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NON-PRECEDENTIAL DECISION                     - SEE SUPERIOR COURT I.O.P.            65.37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

ANTHONY THOMASON,                                              No. 260 EDA 2016

                             Appellant


                    Appeal from the PCRA Order, December 7, 2015,
               in   the Court of Common Pleas of Philadelphia County
                    Criminal Division at No. CP-51-CR-0500321-2004


BEFORE:      BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                                FILED APRIL 04, 2017

         Anthony Thomason appeals from                the   December 7,       2015    order

dismissing his second petition filed pursuant to the Post -Conviction Relief Act

("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

         The underlying facts of this case were summarized by the PCRA court

and need not be reiterated here. (See PCRA court opinion, 2/10/16 at 3-4.)

In sum, appellant was found guilty of first -degree murder, possessing

instruments of crime, carrying           a   firearm without   a   license, and carrying   a


firearm on public streets or public property in Philadelphia' after he shot and

killed James Preston Thomas in the early morning hours of August 2, 2003.

On March 27, 2006, appellant was sentenced to a mandatory aggregate




'    18 Pa.C.S.A. §§ 2502, 907, 6106, and 6108, respectively.
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term of life imprisonment without the possibility of parole. On October 18,

2007, this court affirmed appellant's judgment of sentence, and our supreme

court denied appellant's petition for allowance of appeal on May 8, 2008.

See Commonwealth v. Thomason, 943 A.2d 324 (Pa.Super. 2007)

(unpublished memorandum), appeal denied, 947 A.2d 737 (Pa. 2008).

        On April 14, 2009, appellant filed a   timely pro se   PCRA   petition and

counsel was appointed to represent him.        Appellant filed amended petitions

on August 17, 2009 and August 13, 2010.        On November 4, 2011, the PCRA

court entered an order dismissing appellant's petition.        On December 20,

2013, this court affirmed the PCRA court's order, and appellant filed            a


petition for allowance of appeal with our supreme court on January 14,

2014. See Commonwealth v. Thomason, 93 A.3d 515 (Pa.Super. 2013)

(unpublished memorandum), appeal denied, 92 A.3d 811 (Pa. 2014).

       While his petition for allowance of appeal was pending before our

supreme court, appellant filed the instant pro se PCRA petition, his second,

on March 7, 2014.2 On September 17, 2014, the PCRA court sent appellant

notice of its intent to dismiss his petition without    a   hearing, pursuant to

Pa.R.Crim.P. 907(1).     Appellant responded to the PCRA court's Rule 907

notice on September 30, 2014.       Following several continuances, the PCRA

court entered an order on November 17, 2015, dismissing appellant's


2 The record reflects that appellant's petition for allowance of appeal was
ultimately denied by our supreme court on May 21, 2014. (See certified
record at 31.)

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petition. The docket entry for this order incorrectly indicates that appellant

had     been appointed counsel who requested             permission to withdraw in

accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The
record further reflects that the PCRA court mistakenly entered              a   second

Rule 907 notice on November 19, 2015, rather than forwarding appellant its

November 17, 2015 order in accordance with Rule 907(4).3 The PCRA court

erroneously indicated in this second Rule 907 notice that appellant's

appointed counsel had filed         a   Turner/Finley letter   and concluded that his

issues were without merit.         (See Rule 907 notice, 11/19/15; certified record

at 35.)     Appellant filed   a   response to the PCRA court's dismissal notice on

December 3, 2015.

         On December 7, 2015, the PCRA court entered an order vacating its

November 17, 2015 order "because             a   copy of that ORDER was not sent to

[appellant.]" (PCRA court order, 12/7/15; certified record at 37.) This order

3
     Rule 907(4) provides as follows:

               (4)   When    the petition is dismissed without a
                     hearing, the judge promptly shall issue an
                     order to that effect and shall advise the
                     defendant by certified mail, return receipt
                     requested, of the right to appeal from the final
                     order disposing of the petition and of the time
                     limits within which the appeal must be filed.
                     The order shall be filed and served as provided
                     in Rule 114.

Pa.R.A.P. 907(4).


