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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm. 

 We take the following relevant facts from our review of the record. On 

October 27, 2006, a jury convicted Appellant of two counts each of sexual 

assault, endangering the welfare of children, and corruption of minors 

related to his abuse of his minor step-daughter. On March 22, 2007, the 

court sentenced Appellant to an aggregate term of not less than fourteen nor 

more than forty-four years’ incarceration. Appellant’s post-sentence motions 

were denied by operation of law. On April 15, 2009, a panel of this Court 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 
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affirmed the judgment of sentence, and on October 20, 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Super. 2009) (unpublished memorandum), appeal denied, 982 A.2d 509 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 first PCRA petition. 

After issuing a Rule 907 notice of its intent to dismiss 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 evidentiary hearing on 

Appellant’s claim that trial counsel was ineffective for failing to meet with 

him prior to trial. (See Commonwealth v. Deep, No. 1592 WDA 2010, 

unpublished memorandum, at *8, *11 (Pa. Super. filed Sept. 16, 2011)). 

After remand, the PCRA court held the ordered hearing on December 

19, 2011. On May 22, 2012, the court dismissed Appellant’s petition. On 

September 13, 2013, this Court affirmed the dismissal and, on February 20, 

2014, the Pennsylvania Supreme Court denied Appellant’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. Appellant filed a response to 
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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 court’s April 8, 2014 order. 

On August 21, 2014, while his appeal of the PCRA court’s April 8, 2014 

order was still pending, Appellant filed a third PCRA petition pro se. On 

August 29, 2014, the court dismissed Appellant’s petition 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 appeal of the 

PCRA court’s April 8, 2014 order. On September 23, 2014, Appellant timely1

appealed from the PCRA court’s August 29, 2014 order 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 PCRA 

court for review of the matters raised herein[?] 

____________________________________________ 

1

 Appellant’s notice of appeal was docketed on November 23, 2014. 

However, pursuant to the Prisoner Mailbox Rule, because 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 Rule 1925(b) statement, 

but it filed a Rule 1925(a) opinion on September 8, 2014. See Pa.R.A.P. 

1925. 
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II. Whether the [PCRA] court erred in denying relief based on 

trial counsel’s ineffective assistance by failing to 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 based on 

trial counsel’s ineffective assistance by failing to request that 

[Appellant’s] expert be able to examine the alleged victim[?] 

IV. Whether the [PCRA] court erred in denying relief based on 

trial counsel’s ineffective assistance in failing to object or 

attempt to suppress Dr. Squires’ testimony[?] 

V. Whether the [PCRA] court erred in denying relief based on 

trial counsel’s ineffective assistance in failing to 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 based on 

trial counsel’s ineffective assistance in failing to request a bill of 

particulars and, therefore, failed to prepare a meaningful 

defense where [Appellant] had alibi defenses regarding several 

of the alleged offenses[?] 

VII. Whether the [PCRA] court erred in denying relief based on 

trial counsel’s ineffective assistance by prematurely filing 

[Appellant’s Rule] 1925(b) [s]tatement of [errors] [c]omplained 

of on [a]ppeal prior to disposition of post-sentence motions, 

thereby barring [Appellant’s] appellate attorney from raising 

meritorious issues on appeal . . . [?] 

(Appellant’s Brief, at 2-3). 

Our standard of review for an order denying PCRA relief 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). 
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limited to the findings of the PCRA court and the evidence of 

record” and we do not “disturb a PCRA court’s ruling if it is 

supported by evidence of record and is free of legal error.” Id. 

Similarly, “[w]e 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.” Id. (citations omitted). 

“[W]here the petitioner raises questions of law, our 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 PCRA 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 explain that a petition 

filed based on newly-discovered evidence may not be filed until the outcome 

of any pending PCRA or appellate proceedings.” (Appellant’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 subsequent PCRA petition 

within sixty days of the discovery of new grounds for 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 petition in the 

court of common pleas while his first PCRA petition was still 

pending before this [C]ourt. The trial court had no 
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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 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. If the subsequent petition is not 

filed within one year of the date when the judgment

became final, then the petitioner must plead and prove 

that one of the three exceptions to the time bar under 42 

Pa.C.S.[A.] § 9545(b)(1) applies. The subsequent petition 

must also be filed within sixty days of the date of the 

order which finally resolves the previous PCRA petition, 

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 sixty days of the date of 

the order that finally resolves the first PCRA petition . . . .”) (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 proceed further in the matter.”). 

 Here, Appellant’s appeal of the denial of his second 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, Appellant’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 prohibited from filing a third 
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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 

____________________________________________ 

4

 Moreover, we are not persuaded by Appellant’s reliance on Lark’s citation 

to Corpus Juris Secondum (CJS), Appeal and Error, in support of his 

argument that, because he discontinued his appeal of the order denying his 

second PCRA petition on September 19, 2014, we should 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 contains 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 pertinent 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).