J-S69045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                    v.

ANTHONY JOHN VENERI,

                           Appellant                   No. 942 EDA 2015


                  Appeal from the Order of March 6, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0003526-1978
                          CP-23-CR-0003713-1978


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 29, 2015

      Appellant, Anthony John Veneri, appeals pro se from the order entered

March 6, 2015, dismissing his petition for writ of mandamus for lack of

jurisdiction. We affirm.

      We briefly summarize the facts and procedural history of this case as

follows. A jury found Appellant guilty of two separate robberies and related

offenses in 1979. Since then, Appellant filed 13 petitions for collateral relief,

including several petitions under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. The PCRA court denied relief on Appellant’s twelfth

PCRA petition on June 11, 2014.        Appellant appealed that decision to this

Court. While that appeal was pending, on January 21, 2015, Appellant filed

a pro se “petition for writ of mandamus, nunc pro tunc, demanding release

from illegal prosecution.”     On March 6, 2015, the PCRA court treated the
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mandamus petition as a PCRA petition and dismissed it, citing a lack of

jurisdiction because Appellant’s twelfth PCRA petition was still pending on

appeal. This timely appeal followed.1

       On appeal, Appellant presents the following issues, pro se, for our

review:
          1. Whether [Appellant] was prosecuted illegally on 1-31-79
             because the bills of information[] were not sign[ed] by
             the District Attorney?

          2. Whether [Appellant] was denied effective assistance of
             trial counsel?

          3. Whether [Appellant] is entitled to the equal protection of
             the laws, guaranteed by the 6th, 8th and 14th
             Amendments to the U.S. Constitution?

Appellant’s Brief at 2.

       Initially, we note that while Appellant stylizes his petition as one

sounding in mandamus, his individual claims all fall within the parameters of

the PCRA. “We have repeatedly held that the PCRA provides the sole means

for obtaining collateral review, and that any petition filed after the judgment

of   sentence     becomes      final   will    be   treated   as   a   PCRA   petition.”

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002).

Hence, the PCRA court properly treated Appellant’s mandamus petition

under the PCRA.

____________________________________________


1
   Appellant filed two notices of appeal. We accepted the first one filed on
March 24, 2015 and dismissed the second as duplicative. The PCRA court
filed an opinion pursuant to Pa.R.A.P. 1925(a) on July 16, 2015.



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       “Our standard of review in an appeal from the grant or denial of PCRA

relief requires us to determine whether the ruling of the PCRA court is

supported by the record and is free from legal error.” Commonwealth v.

Lesko, 15 A.3d 345, 358 (Pa. 2011). “[W]hen 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.” Commonwealth v. Breakiron, 781 A.2d 94, 99 (Pa. Super.

2001).    When a PCRA petition is appealed, the PCRA court is divested of

jurisdiction. Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).

       Here, Appellant appealed the June 11, 2014 denial of relief on his prior

PCRA petition.2 While that appeal was pending before this Court, he filed the

current mandamus petition on January 21, 2015. The PCRA court properly

treated the mandamus petition as a subsequent PCRA petition.          Because

there was another PCRA appeal pending, the PCRA court was divested of

jurisdiction to entertain Appellant’s current claims.    Thus, dismissal was

proper.

       Order affirmed.




____________________________________________


2
  We affirmed the denial of relief on Appellant’s prior PCRA petition in an
unpublished memorandum on April 21, 2015. See Commonwealth v.
Veneri, 121 A.3d 1136 (Pa. Super. 2015).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2015




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