J-S37039-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES JONES, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 584 EDA 2023

Appeal from the PCRA Order Entered February 3, 2023

In the Court of Common Pleas of Philadelphia County

Criminal Division at CP-51-CR-0907751-1993

BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 7, 2023

James Jones (Appellant) appeals pro se from the order dismissing his 

fourth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546. We affirm.

This Court previously explained:

A jury convicted Appellant of murder of the first degree, robbery, 

and possessing an instrument of crime. On April 3, 1995, the 

court sentenced him to life imprisonment on the count of murder, 

and a consecutive term of four to eight years for robbery. This 

Court affirmed his judgment of sentence after a nunc pro tunc

appeal, on August 22, 1997. Commonwealth v. Jones, 704 

A.2d 692 (Pa. Super. 1997) (unpublished memorandum). Our 

Supreme Court denied allowance of appeal on February 23, 1998. 

Commonwealth v. Jones, 716 A.2d 1248 (Pa. 1998). Appellant 

did not petition the United States Supreme Court for a writ of 

certiorari.
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Commonwealth v. Jones, No. 1438 EDA 2012, at *1 (Pa. Super. Ct. Feb. 

19, 2013) (unpublished memorandum) (affirming denial of Appellant’s second 

PCRA petition).

Appellant filed the instant pro se PCRA petition, his fourth, on October 

23, 2018. On December 19, 2022, the PCRA court issued Pa.R.Crim.P. 907 

notice of intent to dismiss the petition without a hearing. The PCRA court 

determined Appellant’s petition “was untimely filed and does not plead and 

prove any exception to the PCRA’s time-bar.” PCRA Court Opinion, 2/3/23, at 

1. The PCRA court entered an order dismissing Appellant’s petition on 

February 3, 2023. Appellant timely appealed.

As the Commonwealth observes, Appellant filed the instant PCRA 

petition while his petition for allowance of appeal of his third PCRA petition 

was pending before the Pennsylvania Supreme Court. Commonwealth Brief 

at 4. The Commonwealth argues “the PCRA court lacked jurisdiction to 

address the petition and this Court lacks jurisdiction” to address the appeal.1 

Id. We agree.

The docket indicates that on August 4, 2017, Appellant filed a notice of 

appeal, docketed at No. 2570 EDA 2017, from the denial of his third PCRA 

petition. This Court affirmed the dismissal of the third PCRA petition on 

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1

In the alternative, the Commonwealth argues the PCRA court properly 

dismissed Appellant’s PCRA petition because Appellant “untimely filed his 

PCRA petition and failed to plead and prove the applicability of an exception 

to the PCRA time-bar.” Commonwealth Brief at 4.
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September 21, 2018. Commonwealth v. Jones, No. 2570 EDA 2017 (Pa. 

Super. Sept. 21, 2018) (unpublished memorandum). On October 11, 2018, 

Appellant filed a petition for allowance of appeal with the Pennsylvania 

Supreme Court at No. 539 EAL 2018. Thus, the record confirms that Appellant 

filed the instant PCRA petition while the prior petition was pending review.

On June 12, 2023, this Court issued a rule to show cause directing

Appellant to explain why this appeal should not be quashed pursuant to 

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (overruled on other 

grounds) (holding that when a PCRA appeal is pending, an appellant may not 

file a subsequent PCRA petition until the appeal is resolved).

Appellant filed a response admitting that he filed the instant PCRA 

petition while his petition for allowance of appeal was pending. Response, 

7/17/23, at 1-2 (unpaginated). By per curiam order, this Court referred the 

issue to this merits panel and discharged the rule to show cause.

Pennsylvania law makes clear the trial 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. Commonwealth v.

Lark, 560 Pa. 487, 746 A.2d 585, 588 (Pa. 2000); see also

Commonwealth v. Montgomery, 181 A.3d 359, 364 (Pa. 

Super. 2018) (en banc), appeal denied, 647 Pa. 570, 190 A.3d 

1134 (Pa. 2018) (reaffirming that Lark precludes consideration of 

subsequent PCRA petition while appeal of prior PCRA petition is 

still pending). 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 
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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, supra.

Pennsylvania law also states unequivocally that no court has 

jurisdiction to place serial petitions in repose pending the outcome 

of an appeal in the same case. Id.; see also Commonwealth

v. Porter, 613 Pa. 510, 35 A.3d 4, 12 (Pa. 2012) (stating that 

holding serial petitions in abeyance pending appeal in same case 

perverts PCRA timeliness requirements and invites unwarranted 

delay in resolving cases, as well as strategic litigation abuses).

Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa. Super. 2019).

It is undisputed that Appellant’s petition for allowance of appeal was 

pending with the Pennsylvania Supreme Court when Appellant filed the instant

PCRA petition.2 Nonetheless, the PCRA court dismissed Appellant’s petition as 

untimely. We may affirm a PCRA court’s decision on any legal basis supported 

by the record. Commonwealth v. Howard, 285 A.3d 652, 657 (Pa. Super. 

2022). Accordingly, we affirm the dismissal of Appellant’s fourth PCRA petition 

for lack of jurisdiction because Appellant’s third PCRA petition was pending 

before the Pennsylvania Supreme Court.

Order affirmed.

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2 The Pennsylvania Supreme Court denied the petition on April 3, 2019. 

Commonwealth v. Jones, 205 A.3d 1234 (Pa. 2019).
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Date: 11/7/2023