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dismissed appellant's second petition without                  a   hearing because it was both

untimely filed and premature.             (Id.)         The order further instructed that the

November 17, 2015 docket entry be amended to reflect that, "[appellant's]

PCRA      petition was dismissed because it was untimely filed and because it

was filed while his petition for allowance of appeal was still pending."                         (Id.)
The PCRA court clarified that no                  Turner/Finley letter             had been filed and

that appellant had not been appointed counsel "because the instant matter

commenced with the filing of                  a    premature and untimely second PCRA

petition." (Id.)

       Appellant filed        a   pro se notice of appeal that was docketed                         on

January 13, 2016.4 On May 5, 2016, this court directed appellant to show

cause as to why his January 13, 2016 appeal should not be quashed as

untimely.        (Per curiam order, 5/5/16.)                  On May 25, 2016, this court

entered an order discharging its May 5, 2016 rule to show cause and

referred the timeliness issue to the instant panel.                               (Per curiam order,

5/25/16.)

        Preliminarily, we must address whether appellant's pro se appeal                             is

timely.     It   is well   settled that   a   "notice of appeal       .   .   .   shall be filed within

30 days after the entry of the order from which the appeal is taken."




4Although not ordered to do so, appellant filed a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b), on
February 9, 2016.    The PCRA court filed its Rule 1925(a) opinion on
February 10, 2016.

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Pa.R.A.P. 903(a).     In the instant matter, appellant's notice of appeal was

filed on January 13, 2016, 37 days after the entry of the December 7, 2015

order dismissing his second PCRA petition.          Although appellant's notice of

appeal appears to be untimely on its face, we conclude that the prisoner

mailbox rule applies to this case. Where      a   pro se appellant    is   incarcerated,

as is the case here, an appeal is deemed filed on the date the prisoner

deposits the appeal with prison authorities or places it in       a   prison mailbox.

See Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa.Super. 2011),

appeal denied, 46 A.3d 715      (Pa. 2012).

        Instantly, the record reflects that appellant deposited his pro se notice

of appeal in the prison mailbox on December 20, 2015, with proof of service

that the notice was mailed to the court on that date.         (See "Supplemental

Response to Order to Show Cause Issued on May 5, 2016," 6/13/16 at

Exhibit AA, at 4-5.)      Appellant's notice of appeal, however, mistakenly

omitted two digits from the case docket number.5 As          a   result, the clerk of

courts returned the notice of appeal to appellant with an undated letter

advising him to resubmit his "motion" with the correct number.                  (Id. at
Exhibit AA, at 8-9.) The envelope accompanying this letter was post -marked

January 5, 2016, and received by prison authorities at SCI Benner on

January 6, 2016. (Id. at Exhibit AA, at 7.) On January 13, 2016, appellant


5 The caption on appellant's notice of appeal contained docket number
CP-51-CR-05321-2004; the correct docket number is CP-51-CR-0500321-
2004.

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deposited      a   pro se notice of appeal with prison authorities that included the
correct docket number; this notice of appeal was docketed that same day.

(See notice of appeal, 1/13/16; certified record at 38.)

           There   is no   indication that appellant's pro se notice of appeal was

time -stamped with the date it was initially received by the clerk of courts.6

However, the record reflects that the envelope accompanying the appeal

was time -stamped as having been received on December 24, 2015, well

before the 30 -day appeal period expired.          (See "Supplemental Response to

Order to Show Cause Issued on May 5, 2016," 6/13/16 at Exhibit AA, at 10.)

Pennsylvania Rule of Appellate Procedure 905 requires that, "[u]pon receipt

of the notice of appeal the clerk shall immediately stamp it with the date of

receipt, and that date shall constitute the date when the appeal was taken,

which date shall be shown on the docket."                   Pa.R.A.P. 905(a)(3).   The

"[f]ailure of      an appellant to take any step other than the timely filing of a

notice of appeal does not affect the validity of the appeal." Pa.R.A.P. 902.

Accordingly,         we    deem    the   instant   appeal    to   be   timely.     See

Commonwealth v. Williams, 106 A.3d 583, 585-589                    (Pa. 2014) (holding

that   a   clerk of courts lacks the authority to reject, as defective, an otherwise

timely notice of appeal; "therefore [it is] obligated to accept and process

notices of appeal upon receipt in accordance with the Rules of Appellate



6
 We note that court -appointed counsel entered her appearance in this court
on June 10, 2016, and has filed a brief on appellant's behalf.


