Com. v. Powell, S.
172 WDA 2016
| Pa. Super. Ct. | Aug 18, 2016Background
- Appellant Samuel Powell filed a PCRA petition in 2016 challenging prior sentences; the PCRA court treated it as a serial petition and dismissed it as untimely for failure to plead a timeliness exception under 42 Pa.C.S. § 9545.
- The Superior Court majority affirmed the dismissal and concluded the PCRA court had jurisdiction to review the petition because no PCRA appeal was pending in an appellate court at the time of filing.
- Judge Olson (joined by Judge Dubow) concurred but wrote separately to question the majority’s reliance on Commonwealth v. Porter and the interaction with Commonwealth v. Lark.
- Lark (2000) establishes that a subsequent PCRA petition cannot be filed while an earlier PCRA petition is still pending on appeal; pendency divests other state courts of jurisdiction until final resolution.
- Porter (2012) involved a prior petition held in abeyance at the petitioner’s request and held that such pendency did not divest the PCRA court of jurisdiction to consider a subsequent petition under limited circumstances.
- The concurrence notes conflicting unpublished Superior Court decisions applying Lark or Porter when an earlier petition remains pending before the PCRA court (not on appeal) and urges en banc resolution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PCRA court had jurisdiction to consider a subsequent/serial PCRA petition while an earlier PCRA petition remained pending | Commonwealth: PCRA court had jurisdiction because no appeal was pending in an appellate court at filing (relying on Porter) | Powell: pendency of an earlier PCRA petition divests jurisdiction and Lark bars filing a successive petition until final resolution | Majority: PCRA court had jurisdiction here because no PCRA petition was pending in an appellate court at filing; concurrence questions breadth of that holding and urges en banc review |
| Whether the 2016 petition was timely or met an exception to the PCRA timeliness requirements | Commonwealth: petition is untimely and petitioner failed to plead/prove an exception under § 9545 | Powell: sought to invoke an exception (not adopted by the court on merits) | Court dismissed the petition as an untimely, serial PCRA petition for failure to plead and prove a timeliness exception |
Key Cases Cited
- Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000) (holds a subsequent PCRA petition cannot be filed while an earlier PCRA petition is pending on appeal)
- Commonwealth v. Porter, 35 A.3d 4 (Pa. 2012) (permits consideration of a subsequent PCRA petition where a prior petition was held in abeyance at petitioner’s request and no appeal was pending)
- Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005) (reinforces that pendency of an earlier petition divests jurisdiction until final resolution)
- Commonwealth v. Steele, 961 A.2d 786 (Pa. 2008) (explains a petitioner must raise new claims in a second PCRA petition filed within 60 days of the order finally resolving the pending petition)