J-S05045-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TERREL NOAKS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 719 WDA 2023

Appeal from the PCRA Order Entered May 15, 2023

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

No(s): CP-02-CR-0013737-2011

BEFORE: PANELLA, P.J.E., KING, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: FEBRUARY 29, 2024

Appellant, Terrell Noaks, appeals pro se from the post-conviction court’s 

May 15, 2023 order dismissing, as untimely, his petition filed under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, 

we affirm.

The facts of Appellant’s underlying convictions are not pertinent to his 

instant appeal. The PCRA court summarized the procedural history of his case, 

as follows:

On February 4, 2014, a jury convicted Appellant ... of third-degree

murder and firearms not to be carried without a license [relating 

to the death of Antwan Leake].1 The Superior Court of 

Pennsylvania affirmed the judgement [sic] of sentence on August 

25, 2017. [Commonwealth v. Noaks, 175 A.3d 1116 (Pa. 

Super. 2017) (unpublished memorandum).] The Supreme Court 

of Pennsylvania denied the petition for allowance of appeal on 

December 27, 2017. [Commonwealth v. Noaks, 176 A.3d 858 

(Pa. 2017).]
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1 Co-defendant Jared Cager, CP-02-CR-13713-2011, was 

convicted of similar offenses....

On June 27, 2018, Appellant filed a PCRA petition. This court 

appointed counsel[,] who filed a “no merit” letter on November 

26, 2018.[1] This court dismissed the PCRA [petition] without a 

hearing on February 6, 2019. On May 28, 2020, the Superior 

Court of Pennsylvania affirmed this court’s order dismissing the 

PCRA [petition]. [See Commonwealth v. Noaks, 236 A.3d 1063 

(Pa. Super. 2020) (unpublished memorandum).]

While [that] appeal was pending, Appellant filed a second[, pro 

se] PCRA [petition] on February 18, 2020. Appellant retained 

counsel on December 16, 2021, who ultimately withdrew on July 

25, 2022. Counsel did not adopt or amend the pro se PCRA 

[petition]. Appellant did not refile or amend his PCRA [petition]. 

Instead, Appellant filed a motion for counsel[,] which this court 

denied on October 26, 2022, and a “Request for Self 

Representation” on February 14, 2023. This court ordered the 

Commonwealth to respond, and the Commonwealth complied by 

filing an Answer on April 10, 2023. This court issued a 

[Pa.R.Crim.P. 907] notice of [its] intent to dismiss the PCRA 

[petition] on April 12, 2023. On May 15, 2023, this court 

dismissed the second PCRA [petition on the basis that it was 

untimely filed]. Appellant filed a [timely, pro se] notice of appeal 

on June 20, 2023, and a [Pa.R.A.P. 1925(b)] concise statement 

[of errors complained of on appeal] on August 3, 2023. 

PCRA Court Opinion (PCO), 10/24/23, at 2-3 (unnecessary capitalization 

omitted). The PCRA court filed its Rule 1925(a) opinion on October 24, 2023, 

in which it now indicates that it should have quashed Appellant’s petition 

because he filed it while his appeal from the denial of his first petition was still 

pending, which we discuss further infra. See PCO at 3.

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) 

(setting forth the procedure for counsel to withdraw from representing a PCRA 

petitioner, including counsel’s filing of a ‘no merit’ letter detailing why the 

petitioner’s claims lack merit).
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Herein, Appellant states one issue for our review: “Did the PCRA [c]ourt 

err in dismissing ... Appellant’s PCRA petition as untimely when he clearly met 

the timeliness exceptions provided by [42 Pa.C.S. §] 9545(b)(1)(ii)?” 

Appellant’s Brief at 1.

Appellant contends that he has met the newly-discovered-fact exception 

to the PCRA’s one-year time-bar based on a letter he received from the District 

Attorney’s Office, dated September 9, 2019, which included a statement from 

a witness named Clayton McCray. In his statement, McCray claimed that 

another individual, who is now deceased, had confessed to him that he had 

shot and killed the victim, Antwan Leake. Appellant insists that he “could not 

have ascertained the information provided by [] McCray through the exercise 

of due diligence[,]” Appellant’s Brief at 3, and that he timely-filed his PCRA 

petition within one year of the date he discovered McCray’s statement, as 

required by 42 Pa.C.S. § 9545(b)(2), id. at 2. Thus, he concludes that the 

PCRA court erred by dismissing his petition as untimely.

