J-S45044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

SAMUEL POWELL,

                        Appellant                   No. 172 WDA 2016


              Appeal from the Order Entered January 6, 2016
          In the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0001558-1989
                          CP-65-CR-0001559-1989
                          CP-65-CR-0002580-1988

BEFORE: OLSON, DUBOW AND PLATT,* JJ.

CONCURRING MEMORANDUM BY OLSON, J.:               FILED AUGUST 18, 2016

      I agree with the learned Majority that the PCRA court properly treated

Appellant’s motion to vacate sentence as a serial PCRA petition and that the

PCRA court correctly dismissed the untimely petition for failure to plead and

prove the applicability of a timeliness exception. See 42 Pa.C.S.A. § 9545.

I write separately to address the learned Majority’s conclusion that

“[b]ecause there was not a PCRA [petition] pending in an appellate court at

the time Appellant filed the instant petition, the PCRA court had jurisdiction

to review it under [Commonwealth v. Porter, 35 A.3d 4, 12-13 (Pa.

2012)].” Majority Memorandum, ante at 5 n.3.

      In Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), our Supreme

Court held that “a subsequent PCRA petition cannot be filed until the


*Retired Senior Judge assigned to the Superior Court.
J-S45044-16


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.    Our Supreme Court reasoned that a second

proceeding cannot be instituted while another of the same type is already

pending.   Id.   Stated in other words, the pendency of an earlier petition

divests all other state courts of jurisdiction to hear a second or subsequent

petition until there is a final resolution of the pending matter.         See

Commonwealth v. Wharton, 886 A.2d 1120, 1125 n.7 (Pa. 2005). Where

a petitioner attempts to raise a subsequent, independent claim for relief

during the pendency of an earlier PCRA petition, his or her “only option is to

raise it within a second PCRA petition filed within [60] days of the date of

the   order   that   finally   resolves   the   [pending]   PCRA   petition[.]”

Commonwealth v. Steele, 961 A.2d 786, 808-809 (Pa. 2008).

      The learned Majority finds that the pendency of Appellant’s 1995 PCRA

petition has no jurisdictional effect on the current petition.   The authority

cited by the learned Majority, however, does not address or resolve the

jurisdictional question.   The learned Majority cites Porter, which held that

the pendency of a PCRA petition that was held in abeyance, at the request of

the petitioner, did not divest the PCRA court of jurisdiction to consider a

serial PCRA petition filed in order to satisfy the Antiterrorism and Effective

Death Penalty Act’s state court exhaustion requirement. Porter, 35 A.3d at

12-15. Our Supreme Court’s holding in Porter, however, was limited as it


                                      -2-
J-S45044-16


stated that “Lark does not speak to the PCRA court’s authority in situations

like this one, where no appeal was pending, and where a prior petition was

set aside, in accordance with the petitioner’s demand that it not be decided.”

Id. at 14 (emphasis added).     Thus, Porter did not broadly hold that, in

general, a PCRA court has jurisdiction over a second PCRA petition filed

during the pendency of a first PCRA petition. Instead, Porter merely held

that the pendency of a PCRA petition did not affect the PCRA court’s

jurisdiction to consider a subsequent PCRA petition in a case where no PCRA

appeal was pending and a prior petition was being held in abeyance at the

petitioner’s request.

      Neither our Supreme Court nor this Court has directly addressed

whether Porter announced a new general rule or whether it announced a

narrow exception to Lark.     In other words, no reported decision in this

Commonwealth has considered whether, in light of Porter and Lark, a PCRA

court ordinarily has the ability to consider a serial PCRA petition (either

timely or untimely) when a separate PCRA petition is pending before the

PCRA court as opposed to pending on appeal as in Lark. My review of the

unpublished memoranda of this Court indicates that approximately one-half

of the time when the issue presents itself, this Court determines that Lark

bars a PCRA court from considering a serial PCRA petition when a separate

PCRA petition is pending before the PCRA court. E.g., Commonwealth v.

Hardy, 2015 WL 7737688, *6 (Pa. Super. Dec. 1, 2015) (unpublished


                                    -3-
J-S45044-16


memorandum); Commonwealth v. Davis, 2015 WL 7594015, *3 (Pa.

Super. Nov. 25, 2015) (unpublished memorandum).          In other cases, this

Court holds that Porter permits consideration of a serial PCRA petition when

a separate PCRA petition is pending before the PCRA court.               E.g.,

Commonwealth v. Walton, 2015 WL 8197240, *1 n.2 (Pa. Super. Dec. 8,

2015) (unpublished memorandum); Commonwealth v. Williams, 2013 WL

11253327, *6 (Pa. Super. Oct. 29, 2013) (unpublished memorandum).

      I believe that this is an important issue that warrants the attention of

this Court sitting en banc.    I do not believe, however, that this is the

appropriate vehicle to consider the issue.      As I believe full briefing and

argument is necessary to reach an informed decision, I decline to offer any

analysis on the issue. I simply write to note the divergent approaches that

have emerged on this Court and to urge my colleagues to address the issue

when the appropriate vehicle presents itself.

      Accordingly, I respectfully concur.

      Judge Dubow joins this Concurring Memorandum.




                                     -4-
