J-S25041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. MICHAEL GEORGE DEEP, Appellant No. 2025 WDA 2014

Appeal from the PCRA Order August 29, 2014 in the Court of Common Pleas of Washington County Criminal Division at No.: CP-63-CR-0001722-2005

BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J. * MEMORANDUM BY PLATT, J.: FILED MAY 05, 2015 Appellant, Michael George Deep, appeals pro se from the order denying his third petition filed pursuant to the Po st Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm. We take the following relevant facts from our revi ew of the record. On October 27, 2006, a jury convicted Appellant of two counts each of sexual assault, endangering the welfare of children, and c orruption of minors related to his abuse of his minor step-daughter. O n March 22, 2007, the court sentenced Appellant to an aggregate term of n ot less than fourteen nor more than forty-four years’ incarceration. Appella nt’s post-sentence motions were denied by operation of law. On April 15, 2009 , a panel of this Court

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* Retired Senior Judge assigned to the Superior Cour t.J-S25041-15

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affirmed the judgment of sentence, and on October 2 0, 2009, our Supreme Court denied review. ( See Commonwealth v. Deep , 974 A.2d 1179 (Pa. Super. 2009) (unpublished memorandum), appeal denied , 982 A.2d 509 (Pa. 2009)). On August 6, 2010, Appellant filed a counseled fir st PCRA petition. After issuing a Rule 907 notice of its intent to di smiss the petition without a hearing, see Pa.R.Crim.P. 907(1), the court formally dismissed the petition on September 27, 2010. On September 16, 2011, this Court affirmed in part, vacated in part, and remanded for an evidenti ary hearing on Appellant’s claim that trial counsel was ineffectiv e for failing to meet with him prior to trial. ( See Commonwealth v. Deep , No. 1592 WDA 2010, unpublished memorandum, at *8, *11 (Pa. Super. file d Sept. 16, 2011)). After remand, the PCRA court held the ordered heari ng on December 19, 2011. On May 22, 2012, the court dismissed App ellant’s petition. On September 13, 2013, this Court affirmed the dismiss al and, on February 20, 2014, the Pennsylvania Supreme Court denied Appella nt’s petition for allowance of appeal. ( See Commonwealth v. Deep , 87 A.3d 382 (Pa. Super. 2013) (unpublished memorandum), appeal denied , 86 A.3d 232 (Pa. 2014)). On February 24, 2014, Appellant filed a pro se second PCRA petition. On March 18, 2014, the PCRA court issued a Rule 907 notice of its intent to dismiss Appellant’s petition without a hearing. Ap pellant filed a response toJ-S25041-15

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the notice on March 31, 2014, and, on April 8, 2014 , the court dismissed the petition as untimely. On July 11, 2014, Appellant filed a motion to file an appeal nunc pro tunc , which the court granted the same day. On July 31 , 2014, Appellant filed a notice of appeal from the c ourt’s April 8, 2014 order. On August 21, 2014, while his appeal of the PCRA co urt’s April 8, 2014 order was still pending, Appellant filed a third PC RA petition pro se . On August 29, 2014, the court dismissed Appellant’s pe tition on the basis of

Commonwealth v. Lark , 746 A.2d 585, 588 (Pa. 2000). ( See Order, 8/29/14, at 1). On September 17, 2014, Appellant discontinued his a ppeal of the PCRA court’s April 8, 2014 order. On September 23, 2014, Appellant timely 1 appealed from the PCRA court’s August 29, 2014 orde r dismissing his PCRA petition on the basis of the pending appeal. 2 Appellant raises seven questions for our review:

I. Whether the case should be remanded back to the PCR A court for review of the matters raised herein[?]

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1 Appellant’s notice of appeal was docketed on Novem ber 23, 2014. However, pursuant to the Prisoner Mailbox Rule, bec ause Appellant is incarcerated, we deem his notice of appeal filed on the date that he handed it to prison officials for mailing. See Commonwealth v. Feliciano , 69 A.3d 1270, 1274 n.2 (Pa. Super. 2013); ( see also Cash Slip, 9/23/14, at unnumbered page 1).

2 The PCRA court did not order Appellant to file a R ule 1925(b) statement, but it filed a Rule 1925(a) opinion on September 8, 2014. See Pa.R.A.P. 1925.J-S25041-15

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II. Whether the [PCRA] court erred in denying relief ba sed on trial counsel’s ineffective assistance by failing t o utilize compulsory process or requesting a continuance when Dr. Brandstetter could not testify in order to acquire the testimony of Dr. Brandstetter for the purposes of trial[?]

III. Whether the [PCRA] court erred in denying relief ba sed on trial counsel’s ineffective assistance by failing t o request that [Appellant’s] expert be able to examine the alleged victim[?]

IV. Whether the [PCRA] court erred in denying relief ba sed on trial counsel’s ineffective assistance in failing t o object or attempt to suppress Dr. Squires’ testimony[?]

V. Whether the [PCRA] court erred in denying relief ba sed on trial counsel’s ineffective assistance in failing t o object to the Brady [ 3 ] violation where evidence regarding Dr. Squires’ examination was willfully withheld from the defense [?]

VI. Whether the [PCRA] court erred in denying relief ba sed on trial counsel’s ineffective assistance in failing t o request a bill of particulars and, therefore, failed to prepare a mea ningful defense where [Appellant] had alibi defenses regard ing several of the alleged offenses[?]

