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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 October 2, 2017
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0001018-2004
                                        CP-02-CR-0014894-2003


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

CONCURRING MEMORANDUM BY STRASSBURGER, J.

                                                  FILED OCTOBER 25, 2018

      I concur with my learned colleagues in affirming the PCRA court’s order

dismissing Appellant’s motion.       I agree with my learned colleague Judge

Stabile that Appellant has 60 days from the September 5, 2018 denial of his

petition for allowance of appeal of his third PCRA petition to file a subsequent

PCRA petition asserting his after-discovered evidence claim. I further agree

with my learned colleague Judge Bowes that the PCRA court properly

construed Appellant’s motion as a PCRA petition (his fourth), and that the

PCRA court erred when it addressed the merits of his after-discovered

evidence claim without first considering whether it had jurisdiction over said

motion. Pursuant to Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), the


_________________________

* Retired Senior Judge assigned to the Superior Court.
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PCRA court, in construing Appellant’s motion as a PCRA petition, was

precluded from addressing it while his third PCRA petition was pending on

appeal.

      I write separately to express my view that Appellant’s filing was a

premature filing which I believe may be cured once the impediment to filing

has been removed. The PCRA court dismissed Appellant’s motion, which it

construed as a PCRA petition, as untimely; it should have dismissed it as

premature. Appellant alleges herein the newly discovered facts exception to

the PCRA timebar. If Appellant chooses to pursue this claim now that his prior

third petition has been resolved, his subsequent petition must be filed “within

sixty days of the date of the order which finally resolves the previous PCRA

petition, because this is the first ‘date the claim could have been presented.’”

Lark, 746 A.2d at 588 (citing 42 Pa.C.S. § 9545(b)(2)) (emphasis added).

      In my view, a speedy and cost-effective determination here requires

that once Appellant’s premature, fourth PCRA petition was filed, in violation of

Lark, Appellant’s 60 day clock began to run when his previous, third PCRA

petition, was finally resolved, not when the instant appeal is finally resolved.

To hold otherwise, in my view, would result in significant, potentially endless,

delay instead of permitting Appellant to cure his petition’s defect once the

impediment to its filing is removed.

      Now that Appellant’s third PCRA petition is, as of September 5, 2018,

finally resolved, there is no impediment to Appellant’s filing a subsequent

PCRA petition asserting his after-discovered evidence claim.           Because

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Appellant’s motion (which I construe as his fourth PCRA petition) was

premature under Lark, and because the defect (the still pending third PCRA

petition) precipitating the PCRA court’s dismissal of his fourth PCRA petition is

now cured, I construe Lark to find that Appellant, under this sequence of

events, has 60 days from our Supreme Court’s denial of his petition for

allowance of appeal, i.e., 60 days from September 5, 2018, to file a

subsequent PCRA petition asserting his after-discovered evidence claim.         I

therefore respectfully disagree with my learned colleague Judge Bowes that

Lark should be construed as requiring Appellant to wait until the conclusion

of the pendency of the instant appeal before he may file his subsequent PCRA

petition asserting his after-discovered evidence claim.

      Accordingly, I concur in affirming the order, allowing Appellant a 60-day

window from the denial of his petition for allowance of appeal in connection to

his third PCRA petition to file a subsequent PCRA petition asserting his after-

discovered evidence claim, and denying as moot Appellant’s application for

status of appeal.

      Judge Stabile joins this Concurring Memorandum.




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