Com. v. Akan, A.

• Court: Superior Court of Pennsylvania
• Decided: January 11, 2019
• Docket: 71 WDA 2018
• Status: Unpublished

Opinion

J-S68013-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AKANINYENE EFIONG AKAN : : Appellant : No. 71 WDA 2018

Appeal from the Order December 15, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001844-2011

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 11, 2019

Appellant, Akaninyene Efiong Akan, appeals from an order entered on

December 15, 2017, that deferred ruling on Appellant’s second motion

requesting that the Honorable Donna Jo McDaniel recuse herself from this

matter.1 After review, we quash the appeal.2

The criminal acts that led to Appellant’s convictions and judgment of

sentence are set forth in a prior memorandum, and we shall not restate them

here. See Commonwealth v. Akan, 91 A.3d 1295, 1284 WDA 2012 (Pa.

____________________________________________

1Appellant filed a prior motion requesting Judge McDaniel’s recusal that was denied on July 25, 2017.

2 On October 17, 2018, Appellant filed a motion for special relief concerning the service of the Commonwealth’s brief. In light of our disposition, we DENY Appellant’s motion.

____________________________________ * Former Justice specially assigned to the Superior Court. J-S68013-18

Super. filed November 25, 2013) (unpublished memorandum). In summary,

Appellant was convicted of burglary, two counts of rape by forcible

compulsion, four counts of involuntary deviate sexual intercourse (“IDSI”) by

forcible compulsion, sexual assault, indecent assault, terroristic threats,

unlawful restraint, and simple assault.3 On June 26, 2012, the trial court

sentenced Appellant to an aggregate term of thirty-two to eighty years of

incarceration.

Appellant filed a timely notice of appeal, and this Court affirmed

Appellant’s judgment of sentence on November 25, 2013. Akan, 1284 WDA

2012 (unpublished memorandum at *16). Our Supreme Court denied

Appellant’s petition for allowance of appeal on May 30, 2014.

Commonwealth v. Akan, 93 A.3d 461 (Pa. 2014).

On October 17, 2014, Appellant filed his first petition pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. The PCRA

court denied Appellant’s petition, this Court affirmed the order, and the

Supreme Court of Pennsylvania denied Appellant’s petition for allowance of

appeal. Commonwealth v. Akan, 141 A.3d 583, 523 WDA 2015 (Pa. Super.

filed February 1, 2016) (unpublished memorandum), appeal denied, 157 A.3d

478 (Pa. 2016).

3 18 Pa.C.S. §§ 3502(c); 3121(a)(1); 3123(a)(1); 3124.1; 3126(a)(1); 2706(a)(1); 2902(a)(1); and 2701(a)(3), respectively.

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On October 19, 2016, Appellant filed his second PCRA petition pro se.

On January 4, 2017, while his second petition was pending before the PCRA

court, Appellant filed a pro se “motion for admission to the illegality of the

sentence administered on 6/26/12.”4 On June 8, 2017, the PCRA court denied

Appellant’s second PCRA petition, and Appellant filed a timely appeal at

Superior Court docket number 928 WDA 2017. On September 6, 2017, while

the appeal at 928 WDA 2017 was pending, the PCRA court denied Appellant’s

“motion for admission to the illegality of the sentence administered on

6/26/12,” and Appellant filed a notice of appeal at Superior Court docket

number 1405 WDA 2017.5

On May 25, 2018, our Court disposed of Appellant’s appeal from the

order denying his “motion for admission to the illegality of the sentence

administered on 6/26/2012.” Commonwealth v. Akan, 192 A.3d 274, 1405

WDA 2017 (Pa. Super. filed May 25, 2018) (unpublished memorandum). We

concluded that because an appeal from the denial of Appellant’s second PCRA

petition was pending, the order denying Appellant’s “motion for admission to

4 This Court noted that Appellant’s motion challenging the legality of his sentence was a PCRA petition. Akan, 1405 WDA 2017 (unpublished memorandum at *1 n.1) (citing Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) (stating that where a remedy is available under the PCRA, any petition filed after the judgment of sentence becomes final should be treated as a PCRA petition)). A challenge to the legality of one’s sentence is cognizable under the PCRA. Id.

5Appellant also filed an appeal that was docketed at 1404 WDA 2017. This appeal was quashed on November 21, 2017.

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the illegality of the sentence administered on 6/26/2012” was not a final order.

Id. Therefore, we vacated the order in Appellant’s case and remanded the

matter to the PCRA court. Id.

The PCRA court ultimately denied Appellant’s second PCRA petition, and

this Court affirmed the order denying PCRA relief. Commonwealth v. Akan,

193 A.3d 1131, 928 WDA 2017 (Pa. Super. filed June 29, 2018) (unpublished

memorandum). While the appeal at 1405 WDA 2017 remained pending,

Appellant filed his second motion for the recusal of Judge McDaniel on

December 14, 2017, which is the motion underlying the instant appeal. On

December 15, 2017, the PCRA court entered an order deferring a ruling on

this motion because appeals in this matter are “currently pending in the

Superior Court at Docket No. 1404 WDA 2017 and 1405 WDA 2017.”

Order, 12/14/17 (emphasis in original).6

6 The record reveals that at the time the PCRA court denied Appellant’s second motion for recusal on December 14, 2017, the appeal at 1404 WDA 2017 had already been quashed. Order, 11/21/17. However, the PCRA court’s statement regarding the appeal at 1404 WDA 2017 is of no moment because the appeals at 1405 WDA 2017 and 928 WDA 2017 remained pending before this Court. See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (stating that when a PCRA appeal is pending, 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). Thus, “as matter of jurisdiction, the PCRA court cannot entertain new PCRA claims or new PCRA petition when prior petition is still under review on appeal.” Commonwealth v. Ali, 10 A.3d 282, 320 n.33 (Pa. 2010) (citing Lark).

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Accordingly, the December 15, 2017 order deferring a ruling on

Appellant’s second motion for recusal did not dispose of any claims or any

parties. We conclude that the December 15, 2017 order was not a final order,

a collateral order, or an interlocutory order appealable as of right. Pursuant

to the Pennsylvania Rules of Appellate Procedure, this is an interlocutory order

that is not appealable pursuant to statute, rule, or case law, and we are

constrained to quash the appeal. See Pa.R.A.P. 311, Pa.R.A.P. 312, Pa.R.A.P.

313, and Pa.R.A.P. 341 (setting forth the requirements of an appealable

order).

Appeal quashed. Motion for special relief denied.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/11/2019

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