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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
OMAR EDWARDS :
:
Appellant : No. 2604 EDA 2021
Appeal from the PCRA Order Entered November 19, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0209372-1995
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED JULY 27, 2022
Omar Edwards appeals pro se from the dismissal of his fifth Post
Conviction Relief Act (“PCRA”) petition as untimely. We affirm.
On October 28, 1994, Appellant shot and killed a man in a drive-by
shooting in the city of Philadelphia. On June 13, 1996, a jury found Appellant
guilty of first-degree murder.1 On January 27, 1997, the court sentenced
Appellant to life imprisonment without the possibility of parole.
Appellant filed a counseled direct appeal in February of 1997. On July
17, 1997, counsel submitted a motion requesting permission to withdraw and
indicating that Appellant wished to represent himself. On August 15, 1997,
____________________________________________
1 On February 5, 1996, a jury found Appellant guilty of criminal conspiracy,
reckless endangerment, and possessing an instrument of a crime, but was
unable to reach a verdict on the murder charge. Appellant’s conviction for
first-degree murder was the result of a retrial.
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this Court granted counsel’s request and gave Appellant sixty days to file a
pro se appellate brief. Despite requesting and receiving an extension of time,
Appellant never submitted an appellate brief. Consequently, on January 8,
1998, this Court dismissed Appellant’s direct appeal. Appellant did not seek
allowance of appeal in the Supreme Court of Pennsylvania. Thus, his
judgment of sentence became final on February 9, 1998. See 42 Pa.C.S. §
9545(b)(3).
Appellant filed a timely pro se PCRA petition. Appointed PCRA counsel
filed a motion to withdraw and no-merit letter pursuant to Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court issued Pa.R.Crim.P.
907 notice of its intent to dismiss the petition without a hearing, before
allowing counsel to withdraw and denying the petition. This Court affirmed
and our Supreme Court denied allowance of appeal. See Commonwealth v.
Edwards, 766 A.2d 885 (Pa.Super. 2000) (unpublished memorandum),
appeal denied, 771 A.2d 1279 (Pa. 2001). In 2002, 2015, and 2016, Appellant
litigated three more unsuccessful pro se PCRA petitions. See
Commonwealth v. Edwards, 823 A.2d 1024 (Pa.Super. 2003) (unpublished
memorandum) (affirming dismissal of Appellant’s second PCRA petition);
Commonwealth v. Edwards, 153 A.3d 1104 (Pa.Super. 2016) (unpublished
memorandum) (affirming dismissal of Appellant’s third PCRA petition);
Commonwealth v. Edwards, 221 A.3d 241 (Pa.Super. 2019) (non-
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precedential decision) (affirming dismissal of Appellant’s fourth PCRA
petition).
In 2019, while the appeal from the dismissal of his fourth petition was
pending, Appellant filed the petition that is the subject of this appeal. Therein,
Appellant requested reinstatement of his direct appeal rights nunc pro tunc.
Appellant argued that he satisfied the government interference exception to
the PCRA time bar because this Court failed to ensure that he knowingly
waived his right to counsel before allowing counsel to withdraw from his direct
appeal in 1997. The PCRA court took no action until Appellant’s pending PCRA
appeal had concluded. Thereafter, the PCRA court issued Rule 907 notice of
its intent to dismiss the fifth petition as untimely. On November 19, 2021,
after Appellant filed a response, the PCRA court dismissed Appellant’s PCRA
petition as untimely. This appeal followed.
Appellant asserts the following issue for our review: “Did the PCRA court
err[] when it denied the Appellant’s request for nunc pro tunc relief when
through counsel abandonment and government interference, the Appellant
was denied his constitutionally protected right to a counseled and effective
direct appeal in his case?” Appellant’s brief at 4.
We begin with a discussion of the pertinent legal principles. “Our
standard of review of a PCRA court’s dismissal of a PCRA petition is limited to
examining whether the PCRA court’s determination is supported by the record
evidence and free of legal error.” Commonwealth v. Whitehawk, 146 A.3d
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266, 269 (Pa.Super. 2016). “We grant great deference to the factual findings
of the PCRA court and will not disturb those findings unless they have no
support in the record. However, we afford no such deference to its legal
conclusions.” Commonwealth v. Dozier, 208 A.3d 1101, 1103 (Pa.Super.
2019) (quoting Commonwealth v. Brenner, 147 A.3d 915, 919 (Pa.Super.
2016)). “[W]here the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Pew, 189 A.3d 486, 488 (Pa.Super. 2018) (citation omitted). Finally, we
“may affirm a PCRA court’s decision on any grounds if the record supports it.”
Commonwealth v. Smith, 194 A.3d 126, 132 (Pa.Super. 2018) (citation
omitted).
It is well-established that a serial petition cannot be filed while a prior
PCRA appeal is pending. See Commonwealth v. Zeigler, 148 A.3d 849,
852 (Pa.Super. 2016) (“[P]revailing law requires that the subsequent PCRA
petition must give way to a pending appeal from the order denying a prior
petition.”). Accordingly, a petitioner must choose either to appeal from the
order denying his prior PCRA petition or to file a new PCRA petition. Id. This
Court has emphasized that a PCRA court cannot hold in abeyance a
subsequent petition filed when a first PCRA appeal was pending. See
Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa.Super. 2019); see also
Commonwealth v. Porter, 35 A.3d 4, 12 (Pa. 2012) (stating that holding
serial petitions in abeyance pending appeal in the same case perverts PCRA
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timeliness requirements). Instead, adherence to precedent demands that a
PCRA court dismiss any subsequent PCRA petition filed while that appeal is
pending. See Beatty, supra at 961 (citing Commonwealth v. Lark, 746
A.2d 585, 588 (Pa. 2000), overruled on other grounds by Commonwealth v.
Small, 238 A.3d 1267 (Pa. 2020)).
Accordingly, the PCRA court erred in holding the instant PCRA petition
in abeyance while the appeal from the dismissal of Appellant’s fourth petition
remained pending. As indicated above, Appellant had the option of either
going forward with his appeal from the order denying his fourth PCRA petition
or filing and pursuing his fifth PCRA petition, but he could not do both
simultaneously. See Zeigler, supra. As soon as Appellant decided to
exhaust the appeal from the denial of his fourth petition, the PCRA court was
required to dismiss any serial PCRA petitions that Appellant filed during the
pendency of that appeal. See Lark, supra. Accordingly, the PCRA court did
not have jurisdiction to consider the petition. Thus, we affirm dismissal of
Appellant’s current petition, albeit on different grounds from the PCRA court.
See Smith, supra at 132 (stating that an appellate court may affirm on any
basis supported by the record).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2022
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