Com. v. Constantini, D.

• Court: Superior Court of Pennsylvania
• Decided: November 18, 2024
• Docket: 2616 EDA 2023
• Status: Unpublished

Opinion

J-S28031-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID FRANCIS CONSTANTINI : : Appellant : No. 2616 EDA 2023

Appeal from the PCRA Order Entered September 22, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0000744-2011

BEFORE: STABILE, J., MURRAY, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED NOVEMBER 18, 2024

David Francis Constantini (“Constantini”) appeals pro se from the order

dismissing his fifth petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”).1 We quash.

Based on our disposition, a detailed recitation of this matter is

unnecessary. Briefly, in 2012, a jury convicted Constantini of retail theft and

receiving stolen property. The trial court imposed an aggregate sentence of

two to four years’ incarceration, to be followed by three years’ probation.

While serving the probationary term of this sentence, Constantini pleaded

guilty to new drug-related crimes. As a result, the trial court revoked his

probation and on October 10, 2018, imposed a new sentence of two to four

____________________________________________

1 See 42 Pa.C.S.A. §§ 9541-9546. J-S28031-24

years’ incarceration.2 Constantini thereafter filed a direct appeal challenging

the discretionary aspects of his sentence. On May 7, 2019, this Court affirmed

the judgment of sentence. See Commonwealth v. Constantini, 217 A.3d

377 (Pa. Super 2019) (unpublished memorandum). Constantini did not file a

petition for allowance of appeal with our Supreme Court.

On June 22, 2023, after three unsuccessful PCRA petitions, Constantini

filed his fourth pro se PCRA petition, alleging that his revocation sentence was

excessive and unjust. On August 4, 2023, while the petition was pending,

Constantini filed the instant pro se PCRA petition, his fifth, claiming that the

government interfered in his case since “the [c]ourts and the district

attorney[’s] office has intentionally caused a miscarriage of justice, by abusing

authority and numerous acts of misconduct.” Constantini’s PCRA Petition,

8/4/23, at 3. The PCRA court filed a Pa.R.Crim.P. 907 notice of its intent to

dismiss Constantini’s fourth petition, and on August 8, 2023, dismissed it

without a hearing.3 On August 17, 2023, Constantini timely filed a pro se ____________________________________________

2 To be eligible for PCRA relief, a petitioner must be “currently serving a sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S.A. § 9543(a)(1)(i). This panel directed the PCRA court to clarify whether Constantini is still currently serving his sentence. The PCRA court responded that Constantini was on parole in 2020, but because he violated it, the parole board recomputed his maximum sentence date to be October 22, 2025. See PCRA Court Response to Rule to Show Cause, 10/22/24. Therefore, Constantini is still serving the underlying sentence.

3 On the same day that the PCRA court dismissed his fourth petition, Constantini filed a pro se motion to produce transcripts in relation to this petition. The PCRA court denied this motion, and on October 23, 2023, (Footnote Continued Next Page)

-2- J-S28031-24

notice of appeal from that order. We note that on July 16, 2024, this Court

dismissed the appeal, docketed at 2236 EDA 2023, because Constantini failed

to file a brief.

Meanwhile, on September 22, 2023, the PCRA court dismissed

Constantini’s instant fifth petition. We note that in its Rule 907 notice, the

court initially opined that the petition should be dismissed as untimely filed.

However, in its Pa.R.A.P. 1925(a) opinion, the court instead suggested that

this Court should quash the appeal for lack of jurisdiction. See PCRA Court

Opinion, 11/21/23, at 3. On October 5, 2023, Constantini filed the instant pro

se notice of appeal. Both Constantini and the PCRA court complied with Rule

1925.

Before we address the merits of Constantini’s issues, we must consider

whether the PCRA court had jurisdiction to enter the underlying order, which

we may raise sua sponte. See Commonwealth v. Arcelay, 190 A.3d 609,

614 (Pa. Super. 2018). Our standard of review is de novo, and our scope or

review is plenary. See id.

“Any act taken by a court without proper jurisdiction is null and void.”

Commonwealth v. Harris, 230 A.3d 1124, 1127 (Pa. Super. 2020) (citation

and quotation marks omitted). This Court has held that “PCRA courts are not

jurisdictionally barred from considering multiple PCRA petitions relating to the

Constantini filed a notice of appeal. On February 20, 2024, this Court dismissed the appeal, docketed at 2728 EDA 2023, because Constantini failed to file a brief.

-3- J-S28031-24

same judgment of sentence at the same time[,] unless the PCRA court’s order

regarding a previously filed petition is on appeal and, therefore, not yet final.”

Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018) (en

banc) (footnote omitted and emphasis added).

This Court has further explained:

Pennsylvania law makes clear the trial court has no jurisdiction to consider a subsequent PCRA petition while an appeal from the denial of the petitioner’s prior PCRA petition in the same case is still pending on appeal. Commonwealth v. Lark, [746 A.2d 585, 588 (Pa. 2000), overruled on other grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020)]. See also [Montgomery, 181 A.3d at 364] (reaffirming that Lark precludes consideration of subsequent PCRA petition while appeal of prior PCRA petition is still pending).

Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa. Super. 2019); see also

Commonwealth v. Thompson, 292 A.3d 1082 (Pa. Super. 2023)

(unpublished memorandum at *5) (applying Montgomery and Beatty to

conclude that the PCRA court lacked jurisdiction to rule on appellant’s second

PCRA petition, when the appellant had appealed from the dismissal of his first

PCRA petition, even though the second petition was filed prior to the appeal). 4

In the instant matter, the PCRA court initially dismissed Constantini’s

fifth petition as untimely filed without meeting any of the PCRA’s timeliness

exceptions. However, in its Rule 1925(a) opinion, the court concluded that it

lacked jurisdiction to consider Constantini’s fifth PCRA petition, because the

4 An unpublished non-precedential memorandum decision of the Pennsylvania

Superior Court, filed after May 1, 2019, may be cited for its persuasive value. See Pa.R.A.P. 126(b)(1)-(2).

-4- J-S28031-24

appeal from his fourth PCRA petition was pending at the time of its review.

See PCRA Court Opinion, 11/21/23, at 3. Thus, the PCRA court suggested

that this Court should quash the appeal. See id.

We similarly conclude that the PCRA court lacked jurisdiction to consider

Constantini’s fifth PCRA petition, even though it was filed before he appealed

from the dismissal of his fourth PCRA petition. See Montgomery, 181 A.3d

at 364-65; see also Beatty, 207 A.3d at 961; Thompson, 292 A.3d at 1082

(unpublished memorandum at *5). However, we determine that because the

PCRA court lacked jurisdiction to dismiss Constantini’s fifth petition, that order

is a legal nullity. See Harris, 230 A.3d at 1127. Accordingly, we quash this

appeal.

Appeal quashed.

Date: 11/18/2024

-5-