VII. Whether the [PCRA] court erred in denying relief ba sed on trial counsel’s ineffective assistance by premature ly filing [Appellant’s Rule] 1925(b) [s]tatement of [errors] [c]omplained of on [a]ppeal prior to disposition of post-sentenc e motions, thereby barring [Appellant’s] appellate attorney fr om raising meritorious issues on appeal . . . [?] (Appellant’s Brief, at 2-3). Our standard of review for an order denying PCRA re lief is well-settled: This Court analyzes PCRA appeals “in the light most favorable to the prevailing party at the PCRA level .” Commonwealth v. Rykard , 55 A.3d 1177, 1183 (Pa. Super. 2012[, appeal denied , 64 A.3d 631 (Pa. 2013)]. Our “review is

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3 Brady v. Maryland , 373 U.S. 83 (1963).J-S25041-15

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limited to the findings of the PCRA court and the e vidence of record” and we do not “disturb a PCRA court’s rulin g if it is supported by evidence of record and is free of lega l error.” Id. Similarly, “[w]e grant great deference to the factu al 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.” Id. (citations omitted). “[W]here the petitioner raises questions of law, ou r standard of review is de novo and our scope of review is plenary. . . .” Id. Commonwealth v. Rigg , 84 A.3d 1080, 1084 (Pa. Super. 2014). Here, the PCRA court dismissed Appellant’s third P CRA petition pursuant to Lark , supra because his prior PCRA appeal still was pending in this Court. ( See Order, 8/29/14, at 1) (citing Lark , supra at 588). Appellant argues that his third petition was timely because he “obtained

after-discovered evidence” and the PCRA “does not e xplain that a petition filed based on newly-discovered evidence may not be filed until the outcome of any pending PCRA or appellate proceedings.” (Ap pellant’s Brief, at 7). Appellant’s argument lacks merit. Similar to the case here, in Lark , supra , the appellant argued that, although the PCRA “directs an appellant to file a s ubsequent PCRA petition within sixty days of the discovery of new grounds f or relief, [it] does not explain how to proceed if an appeal of a prior PCRA petition is currently pending.” Lark , supra at 587. In considering this argument, the Pennsylvania Supreme Court stated: Appellant could not have filed his second PCRA peti tion in the court of common pleas while his first PCRA petition was still pending before this [C]ourt. The trial court had noJ-S25041-15

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jurisdiction to adjudicate issues directly related to this case ; only this [C]ourt did. . . .

We now hold 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 th e pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review. If the subsequent petition is not filed within one year of the date when the judgment became final, then the petitioner must plead and pr ove that one of the three exceptions to the time bar un der 42 Pa.C.S.[A.] § 9545(b)(1) applies. The subsequent pe tition must also be filed within sixty days of the date of the order which finally resolves the previous PCRA petiti on, because this is the first “date the claim could have been presented.” 42 Pa.C.S.[A.] § 9545(b)(2).

Lark , supra at 588 (footnote omitted; emphases added); see also

Commonwealth v. Steele , 961 A.2d 786, 808-09 (Pa. 2008) (observing that an appellant must file a second PCRA “within s ixty days of the date of the order that finally resolves the first PCRA peti tion . . . .”) (citing Lark , supra at 588); see also Pa.R.A.P. 1701(a) (Generally, “after an appeal is taken . . . the trial court . . . may no longer pro ceed further in the matter.”). Here, Appellant’s appeal of the denial of his seco nd PCRA petition was pending in this Court when he filed his third PCRA petition. ( See Notice of Appeal, 7/31/14, at 1; Third Pro Se PCRA Petition, 8/21/14, at 1). Therefore, based on the foregoing precedent, Appell ant’s argument lacks

merit. See Steele , supra at 808-09; Lark , supra at 588; see also Pa.R.A.P. 1701(a). Hence, the PCRA court properly dismissed Appellant’s third PCRA petition on the basis that he was prohib ited from filing a thirdJ-S25041-15

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PCRA petition while the appeal of the denial of his second petition was pending. 4 See Rigg , supra at 1084. 5

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/5/2015

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4 Moreover, we are not persuaded by Appellant’s reli ance on Lark’s citation to Corpus Juris Secondum (CJS), Appeal and Error, in support of his argument that, because he discontinued his appeal o f the order denying his second PCRA petition on September 19, 2014, we shou ld remand this matter for an evidentiary hearing in the PCRA court. ( See Appellant’s Brief, at 7). First, we observe that CJS section 20 no longer co ntains the language quoted in Lark

. See Lark , supra at 588; 4 C.J.S. Appeal and Error § 20. Second, even if it did, the language is not pertine nt to our review because, by its plain meaning, the section applied to the effect on the appellate court where an appellant files a second appeal while a first is pending, which is not the situation before us. See Lark , supra at 588 (citing 4 C.J.S. Appeal and Error § 20). Indeed, Lark relied on this language to support the well-settled principle that “[a] second appeal cannot be taken when another proceeding of the same type is already pending.” Id. Therefore, we do not find Appellant’s argument legally persuasive.

5 Because of our disposition, we decline to address the issues raised in Appellant’s statement of questions involved. ( See Appellant’s Brief, at 2-3).