J. S29033/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
FLOYD M. BROWN,                          :         No. 2731 EDA 2018
                                         :
                        Appellant        :


                    Appeal from the Order, June 4, 2018,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0609041-1983


BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 25, 2019

      Floyd M. Brown appeals pro se from the June 4, 2018 order dismissing

his petition1 filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546, as premature. After careful review, we affirm.

      The PCRA court set forth the relevant factual history of this case in its

October 18, 2018 opinion, and we need not reiterate it here. (See PCRA court




1 Although appellant has styled his December 26, 2017 pro se petition as a
“Petition to Enforce Plea Agreement/Writ of Habeas Corpus,” we treat
appellant’s petition as a PCRA petition. See Commonwealth v. Taylor, 65
A.3d 462, 465 (Pa.Super. 2013) (stating, “[i]t is well-settled that the PCRA is
intended to be the sole means of achieving post-conviction relief. Unless the
PCRA could not provide for a potential remedy, the PCRA statute subsumes
the writ of habeas corpus.” (citations omitted)); see also 42 Pa.C.S.A.
§ 9542 (stating, “[t]he action established in this subchapter shall be the sole
means of obtaining collateral relief and encompasses all other common law
and statutory remedies for the same purpose that exist when this subchapter
takes effect, including habeas corpus and coram nobis.”).
J. S29033/19

opinion, 10/18/18 at 1-3.) In sum, on September 20, 1983, appellant pled

guilty to second-degree murder and was immediately sentenced to life

imprisonment. Appellant filed his first PCRA petition on April 25, 2000, and

his second PCRA petition on August 24, 2012.         The instant pro se PCRA

petition, appellant’s third, was filed on December 26, 2017.          The record

reflects that at the time of this filing, appellant’s appeal from the PCRA court’s

August 31, 2017 order dismissing his second PCRA petition as untimely was

still pending before this court.       (See Docket No. 3165 EDA 2017.)2

Accordingly, on June 4, 2018, the PCRA court entered an order dismissing

appellant’s instant petition as premature, pursuant to Commonwealth v.

Lark, 746 A.2d 585 (Pa. 2000) (holding that the PCRA court has no jurisdiction

to consider a subsequent PCRA petition while an appeal from the denial of the

petitioner’s prior PCRA petition in the same case is still pending on appeal).

(See PCRA court order, 6/4/18 at n.1.)         This timely appeal followed on

June 13, 2018.

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the




2 Appellant’s appeal at No. 3165 EDA 2017 was subsequently dismissed for
failure to file a brief on January 3, 2019. (See per curiam order, 1/3/19.)


                                      -2-
J. S29033/19

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). “This Court grants great deference to the findings of the

PCRA court, and we will not disturb those findings merely because the record

could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d

136, 140 (Pa.Super. 2002) (citation omitted). Lastly, we recognize that “[t]he

PCRA’s timeliness requirements are jurisdictional in nature and must be

strictly construed[.]” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267

(Pa. 2008) (citation omitted), cert. denied, 555 U.S. 916 (2008).

      Pennsylvania law makes clear the PCRA court has no jurisdiction to

consider a PCRA petition while an appeal from the denial of a petitioner’s prior

PCRA petition is still pending on appeal. In Lark, a petitioner filed his second

PCRA petition, while an appeal from his first PCRA petition was pending with

this court. Lark, 746 A.2d at 586-587. The PCRA court dismissed the second

petition.   Id. at 587.   On appeal, the Lark court held that, “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.” Id. at 588 (emphasis

added); see also Commonwealth v. Montgomery, 181 A.3d 359, 364

(Pa.Super. 2018) (en banc) (reaffirming that Lark precludes consideration of

subsequent PCRA petition while appeal of prior PCRA petition is still pending),

appeal denied, 190 A.3d 1134 (Pa. 2018). Consequently, as a panel of this



                                     -3-
J. S29033/19

court recently explained in Commonwealth v. Beatty,             A.3d     , 2019

WL 1512347 (Pa.Super. 2019):

           A petitioner must choose either to appeal from the
           order denying his prior PCRA petition or to file a new
           PCRA petition; the petitioner cannot do both, i.e., file
           an appeal and also file a PCRA petition, because
           “prevailing law requires that the subsequent petition
           must give way to a pending appeal from the order
           denying a prior petition.”       Commonwealth v.
           Zeigler, 148 A.3d 849, 852 (Pa.Super. 2016). In
           other words, a petitioner who files an appeal from an
           order denying his prior PCRA petition must withdraw
           the appeal before he can pursue a subsequent PCRA
           petition. Id. If the petitioner pursues the pending
           appeal, then the PCRA court is required under Lark to
           dismiss any subsequent PCRA petitions filed while that
           appeal is pending. Lark, [746 A.2d at 588].

Beatty, 2019 WL 1512347 at *2 (citation formatting amended).

     Here, appellant filed the instant PCRA petition, his third, while the appeal

from the denial of his second PCRA petition was still pending. Based on the

foregoing, the PCRA court had no jurisdiction to review the merits of

appellant’s petition and properly dismissed it as premature.

     Order affirmed. The Commonwealth’s application for extension of time

to file a brief nunc pro tunc is denied as moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 6/25/19



                                     -4-
