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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANCIS J. BOYD :
:
Appellant : No. 2599 EDA 2017
:
Appeal from the PCRA Order July 26, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0605971-1976
BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM, J.
MEMORANDUM BY OTT, J.: FILED MAY 31, 2018
Francis J. Boyd appeals, pro se, from the order entered July 26, 2017,
in the Philadelphia County Court of Common Pleas denying his serial PCRA
petition.1 Boyd seeks relief from the judgment of sentence of an aggregate
term of life imprisonment imposed on February 9, 1977, following his jury
conviction of second-degree murder and related charges. On appeal, he
argues the PCRA court erred in dismissing his petition, which he claims is an
amendment to a prior petition filed in 2008, and subsequently amended in
2010, because he is subject to an illegal sentence. We affirm.
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Retired Senior Judge assigned to the Superior Court.
1 See Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
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Since his judgment of sentence was affirmed by this Court in October of
1979,2 Boyd has filed numerous petitions for collateral relief. Relevant to this
appeal, on April 30, 2012, he filed a pro se PCRA petition, which he
subsequently amended four times. Ultimately, the PCRA court denied relief
by order dated May 30, 2017, and Boyd filed a timely notice of appeal on June
6, 2017.3 Thereafter, on June 16, 2017, Boyd filed the instant PCRA petition,
which, as noted above, he averred was an amendment to a prior petition filed
in 2008, and amended in 2010. The PCRA court dismissed the petition on July
26, 2017, due the pending appeal from its May 30th order. This timely appeal
follows.
In Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000), the
Pennsylvania Supreme 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.” Here, Boyd filed a pro se PCRA petition on June 16, 2017, while the
appeal from his prior petition was (and still is) pending in this Court. See
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2 See Commonwealth v. Boyd, 412 A.2d 588 (Pa. Super. 1979).
3 Although the appeal is date-stamped June 22, 2017, the certificate of service
attached to the notice avers that Boyd submitted it to the prison authorities
for mailing on June 6, 2017. Under the “‘prisoner mailbox rule,’ a document
is deemed filed when placed in the hands of prison authorities for mailing.”
Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (2006). Accordingly, we
consider Boyd’s notice of appeal to have been filed on June 6, 2017.
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2104 EDA 2017. Therefore, the PCRA court properly determined it had no
jurisdiction to review the June 16th petition.
Furthermore, we reject Boyd’s argument that his June 16, 2017, petition
was simply an amendment of a petition he originally filed in 2008, which the
PCRA court never formally dismissed. See Boyd’s Brief at 2. We recognize
that the Lark Court stated its holding would “not preclude a trial court from
granting leave to amend a PCRA petition that is currently pending before
that court.” Lark, supra. 746 A.2d at 588 n.2 (emphasis supplied). Indeed,
Boyd maintains because the court never ruled upon his 2008 petition, that
petition is still pending. We disagree.
First, we note Boyd has filed numerous petitions since that time, all of
which the PCRA court denied. Therefore, his claim that the present filing is
an “amendment” of the 2008 petition is specious. Second, at the time Boyd
filed the petition on July 31, 2008 (followed by an amendment in February of
2010), an appeal from a prior petition was pending in this Court.4 See 2184
EDA 2008. That ruling was later affirmed by this Court on October 27, 2010.
See Commonwealth v. Boyd, 15 A.3d 543 (Pa. Super. 2010) (unpublished
memorandum). Accordingly, like here, at the time the 2008 petition (and
accompanying amendment) was filed, the PCRA court had no jurisdiction to
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4The docket reflects that on July 17, 2008, Boyd filed a notice of appeal from
an order of the PCRA court entered June 18, 2008.
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consider it. See Lark, supra.5 The fact the PCRA court apparently neglected
to enter a final order after issuing Pa.R.Crim.P. 907 notice of its intent to
dismiss the petition on July 12, 2010, is of no moment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/18
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5 We note this Court’s recent en banc decision in Commonwealth v.
Montgomery, ___ A.3d ___, 2018 PA Super 54 (Pa. Super. 2018) (en banc),
does not compel a different result. In that case, our Court carved out an
exception to Lark, supra, and held “PCRA courts are not jurisdictionally
barred from considering multiple PCRA petitions related to the same judgment
of sentence at the same time[.]” Montgomery, supra, 2018 PA Super 54,
at 10 (emphasis supplied). However, the Montgomery panel explained that
Lark still applies in cases such as the one before us, and “precludes
consideration of a subsequent petition from the time a PCRA order is appealed
until no further review of that order is possible.” Id. at 8.
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