Before we can review Appellant’s issue, we must address the PCRA 

court’s conclusion that it should have quashed Appellant’s PCRA petition, 

rather than dismissing it as untimely. See PCO at 3. The court reasons that 

it “had no jurisdiction to provide Appellant relief” because Appellant filed the 

instant petition while his appeal from the denial of his first, timely petition was

still pending. Id. The Commonwealth agrees with the PCRA court, cogently 

explaining:
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“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. Beatty, 207 A.3d 

957, 961 (Pa. Super. 2019), appeal denied, 218 A.2d 850 (Pa. 

2019), citing Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 

2000)[,] and Commonwealth v. Montgomery, 181 A.3d 359, 

364 (Pa. Super. 2018) (en banc), appeal denied, 190 A.3d 1134 

(Pa. 2018). Furthermore,

[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 ... because “prevailing 

law requires that the subsequent petition must give way to 

a pending appeal from the order denying a prior petition.” 

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. 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.

Id. (citations omitted) (emphasis in original). “Since this rule is 

one of jurisdictional magnitude, this Court has held that PCRA 

filings advanced in violation of Lark are legal nullities.” 

Commonwealth v. Belle, 2022 WL 17087536 *2 (Pa. Super., 

November 21, 2022) (unpublished [memorandum]),13 appeal 

denied, 304, A.3d 328 (Pa.[] Sept[.] 12, 2023) (table) (citing 

unpublished cases).

13 Although unpublished and therefore non-precedential, 

Pa.R.A.P. 126(b)(2) allows citation to non-precedential 

cases as persuasive authority for decisions filed after May 1, 

2019. See Commonwealth v. Kirwan, 221 A.3d 196, 200 

n. 11 (Pa. Super. 2019). Thus, while this Court is not bound 

by Belle, it can be considered persuasive.

Thus, upon receiving the [September 9, 2019] letter from the 

District Attorney’s Office, [A]ppellant had the choice of either 

withdrawing the appeal of his first PCRA petition and filing a 

subsequent petition citing the statement as a newly-discovered 

fact, or continuing with the appeal of the first petition. There is 

no question that [A]ppellant continued with the appeal of his first 

petition. Consequently, the post-conviction court was without 

jurisdiction to address the February 18, 2020 petition and should 
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have immediately dismissed it as a legal nullity. Beatty, supra, 

207 A.3d at 964. See also Commonwealth v. Patton, 2020 WL 

6708229[, at] *3 (Pa. Super. Nov[.] 16, 2020) (unpublished 

[memorandum]) ([finding that the] post-conviction court lacked 

jurisdiction over [the] petitioner’s third PCRA petition because he 

filed it while his appeal from the denial of his second petition 

remained pending). 

Commonwealth’s Brief at 8-10.

Based on our review of the legal authority cited by the Commonwealth, 

we agree with the PCRA court and the Commonwealth that the court was 

without jurisdiction to rule on Appellant’s February 18, 2020 petition, as it was 

filed during the pendency of his appeal from the denial of his first petition. 

Accordingly, we affirm the PCRA court’s order dismissing Appellant’s 

petition.2,3

Order affirmed.

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2 As stated supra, the PCRA court dismissed Appellant’s petition on the basis 

that it was untimely, only raising for the first time in its Rule 1925(a) opinion 

that it should have quashed Appellant’s petition for lack of jurisdiction. 

Nevertheless, we “may affirm a PCRA court’s order on any legal basis.” 

Commonwealth v. Parker, 249 A.3d 590, 595 (Pa. Super. 2021).

3 We observe that Appellant filed another, pro se PCRA petition on April 30, 

2020, which was after this Court affirmed the denial of his first petition on 

April 17, 2020. Therein, Appellant raises the same, newly-discovered-fact 

claim that he raised in the instant petition. It does not appear that the PCRA 

court has ruled on the April 30, 2020 petition. Moreover, the fact that 

Appellant’s April 30, 2020 petition was filed during the litigation of the instant, 

February 18, 2020 petition would not appear to render the April 30th petition 

a legal nullity, as the February 18th petition was itself a legal nullity that should 

not have been litigated but, instead, immediately dismissed. Given that our 

decision herein ends Appellant’s appeal from the denial of the February 18, 

2020 petition, the PCRA court can now proceed to ruling on his April 30, 2020 

petition.
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FILED: 2/29/2024