking the "RIGHT" to preserve his rights to file a . . . PCRA
       Petition, after his current appeal pending in the Superior Court of
       Pennsylvania[.]

Response to Notice of Intent to Dismiss, 8/28/17, at 1.

3 The Majority writes, “[W]hen Appellant filed the Motion, he did so without
identifying any legal authority upon which the Motion was premised.” Majority
Memorandum at 3. That is true, but I fail to see why a pro se litigant should
be penalized for the judge’s jurisdictional error. The failure to cite any law
stating that the PCRA court could hold his motion in abeyance does not grant
the PCRA court carte blanche to ignore Lark and Cox.

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