Com. v. Derk, S.

Opinion

J-S15010-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEVEN CARL DERK : : Appellant : No. 1303 MDA 2022

Appeal from the Order Entered August 31, 2022 In the Court of Common Pleas of Snyder County Criminal Division at No(s): CP-55-CR-0000153-1993, CP-55-CR-0000306-1992

BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.

JUDGMENT ORDER BY BOWES, J.: FILED MAY 16, 2023

Steven Carl Derk appeals pro se from the order that dismissed his serial

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

In 1993, Appellant was convicted of murdering his paramour’s two-year-

old son. His sentence of life imprisonment was affirmed on direct appeal. See

Commonwealth v. Derk, 685 A.2d 207 (Pa.Super. 1996) (unpublished

memorandum), aff’d, 719 A.2d 262 (Pa. 1998) (equally divided court).

Appellant’s PCRA petitions filed in 1999, 2010, and 2014 resulted in no relief.

Appellant filed a PCRA petition in August 2021 which was dismissed by

order of November 24, 2021, appealed to this Court, and assigned docket

number 49 MDA 2022. While that appeal remained pending, Appellant filed

additional PCRA petitions on March 17 and April 7, 2022. The PCRA court

dismissed the petitions by order dated August 31, 2022, indicating therein J-S15010-23

that it was without jurisdiction to entertain the petitions while the November

2021 petition was on appeal to this Court. Appellant filed a notice of appeal

from that dismissal, which was issued the above-captioned docket number.

This Court issued a rule to show cause why we should not quash this

appeal due to the pendency of the appeal at 49 MDA 2022. Appellant filed a

response in which he acknowledged that “a PCRA cannot be filed with a

subsequent [sic] appeal pending.” Response to Rule to Show Cause,

10/17/22, at 2. He indicated that he was “willing to withdraw [the instant

appeal], but request[ed] the right to re-file” his claims.1 Id. The

Commonwealth, for its part, has urged us to affirm the PCRA court’s August

31, 2022 order, citing precedent that supports the PCRA court’s determination

that it lacked jurisdiction to consider it. See Commonwealth’s brief at 8-10

(citing, inter alia, Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)

(“When an appellant’s PCRA appeal is pending before a court, 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.”)2).

____________________________________________

1 This Court discharged the rule for determination by the merits panel. See Order, 4/4/23.

2 We acknowledge that Lark was overruled on other grounds not pertinent to this appeal. See Commonwealth v. Small, 238 A.3d 1267, 1271 (Pa. 2020).

-2- J-S15010-23

As such, there is no disagreement among the PCRA court and the parties

that the court lacked jurisdiction to entertain Appellant’s petitions filed during

the pendency of an appeal from the dismissal of his prior PCRA petition. We

agree. See, e.g., Commonwealth v. Montgomery, 181 A.3d 359

(Pa.Super. 2018) (en banc) (“Lark precludes consideration of a subsequent

petition from the time a PCRA order is appealed until no further review of that

order is possible.”). As such, the PCRA court’s August 31, 2022 order properly

dismissed Appellant’s petition for lack of jurisdiction and is hereby affirmed.3

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 05/16/2023

3 This Court resolved the appeal at 49 MDA 2022 on March 13, 2023. See Commonwealth v. Derk, __ A.3d __, 2023 WL 2471437 (Pa.Super. Mar. 13, 2023) (non-precedential decision). Once this and any other pending PCRA appeals are final in accordance with Commonwealth v. Montgomery, 181 A.3d 359 (Pa.Super. 2018) (en banc), Appellant is free to endeavor to meet a PCRA timeliness exception and to reassert any PCRA claims that have not been addressed on their merits. We offer no opinion on whether he will be able to do so, but note that our ruling herein does not prejudice his rights to make the attempt.

-3-