J-S34019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    DAVON RENEE HAYES

                             Appellant               No. 1617 WDA 2017


               Appeal from the PCRA Order Filed October 2, 2017
               In the Court of Common Pleas of Allegheny County
    Criminal Division at Nos.: CP-02-CR-0014894-2003; CP-02-CR-0001018-
                                      2004


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

MEMORANDUM BY STABILE, J.:                        FILED OCTOBER 25, 2018

        Appellant Devon Renee Hayes pro se appeals from the October 2, 2017

order of the Court of Common Pleas of Allegheny County, which dismissed as

untimely his “Motion for Leave to File Newly Discovered Exculpatory Evidence

and Preserve Rights for of (sic) Newly-Discovered and Exculpatory Evidence,”

which the court treated as a petition for collateral relief under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-56. Upon review, we

affirm.

        The facts and procedural history of this case are undisputed. Briefly,

Appellant was sentenced to life imprisonment in connection with the shooting

death of William Anderson during an armed robbery of a store in the East


____________________________________________


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



Liberty neighborhood of Pittsburgh. Following the expiration of the 90-day

period within which Appellant could seek certiorari to the United States

Supreme Court, Appellant’s judgment of sentence became final on July 8,

2008.1 After the denial of his first two PCRA petitions, Appellant filed his third

PCRA petition on October 7, 2016, which the PCRA court denied on November

16, 2016.     Appellant appealed to this Court.     During the pendency of his

appeal, Appellant filed with the PCRA court the instant “Motion for Leave to

File Newly Discovered Exculpatory Evidence and Preserve Rights for of (sic)

Newly-Discovered and Exculpatory Evidence [(“Motion”)].” Treating it as his

fourth petition for collateral relief, the PCRA court dismissed as untimely the

motion on October 2, 2017. Appellant pro se timely appealed to this Court.

       Shortly thereafter, on November 9, 2017, this Court affirmed the denial

of Appellant’s third PCRA petition. On September 5, 2018, our Supreme Court

____________________________________________


1 Appellant filed a direct appeal in this Court asserting that the trial court erred
in refusing to suppress statements made during a police interview. We
affirmed the judgment of sentence. Commonwealth v. Hayes, 918 A.2d
786 (Pa. Super. filed December 21, 2006) (unpublished memorandum). Our
Supreme Court granted in part Appellant’s petition for allowance of appeal and
the case was remanded to this Court to consider Appellant’s claim that his
confession should have been suppressed because his waiver of rights under
Miranda v. Arizona, 384 U.S. 436 (1966), was neither knowing nor
voluntary. Commonwealth v. Hayes, 926 A.2d 925 (Pa. 2007). On remand,
we affirmed the judgment of sentence after determining that Appellant’s
confession was knowingly and voluntarily made. Appellant filed another
petition for allowance of appeal, which our Supreme Court denied on April 9,
2008. Commonwealth v. Hayes, 943 A.3d 313 (Pa. Super. filed October
30, 2007) (unpublished memorandum), appeal denied, 946 A.2d 685 (Pa.
2008).



                                           -2-
J-S34019-18



denied Appellant’s petition for allowance of appeal.          Commonwealth v.

Hayes, No. 60 WAL 2018, 2018 WL 4214636 (Pa. 2018).

       On appeal,2 Appellant raises a single issue for our review. He argues

that the PCRA court erred in treating the Motion as his fourth PCRA petition.

Appellant’s Motion, filed while his third PCRA appeal was pending in this Court,

constituted an effort by Appellant to preserve a filing date in the trial court so

that he could, at a later time, file a petition to raise an issue of after-discovered

evidence. In filing the Motion, Appellant sought to toll the 60-day period for

raising a claim premised on after-discovered evidence, as required by 42

Pa.C.S.A. § 9545(b)(2). He also correctly recognized that he is barred from

filing another PCRA petition while a prior petition is pending on appeal. See

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

       At the outset, we note that when Appellant filed the Motion, he did so

without identifying any legal authority upon which the Motion was premised.

Indeed, even on this appeal, Appellant fails to cite any authority, within or

outside of the PCRA, that permits him to toll the 60-day period for raising a

claim of after-discovered evidence before filing any such claim. Additionally,

our research does not yield any case law, statute or rule that supports the

filing of a motion to reserve a filing date for a later pleading on collateral

____________________________________________


2“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).

                                           -3-
J-S34019-18



review. Thus, given the unorthodox nature of the Motion, we need not decide

whether the Motion would qualify as Appellant’s fourth PCRA petition or

otherwise be subject to the PCRA, as we affirm dismissal of the Motion on its

merits.   See Commonwealth v. Lauro, 819 A.2d 100 (Pa. Super. 2003)

(noting that we may affirm a lower court’s decision on any basis), appeal

denied, 830 A.2d 975 (Pa. 2003).

       Even assuming that the Motion was Appellant’s fourth PCRA petition, it

still would have been a nullity under Lark. As we recently explained:

       In [Lark], our Supreme Court held that “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.” Id. at 588. Our Supreme Court reasoned that “[a]
       second appeal cannot be taken when another proceeding of the
       same type is already pending.” Id. (citation omitted). 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 within [60]
       days of the date of the order that finally resolves the [pending]
       PCRA petition[.]” Commonwealth v. Steele, 599 Pa. 341, 961
       A.2d 786, 908-809 (2008).


Commonwealth v. Montgomery, 181 A.3d 359, 363 (Pa. Super. 2018) (en

banc).3 As noted, Appellant’s third PCRA petition was pending in this Court




____________________________________________


3 The 60-day requirement is limited to exceptions set forth in Section
9545(b)(1) of the PCRA. Claims of ineffective assistance of counsel would not
overcome the jurisdictional timeliness requirements of the PCRA.         See
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005); see also
Commonwealth v. Howard, 788 A.2d 351, 355 (Pa. 2002) (“The timeliness
requirements crafted by the legislature would thus effectively be eviscerated
by any petitioner who was willing to file serial PCRA petitions alleging
ineffective assistance of counsel.”) (citations omitted).

                                           -4-
J-S34019-18



when he filed the Motion. Thus, assuming the Motion was his fourth PCRA

petition, it was a legal nullity under Lark.

       Lastly, irrespective of whether the Motion was Appellant’s fourth PCRA

petition, as mentioned earlier, our Supreme Court on September 5, 2018

denied Appellant’s petition for allowance of appeal in connection with his third

PCRA petition. As a result, consistent with Lark, Appellant has 60 days from

the September 5, 2018 denial of his petition for allowance of appeal to assert

a timely after-discovered evidence claim. Accordingly, we affirm the PCRA

court’s dismissal of the Motion.4

       Appeal affirmed. Application for relief denied.

       Judge Strassburger files a concurring memorandum in which Judge

Stabile joins.

       Judge Bowes files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2018




____________________________________________


4Appellant’s October 5, 2018 “Application for Status of Appeal” is denied as
moot.

                                           -5-