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Procedure,    notwithstanding    any   perceived   defects    therein"   (citations

omitted)).

        On appeal, appellant presents the following issues   for our review:

             [1.]   Whether the Order filed on December 7, 2015
                    is not free of legal err [sic] because the PCRA
                    Court did not comply with Pa.R.Cr[im].P. 907
                    and provide notice informing [appellant] of the
                    reasons for dismissing his PCRA Petition
                    without a hearing and effectively denying
                    [appellant] a meaningful opportunity to amend
                    his PCRA petition?

             [2.]   Whether the PCRA Court abused its discretion
                    in dismissing the second PCRA petition without
                    a hearing where a       review of the record
                    indicates [appellant] was denied the assistance
                    of counsel in connection with the first PCRA
                    petition?

             [3.]   Whether the PCRA Court abused its discretion
                    in dismissing the second PCRA petition for lack
                    of jurisdiction because it was filed while the
                    petition for allowance of appeal from the denial
                    of the first PCRA petition was pending?

             [4.]   Whether the PCRA Court abused its discretion
                    when it found the second PCRA Petition to be
                    untimely?

             [5.]   Whether the conviction was obtained and
                    sentence imposed in violation of the right to
                    effective assistance of counsel guaranteed by
                    the Sixth and Fourteenth Amendments to the
                    Constitution of the United States?

Appellant's brief at 2-3.

       We    must begin by addressing whether the PCRA court lacked

jurisdiction over appellant's petition. The record reflects that appellant filed



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the instant pro se PCRA petition on March 7, 2014, during the pendency of

his appeal from the order denying his                      first   PCRA   petition. It   is well   settled

that an appellant cannot file                  a   successive PCRA petition while his previous

PCRA    petition       is   still pending on appeal. "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, or upon the expiration of the time for

seeking such review."                 Commonwealth v. Lark, 746 A.2d 585, 588                         (Pa.

2000); see also Commonwealth v. Ali, 10 A.3d 282, 320 (Pa. 2010)

(citing Lark for the proposition that "as [a] matter of jurisdiction, [a] PCRA

court cannot entertain new PCRA claims or [a] new PCRA petition when [a]

prior petition     is       still under review on appeal").           Accordingly, we agree with

the PCRA court that it did not possess jurisdiction to address the merits of

appellant's second PCRA petition.

        Furthermore, even if the appeal of appellant's first PCRA petition was

not pending, the timeliness of appellant's second PCRA petition implicates

the jurisdiction of this court and the PCRA court.                         See Commonwealth v.

Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation omitted).                                  All PCRA

petitions, including second and subsequent petitions, must be filed within

one year of when                  a   defendant's judgment of sentence becomes final.

42 Pa.C.S.A.       §    9545(b)(1). "A judgment becomes final at the conclusion of

direct review, including discretionary review in the Supreme Court of the


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United States and the Supreme Court of Pennsylvania, or at the expiration of

the time for seeking the review."        Id.   §   9545(b)(3).      If   a PCRA    petition   is

untimely,   a   court lacks jurisdiction over the petition.             Commonwealth v.
Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014).

        Here, it is undisputed that appellant's March 7, 2014 PCRA petition is

patently untimely.        Appellant's judgment of sentence became final on

August 6, 2008, 90 days after our supreme court denied his petition for

allowance of appeal and the time for filing          a   petition for   certiorari with the
United States Supreme Court expired.           See 42 Pa.C.S.A.           §   9545(b).   As a

result, the PCRA court lacked jurisdiction to review appellant's petition on

this basis as well, unless appellant alleged and proved one of the statutory

exceptions to      the time    bar set    forth in Section 9545(b)(1).                   See

Commonwealth v. Lawson, 90 A.3d                    1, 5 (Pa.Super. 2014).          Here, we

agree with the well -reasoned rationale of the PCRA court that appellant

failed to prove any of the statutory exceptions to the PCRA time -bar.                   (See

PCRA    court opinion, 2/10/16 at 5-9.)

       Accordingly, we find the PCRA court lacked jurisdiction to consider the

merits of appellant's second PCRA petition and properly dismissed it as

untimely and prematurely filed. We affirm the December 7, 2015 order of

the PCRA court.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 4/4/2017




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