Com. v. Trice, C.

J-S78002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CEASAR TRICE : : Appellant : No. 1465 WDA 2016

Appeal from the PCRA Order August 25, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0018839-2006

BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER*, J. JUDGMENT ORDER BY OLSON, J.: FILED JANUARY 04, 2018

Appellant, Ceasar Trice, appeals from the order entered on August 25, 2016, dismissing, as untimely, his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We briefly summarize the facts and procedural history of this case as follows. A jury convicted Appellant of third-degree murder, criminal trespass, and two counts of aggravated assault in a 2006 home invasion, arising from a dispute involving narcotic sales, which ended with the shooting death of a victim and injuries to two other individuals. On October 16, 2008, the trial court sentenced Appellant to an aggregate term of 32 to 64 years of imprisonment. We affirmed Appellant’s judgment of sentence on July 8, 2011. From our review of the record, Appellant did not appeal that determination to our Supreme Court.

____________________________________ * Retired Senior Judge assigned to the Superior Court.

J-S78002-17

Appellant filed a pro se PCRA petition on June 11, 2012. The PCRA court appointed counsel who filed an amended PCRA petition on December 6, 2013. On July 28, 2014, following an evidentiary hearing, the PCRA court dismissed the amended PCRA petition. We affirmed the denial of relief in an unpublished memorandum on November 2, 2015. Appellant appealed. On March 22, 2016, our Supreme Court denied further review.

On March 20, 2016, Appellant filed a second, pro se PCRA petition. On July 22, 2016, the PCRA court issued notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant responded pro se on August 4, 2016. The PCRA court dismissed Appellant’s PCRA petition as untimely on August 25, 2016. This pro se appeal followed wherein Appellant raises four issues challenging the effectiveness of trial counsel and PCRA counsel representing him on his first PCRA petition. See Appellant’s Brief at 4-5

Here, the PCRA court dismissed Appellant’s most recent PCRA petition for lack of jurisdiction, because Appellant filed it more than one year after his judgment of sentence became final and Appellant did not allege any of the three exceptions to the PCRA’s time bar. See 42 Pa.C.S.A. § 9545. This Court agrees that the PCRA court lacked jurisdiction, albeit upon a different legal theory. See Commonwealth v. Sunealitis, 153 A.3d 414, 423 (Pa. Super. 2016) (“We can affirm the trial court's decision if there is any basis to support it.”). Our Supreme Court has determined “that a PCRA trial court cannot entertain a new PCRA petition when a prior petition is still under

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review on appeal[.]” Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012), citing Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)(“Appellant could not have filed his second PCRA petition in the court of common pleas while his first PCRA petition was still pending before this [C]ourt. The trial court had no jurisdiction to adjudicate issues directly related to this case; only this [C]ourt did. A second appeal cannot be taken when another proceeding of the same type is already pending...”).

In this case, Appellant filed his second PCRA petition on March 20, 2016; however, our Supreme Court did not deny relief on Appellant’s first PCRA petition until March 22, 2016. Thus, because Appellant’s appeal on his first PCRA petition was still pending at the time he filed the current PCRA petition, the PCRA court lacked jurisdiction to entertain the merits of Appellant’s instant claims.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/4/2018

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