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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NON-PRECEDENTIAL DECISION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 ยง 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 ...

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