J-S48013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

SHAWN L. BURTON

                        Appellant                   No. 1467 WDA 2014


                Appeal from the PCRA Order August 7, 2014
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0004017-1993
                                       CP-02-CR-0004276-1993


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

JUDGMENT ORDER BY PANELLA, J.                    FILED OCTOBER 20, 2015

      Appellant, Shawn L. Burton, appeals pro se from the PCRA court’s

August 7, 2014 order denying his serial PCRA petition. We affirm.

      The PCRA court ultimately dismissed Appellant’s serial PCRA petition as

untimely; it should have dismissed the petition as premature. Appellant filed

the instant PCRA petition while an appeal was pending from the dismissal of

Appellant’s prior PCRA petition, docketed at 1459 WDA 2013. See

Commonwealth v. Burton, ___ A.3d ___, 2015 WL 5076284 (Pa. Super.,

filed August 25, 2015) (en banc). Appellant’s petition for allowance of appeal

in that case, filed on September 11, 2015, is currently pending before our

Supreme Court, docked in that Court at 367 WAL 2015.

     It is well-settled that “when an appellant’s PCRA appeal is pending

before a court, a subsequent PCRA petition cannot be filed until the
J-S48013-15



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).

Thus, Appellant’s serial PCRA petition was prematurely filed and should have

been dismissed as such.1

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2015




____________________________________________


1
  Appellant alleges in the current PCRA petition the newly discovered facts
exception to the PCRA timebar – apparently based upon facts different than
those alleged in his still pending petition. If Appellant chooses to pursue the
instant petition after the resolution of review of his prior petition, the
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.’” Larkin, 746 A.2d at 588 (citing
42 Pa.C.S. § 9545(b)(2)).



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