J

- S37039

- 23

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES JONES,

Appellant :
:
:
:
:
:
:
:
: 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 J ones (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 Super. 1997) (unpublished memorandum).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 C ourt for a writ of certiorari.J

- S37039

- 23

- 2

-

Com monwealth 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19, 2013) (unpublished memorandum) (affirming denial of Appellant’s second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 , 20 1 8

. On December 19, 2022, t he 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 dismiss ing 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.

T he 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 d ismissal of the third PCRA petition on

_________________ __________ ______ ____ _______

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.” Commonwealt h Brief at 4.J

- S37039

- 23

- 3

-

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 th is appeal should not be quashed pursuant to

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

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

file a subsequent PCRA petition until the appeal is resolved )

.

A ppellant filed a response admitt ing 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, t his Court referred the

issue to th is merits panel and discharged the rule to show ca u se

.

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 theJ

- S37039

- 23

- 4

-

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 un dispute d 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 jurisdict ion because Appellant ’ s third PCRA petition was pending

before th e Pennsylvania Supreme Court.

Order affirme d.

_________________ __________ ______ ____ _______

2 The Pennsylvania Supreme Court denied the petition on April 3, 2019. Commonwealth v. Jones , 205 A.3d 1234 ( Pa. 2019)

.J

- S37039

- 23

- 5

-

Date: 1 1/7 /2023