J-S15010-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVEN CARL DERK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1303 MDA 2022

Appeal from the Order Entered August 31, 2022

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

No(s): CP-55-CR-0000153-1993, 

CP-55-CR-0000306-1992

BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.

JUDGMENT ORDER BY BOWES, J.: FILED MAY 16, 2023

Steven Carl Derk appeals pro se from the order that dismissed his serial 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

In 1993, Appellant was convicted of murdering his paramour’s two-yearold son. His sentence of life imprisonment was affirmed on direct appeal. See 

Commonwealth v. Derk, 685 A.2d 207 (Pa.Super. 1996) (unpublished 

memorandum), aff’d, 719 A.2d 262 (Pa. 1998) (equally divided court). 

Appellant’s PCRA petitions filed in 1999, 2010, and 2014 resulted in no relief. 

Appellant filed a PCRA petition in August 2021 which was dismissed by 

order of November 24, 2021, appealed to this Court, and assigned docket 

number 49 MDA 2022. While that appeal remained pending, Appellant filed 

additional PCRA petitions on March 17 and April 7, 2022. The PCRA court 

dismissed the petitions by order dated August 31, 2022, indicating therein 
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that it was without jurisdiction to entertain the petitions while the November 

2021 petition was on appeal to this Court. Appellant filed a notice of appeal 

from that dismissal, which was issued the above-captioned docket number. 

This Court issued a rule to show cause why we should not quash this 

appeal due to the pendency of the appeal at 49 MDA 2022. Appellant filed a 

response in which he acknowledged that “a PCRA cannot be filed with a 

subsequent [sic] appeal pending.” Response to Rule to Show Cause, 

10/17/22, at 2. He indicated that he was “willing to withdraw [the instant 

appeal], but request[ed] the right to re-file” his claims.1 Id. The 

Commonwealth, for its part, has urged us to affirm the PCRA court’s August 

31, 2022 order, citing precedent that supports the PCRA court’s determination 

that it lacked jurisdiction to consider it. See Commonwealth’s brief at 8-10 

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

(“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.”)

2).

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1 This Court discharged the rule for determination by the merits panel. See

Order, 4/4/23.

2 We acknowledge that Lark was overruled on other grounds not pertinent to 

this appeal. See Commonwealth v. Small, 238 A.3d 1267, 1271 (Pa. 2020). 
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As such, there is no disagreement among the PCRA court and the parties 

that the court lacked jurisdiction to entertain Appellant’s petitions filed during 

the pendency of an appeal from the dismissal of his prior PCRA petition. We 

agree. See, e.g., Commonwealth v. Montgomery, 181 A.3d 359 

(Pa.Super. 2018) (en banc) (“Lark precludes consideration of a subsequent 

petition from the time a PCRA order is appealed until no further review of that 

order is possible.”). As such, the PCRA court’s August 31, 2022 order properly 

dismissed Appellant’s petition for lack of jurisdiction and is hereby affirmed.3

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/16/2023

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3 This Court resolved the appeal at 49 MDA 2022 on March 13, 2023. See 

Commonwealth v. Derk, __ A.3d __, 2023 WL 2471437 (Pa.Super. Mar. 13, 

2023) (non-precedential decision). Once this and any other pending PCRA 

appeals are final in accordance with Commonwealth v. Montgomery, 181 

A.3d 359 (Pa.Super. 2018) (en banc), Appellant is free to endeavor to meet a 

PCRA timeliness exception and to reassert any PCRA claims that have not been 

addressed on their merits. We offer no opinion on whether he will be able to 

do so, but note that our ruling herein does not prejudice his rights to make 

the attempt.