J-S67025-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DARRELL REESE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 601 EDA 2018

Appeal from the PCRA Order February 2, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0100571-1998

BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 14, 2018

Appellant Darrell Reese appeals pro se from the order dismissing as 

premature his sixth petition filed under the Post Conviction Relief Act (PCRA), 

42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court summarized the relevant facts and procedural history 

of this case as follows:

On November 5, 1998, following a jury trial, [Appellant] was 

convicted of aggravated assault, robbery, criminal conspiracy, and 

possessing an instrument of crime, while the jury was hung on the 

first-degree murder bill. On September 27, 1999, [Appellant], 

following a re-trial on the murder bill, was found guilty by a jury 

of first-degree murder. On September 28, 1999, following a 

penalty phase, [Appellant] was sentenced to life imprisonment for 

the murder bill and lesser terms of incarceration for the remaining 

convictions. On July 10, 2001, following a direct appeal, the 

Superior Court affirmed the judgment of sentence. The 

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* Retired Senior Judge assigned to the Superior Court.
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Pennsylvania Supreme Court denied allocatur on December 14, 

2001.

On August 13, 2002, [Appellant] filed his first pro se petition for 

collateral relief under the former provisions of the PCRA. Counsel 

was appointed and subsequently filed a “no merit” letter pursuant 

to Turner/Finley.

[1] [Appellant]’s PCRA petition was formally 

dismissed on March 29, 2004. On August 22, 2005, the Superior 

Court affirmed the dismissal order. The Pennsylvania Supreme 

Court denied allocatur on May 31, 2006.

On November 21, 2007, [Appellant] filed his second pro se petition 

under the Post Conviction Relief Act. [Appellant’s] PCRA petition 

was dismissed on July 20, 2009. On July 8, 2010, the Superior 

Court affirmed the dismissal order. On January 5, 2011, the 

Pennsylvania Supreme Court denied allocatur.

On January 20, 2011, [Appellant] filed his third pro se PCRA 

petition. [Appellant’s] PCRA petition was dismissed as untimely 

on September 21, 2011. On May 23, 2012, the Superior Court 

affirmed the dismissal. On November 20, 2012, the Pennsylvania 

Supreme Court denied allocatur.

On January 23, 2013, [Appellant] filed his fourth pro se PCRA 

petition. [Appellant’s] PCRA petition was dismissed as untimely 

on April 1, 2014. On June 5, 2015, the Superior Court affirmed 

the dismissal. On November 16, 2015, the Pennsylvania Supreme 

Court denied allocatur. On March 21, 2016, [Appellant] filed his 

fifth pro se PCRA petition. On September 22, 2016, the PCRA 

court dismissed his petition as untimely. [Appellant] timely filed 

a notice of appeal with the Superior Court (3278 EDA 2016). On

October 18, 2017, the Superior Court affirmed the dismissal. On 

November 14, 2017, [Appellant] filed for allowance of appeal with 

the Pennsylvania Supreme Court, which remains pending (583 

EAL 2017).

While the appeal was pending, [Appellant] filed his sixth pro se

PCRA petition on September 6, 2017. On February 2, 2018, the 

PCRA court dismissed his petition as premature. On February 14, 

2018, the instant notice of appeal was timely filed to the Superior 

Court.

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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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The PCRA court dismissed [Appellant’s] petition on the basis that 

he was prohibited from filing while the appeal of the denial of his 

previous petition was pending. In Lark, our Supreme Court 

addressed the preclusive effect that a pending appeal has on a 

petitioner’s ability to file a subsequent PCRA petition:

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. § 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. § 9545(b)(2).

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

(footnote omitted); 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.”). Because [Appellant] was precluded from 

filing the instant PCRA petition until the appeal from his fifth was 

resolved, the lower court dismissed his petition as premature.

PCRA Ct. Op., 5/4/18, at 1-3 (some footnotes omitted).

Appellant raises the following issues on appeal:

1. Whether the [trial c]ourt’s 9545(b) is based on [s]tatutory 

[l]aw[.]

2. Whether trial [c]ounsel was ineffective when he failed to inform 

[Appellant] of the Commonwealth’s plea offer[.]

3. Whether [the t]rial [c]ourt erred when it sentenced [Appellant]

to an unlawful sentence, pursuant to 18 Pa.C.S.A. § 1102(a)

or (b)[.]

4. Whether the trial court’s jury instructions [were] contrary to 

the weight of the evidence for [c]riminal [c]onspiracy[.]
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5. Whether the sentence for [c]riminal [c]onspirac[y] was illegal

base[d] upon double jeopardy concerns and should have 

merged into the sentence of first degree murder which was 

base[d] upon [the] Commonwealth’s [c]riminal [c]onspiracy

theory[.]

6. Whether trial [c]ourt erred sentencing [Appellant] in violation

of the merger doctrine for aggravated assault and criminal 

conspiracy to commit [m]urder crimes[.]

Appellant’s Brief at iv.

Our standard of review from the dismissal of a PCRA petition is limited 

to “whether the record supports the PCRA court’s determination and whether 

the PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 

90 A.3d 1, 4 (Pa. Super. 2014) (citation omitted).

In Lark, our Supreme Court held that “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.” Lark, 746 A.2d at 588. The Court stated 

that “[a] second appeal cannot be taken when another proceeding of the same 

type is already pending.” Id. (citation omitted); see also Commonwealth 

v. Montgomery, 181 A.3d 359 (Pa. Super. 2018) (en banc) (holding that 

“Lark precludes consideration of a subsequent petition from the time a PCRA 

order is appealed until no further review of that order is possible”), appeal 

denied, 190 A.2d 1134 (Pa. 2018).

Following our review, we agree with the PCRA court’s conclusions that 

Appellant’s petition was premature. As indicated by the PCRA court, at the 

time Appellant’s sixth PCRA petition was docketed, his appeal from the 
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dismissal of his fifth PCRA petition was still pending with the Pennsylvania 

Supreme Court. See PCRA Ct. Op., 5/4/18, at 3; see also 583 EAL 2017. 

Therefore, the PCRA court correctly concluded that it lacked jurisdiction to 

entertain Appellant’s sixth petition. See Lark, 746 A.2d at 588. Accordingly, 

we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/14/18