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[U] Commonwealth v. Jerry

Superior Court of Pennsylvania

February 21, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
BERNARD JERRY Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of May 3, 2013 In the Court of Common Pleas of Beaver County Criminal Division at Nos.: CP-04-CR-0000196-1977, CP-04-CR-0000197-1977, CP-04-CR-0000317-1977

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Bernard Jerry appeals the May 3, 2013 order denying Jerry's petition for relief pursuant to the Post-Conviction Relief Act ("PCRA").[1] We affirm.

A prior panel of this Court summarized the factual and procedural history as follows:

[Jerry] and a co-defendant robbed a grocery store on February 13, 1977, during which the store clerk was shot and killed. Following a jury trial, [Jerry] was convicted on August 16, 1977 of first-degree murder, robbery, reckless endangerment of another person, aggravated assault, simple assault, and criminal conspiracy to commit felony murder. On April 12, 1978, [Jerry] was sentenced to life imprisonment on the first-degree murder conviction and to consecutive terms of imprisonment of 10 to 20 years on the robbery charge and 5 to 10 years on the criminal conspiracy charge. The sentences were suspended on the remaining convictions. [Jerry] filed an appeal to the Pennsylvania Supreme Court on April 13, 1978; the Court remanded for appointment of counsel and an evidentiary hearing on [Jerry's] claims of trial counsel's ineffectiveness. Commonwealth v. Jerry, 401 A.2d 310 (Pa. 1979). On remand, the trial court ruled that counsel was not ineffective. Our Supreme Court affirmed the judgment of sentence on March 10, 1982, and the United States Supreme Court denied [Jerry's] petition for writ of certiorari on October 4, 1982. Commonwealth v. Jerry, 441 A.2d 1210 (Pa. 1982), cert. denied, 459 U.S. 845 (1982). Subsequently, [Jerry] filed a series of unsuccessful petitions for post-conviction relief.

Commonwealth v. Jerry, 1257 WDA 2012, slip op. at 1-2 (Pa. Super. March 8, 2013). In that memorandum decision, we affirmed the denial of what we identified as Jerry's twelfth PCRA petition.

Instantly, we address the denial of Jerry's most recent PCRA petition, which was filed while that twelfth petition's appeal was pending. Jerry's petition, filed more than thirty years after his judgment of sentence became final, facially was untimely. 42 Pa.C.S.A. § 9545(b)(1) (requiring a petition to be filed within one year of judgment becoming final to be timely unless exception to this time bar is pleaded and proved). In this PCRA petition, Jerry alleges newly-discovered facts in an attempt to meet one of the exceptions to the PCRA's jurisdictional time bar. 42 Pa.C.S.A. § 9545(b)(1)(ii). The PCRA court found that Jerry did not adequately plead and prove that the newly-discovered facts could not have been obtained at or before trial, or that the information likely would have compelled a different result at trial. PCRA Court Opinion, 7/15/2013, at 2 (unpaginated). Therefore, the PCRA court concluded that Jerry did not satisfactorily plead and prove an exception to the time bar, and the court denied Jerry's petition. Jerry then filed this appeal.

Jerry presents one issue for this Court's consideration:

Whether the PCRA court abused its discretion when denying [Jerry's] PCRA petition presenting newly[-]discovered facts without an evidentiary hearing to determine credibility?

Jerry's Brief at v.

Jerry filed the instant PCRA petition on April 5, 2013, while an appeal of his previous PCRA petition was still pending.

A second appeal cannot be taken when another proceeding of the same type is already pending. See C.J.S. Appeal and Error § 20 ("As a general rule a second proceeding to obtain a review by an appellate court cannot be taken while a prior valid proceeding for such purpose is still pending, and if it is attempted, the second proceeding will be dismissed, unless it has been validated by the abandonment of the first proceeding, or the first proceeding is so defective and ineffectual that it cannot properly be regarded as pending.") (footnotes omitted).
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.2 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).
2 We note that this holding will not preclude a trial court from granting leave to amend a PCRA petition that is currently pending before that court.

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). Further, the PCRA court does not have jurisdiction to adjudicate any issues raised in a subsequent PCRA while an appeal is pending. Id.

This Court disposed of Jerry's prior PCRA appeal by memorandum opinion filed on March 8, 2013. On March 20, 2013, Jerry filed an application for reconsideration. That application was not disposed of until May 2, 2013. Clearly, Jerry's prior PCRA appeal was still pending when he filed the instant PCRA petition on April 5, 2013. Therefore, Jerry could not properly file the instant PCRA petition. Instead, pursuant to Lark, Jerry was required to wait for the completion of the review of his prior PCRA or to abandon that proceeding.

The PCRA court dismissed Jerry's instant PCRA petition, believing that it lacked jurisdiction due to the untimeliness of Jerry's petition. While we find the PCRA court lacked jurisdiction for a different reason, we may affirm its decision on any basis. Commonwealth v. Turner, 73 A.3d 1283, 1286 n.5 (Pa. Super. 2013). Because Jerry could not file a new PCRA petition while a prior PCRA petition was on appeal, the instant PCRA petition properly was dismissed. Therefore, we affirm.

Order affirmed.

Judgment Entered.


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