J-S06022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    BRUCE MURRAY                               :
                                               :   No. 2061 EDA 2017
                       Appellant               :

               Appeal from the PCRA Order Entered June 6, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-1111091-1982


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED MARCH 26, 2018

        Appellant Bruce Murray, pro se, appeals from the June 6, 2017 order

entered in the Court of Common Pleas of Philadelphia County (“PCRA court”),

which dismissed his premature request for collateral relief under the Post

Conviction Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

        The procedural history of this case is as follows. On June 24, 1983, a

jury convicted Murray of second-degree murder, robbery, criminal conspiracy,

and possessing an instrument of crime.1 He was sentenced to life

imprisonment for second-degree murder, a consecutive term of one to two

years’ imprisonment for conspiracy, and a concurrent term of one to two years

imprisonment for possessing an instrument of crime. Murray filed a timely

notice of appeal and this Court affirmed his judgment of sentence on
____________________________________________


1   18 Pa.C.S.A. §§ 2502(b), 3701, 903, and 907 respectively.
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November 1, 1985. Commonwealth v. Murray, 505 A.2d 1035 (Pa.Super.

1985). He then filed an untimely petition for allowance of appeal to the

Pennsylvania Supreme Court on December 5, 1985. The Pennsylvania

Supreme Court denied the untimely petition on November 26, 1986.

Commonwealth v. Murray, No. 1872 E.D. Allocatur Docket 1985.

       On December 30, 1986, Murray filed his first pro se PCHA petition and

counsel was appointed. On November 30, 1995, the petition was denied. On

November 13, 1996, this Court affirmed the denial of relief except to the

judgment of sentence imposed for possession of an instrument of crime, which

we concluded was illegal and therefore vacated. Commonwealth v. Murray,

688 A.2d 1229 (Pa.Super. 1996) (unpublished memorandum), appeal denied,

704 A.2d 636 (Pa. 1997). He then filed a series of petitions for post-conviction

relief, all of which were dismissed as untimely.2

       On April 10, 2015, Murray filed his fourth petition for post-conviction

relief. The PCRA court dismissed the petition as untimely on February 3, 2016

and Murray appealed. While that appeal was pending in this Court, Murray

filed his fifth petition. The PCRA court dismissed his fifth petition as premature.

While the appeal from the dismissal of his fourth petition was still pending in

this Court, Murray filed his sixth petition on April 28, 2017. On June 6, 2017,


____________________________________________


2 Commonwealth v. Murray, 972 A.2d 588 (Pa.Super. 1996);
Commonwealth v. Murray, appeal denied, 980 A.2d 607 (Pa. 2009);
Commonwealth   v.  Murray,     105   A.3d   38   (Pa.Super.   2014);
Commonwealth v. Murray, appeal denied, 105 A.3d 736 (Pa. 2014).

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the PCRA court dismissed the petition as premature and the instant appeal

followed.

      On appeal, Murray presents four issues for our review:

      I.     Whether the rules of the court are being followed in the
             processing of pro se litigate filing by the prothonotary/clerk
             of courts?

      II.    Whether rule of appellate procedure 108(b) civil order, the
             date of entry of an order in a matter subject the
             Pennsylvania Rule of Civil Procedure shall be the day on
             which the clerk makes the notation in the docket Pa. R. Civ.
             P. 236(b), has any bearing on this matter?

      III.   Plaintiff, has a due process right under both Federal and
             Pennsylvania Constitution and his right under the
             Pennsylvania Constitution to have Judges adjudicating his
             case not violate any Cannon of Legal or Judicial ethics
             prescribed by the Supreme Court Art. V. Sec. 17 true?

      IV.    Are the lower courts intentionally clogging the Superior
             Courts and mislabeling petitions to dismiss?

Appellant’s Brief at 6.

      We do not reach Murray’s issues on appeal because his sixth petition

was not properly before the lower court. 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). Murray

admits he filed the subject PCRA petition while the appeal was pending.

Appellant’s Brief at 9. The dismissal of his fourth petition was affirmed by this

Court on January 17, 2018. Commonwealth v. Murray, No. 588 EDA 2016

                                      -3-
J-S06022-18



(Pa.Super. filed Jan. 17, 2018). As such, Murray was barred from filing a

subsequent PCRA petition until the resolution of the pending appeal. Thus the

trial court properly dismissed his sixth petition as premature.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/18




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