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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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