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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 THOMAS CROSSLEY                            :
                                            :
                     Appellant              :    No. 803 EDA 2018

                   Appeal from the Order February 8, 2018
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0004523-2009


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, J.:                                 FILED MAY 08, 2019

      Appellant, Thomas Crossley, pro se, appeals from an order entered by

the Post Conviction Relief Act (“PCRA”) court, which dismissed his petition for

habeas corpus relief. The PCRA court found that Crossley had filed a similar,

if not identical, appeal to this Court in a prior petition for habeas corpus relief.

As that appeal remained outstanding in this Court as of the date of the PCRA

court’s order, Crossley was entitled to no relief.        In the present appeal,

Crossley argues that the PCRA court abused its discretion in dismissing his

petition for habeas corpus relief because his confinement is based on a PCRA

proceeding that denied him due process. We affirm.

      Crossley filed his current petition for habeas corpus relief on February

1, 2018.    On March 9, 2018, we affirmed the PCRA court’s dismissal of

Crossley’s previous petition for habeas corpus relief, adjudicating Crossley’s
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habeas claims as falling under the auspice of the PCRA. In that judgment

order, we summarized the facts as follows:

      On March 3, 2010, Crossley was sentenced to a term of
      imprisonment of 10 to 30 years after he pled guilty to 70 counts
      of burglary and associated crimes. He filed his first PCRA petition
      on July 27, 2010. The court appointed Henry Benedetto Forrest,
      Esquire, to represent Crossley.     However, Attorney Forrest
      subsequently moved to withdraw his appearance after concluding
      Crossley had no meritorious issues.

      The PCRA court granted Attorney Benedetto leave to withdraw and
      dismissed Crossley’s petition. This Court affirmed the dismissal
      on April 2, 2012. Shortly after, Crossley filed his second PCRA
      petition, asserting his guilty pleas were unlawfully induced.

      New counsel, Stephen Molineux, Esquire, was appointed to
      represent Crossley in the prosecution of his second PCRA petition.
      However, Attorney Molineux was subsequently permitted to
      withdraw after he concluded there was no merit in Crossley’s
      claims. The PCRA court dismissed Crossley’s second petition and
      this Court concluded Crossley’s petition was dismissed as
      untimely. The panel noted in its judgment order that Crossley
      argued his petition was timely because Attorney Forrest had
      abandoned him during the prosecution of his first PCRA petition.

      Approximately six months later, Crossley filed a petition for writ
      of habeas corpus. The court treated it as Crossley’s third PCRA
      petition and dismissed it as untimely. This Court affirmed on July
      13, 2016.

Commonwealth v. Crossley, 1920 EDA 2017, at 2-3 (Pa. Super., filed March

9, 2017)(citation omitted).       We concluded that, in accordance with

Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001), since Crossley’s

post-conviction habeas claims were cognizable under the PCRA, he was not

entitled to any additional pathway to relief:




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      On March 3, 2017, Crossley filed [the] petition [subsequently
      dismissed and thereafter affirmed by this Court on March 8,
      2018], asserting Attorney Forrest abandoned him. He argues this
      claim does not fall within the purview of the PCRA. He is wrong.

      The court properly treated Crossley’s petition as his fourth PCRA
      petition. Crossley did not plead, and has not argued, that his
      facially untimely petition qualifies for an exception to the PCRA’s
      time-bar.

Crossley, 1920 EDA 2017, at 3 (citations and quoted text omitted).

      In Crossley’s present habeas petition, he again advances the argument

that he was abandoned by counsel and “denied his right to assistance at his

initial PCRA [review]” because “counsel failed to conduct a complete and

thorough investigation; and, … counsel failed to present evidence supporting

those claims [Crossley] wished to pursue.” Appellant’s Brief, at 12. As this

Court has previously determined that Crossley’s abandonment contention falls

within the domain of a PCRA claim, Crossley’s current habeas petition is

therefore, necessarily, a PCRA petition.

      Furthermore, it is undisputed that Crossley filed his current habeas

petition before this Court decided his appeal from an unfavorable ruling on his

prior habeas/PCRA petition. As a result, Crossley’s present habeas petition is,

implicitly, a legal nullity, and the PCRA court was prohibited from exercising

jurisdiction over his filing.   “When 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.”     Commonwealth v. Lark, 746 A.2d 585, 588 (Pa.


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2000)(emphasis added). Recently, we elucidated upon and resultantly

bifurcated the fundamental holding of Lark: “a PCRA court may not entertain

a new PCRA petition when a prior petition is still under appellate review and,

thus, is not final; however, nothing bars a PCRA court from considering a

subsequent petition, even if a prior petition is pending, so long as the prior

petition is not under appellate review.” Commonwealth v. Montgomery,

181 A.3d 359, 364-65 (Pa. Super. 2018). Crossley’s prior petition was not

awaiting determination by the PCRA court, but was unquestionably under

appellate review with this Court. Accordingly, at the time Crossley filed his

present habeas petition, the PCRA court was jurisdictionally barred from

entertaining such a request.      Therefore, we affirm the PCRA court’s order

dismissing Crossley’s petition.

      Order affirmed.


      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/19




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