Com. v. Edwards, O.

• Court: Superior Court of Pennsylvania
• Decided: July 27, 2022
• Docket: 2604 EDA 2021
• Status: Unpublished

Opinion

J-S22012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OMAR EDWARDS : : Appellant : No. 2604 EDA 2021

Appeal from the PCRA Order Entered November 19, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0209372-1995

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

MEMORANDUM BY BOWES, J.: FILED JULY 27, 2022

Omar Edwards appeals pro se from the dismissal of his fifth Post

Conviction Relief Act (“PCRA”) petition as untimely. We affirm.

On October 28, 1994, Appellant shot and killed a man in a drive-by

shooting in the city of Philadelphia. On June 13, 1996, a jury found Appellant

guilty of first-degree murder.1 On January 27, 1997, the court sentenced

Appellant to life imprisonment without the possibility of parole.

Appellant filed a counseled direct appeal in February of 1997. On July

17, 1997, counsel submitted a motion requesting permission to withdraw and

indicating that Appellant wished to represent himself. On August 15, 1997,

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1 On February 5, 1996, a jury found Appellant guilty of criminal conspiracy, reckless endangerment, and possessing an instrument of a crime, but was unable to reach a verdict on the murder charge. Appellant’s conviction for first-degree murder was the result of a retrial. J-S22012-22

this Court granted counsel’s request and gave Appellant sixty days to file a

pro se appellate brief. Despite requesting and receiving an extension of time,

Appellant never submitted an appellate brief. Consequently, on January 8,

1998, this Court dismissed Appellant’s direct appeal. Appellant did not seek

allowance of appeal in the Supreme Court of Pennsylvania. Thus, his

judgment of sentence became final on February 9, 1998. See 42 Pa.C.S. §

9545(b)(3).

Appellant filed a timely pro se PCRA petition. Appointed PCRA counsel

filed a motion to withdraw and no-merit letter pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court issued Pa.R.Crim.P.

907 notice of its intent to dismiss the petition without a hearing, before

allowing counsel to withdraw and denying the petition. This Court affirmed

and our Supreme Court denied allowance of appeal. See Commonwealth v.

Edwards, 766 A.2d 885 (Pa.Super. 2000) (unpublished memorandum),

appeal denied, 771 A.2d 1279 (Pa. 2001). In 2002, 2015, and 2016, Appellant

litigated three more unsuccessful pro se PCRA petitions. See

Commonwealth v. Edwards, 823 A.2d 1024 (Pa.Super. 2003) (unpublished

memorandum) (affirming dismissal of Appellant’s second PCRA petition);

Commonwealth v. Edwards, 153 A.3d 1104 (Pa.Super. 2016) (unpublished

memorandum) (affirming dismissal of Appellant’s third PCRA petition);

Commonwealth v. Edwards, 221 A.3d 241 (Pa.Super. 2019) (non-

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precedential decision) (affirming dismissal of Appellant’s fourth PCRA

petition).

In 2019, while the appeal from the dismissal of his fourth petition was

pending, Appellant filed the petition that is the subject of this appeal. Therein,

Appellant requested reinstatement of his direct appeal rights nunc pro tunc.

Appellant argued that he satisfied the government interference exception to

the PCRA time bar because this Court failed to ensure that he knowingly

waived his right to counsel before allowing counsel to withdraw from his direct

appeal in 1997. The PCRA court took no action until Appellant’s pending PCRA

appeal had concluded. Thereafter, the PCRA court issued Rule 907 notice of

its intent to dismiss the fifth petition as untimely. On November 19, 2021,

after Appellant filed a response, the PCRA court dismissed Appellant’s PCRA

petition as untimely. This appeal followed.

Appellant asserts the following issue for our review: “Did the PCRA court

err[] when it denied the Appellant’s request for nunc pro tunc relief when

through counsel abandonment and government interference, the Appellant

was denied his constitutionally protected right to a counseled and effective

direct appeal in his case?” Appellant’s brief at 4.

We begin with a discussion of the pertinent legal principles. “Our

standard of review of a PCRA court’s dismissal of a PCRA petition is limited to

examining whether the PCRA court’s determination is supported by the record

evidence and free of legal error.” Commonwealth v. Whitehawk, 146 A.3d

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266, 269 (Pa.Super. 2016). “We grant great deference to the factual findings

of the PCRA court and will not disturb those findings unless they have no

support in the record. However, we afford no such deference to its legal

conclusions.” Commonwealth v. Dozier, 208 A.3d 1101, 1103 (Pa.Super.

2019) (quoting Commonwealth v. Brenner, 147 A.3d 915, 919 (Pa.Super.

2016)). “[W]here the petitioner raises questions of law, our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Pew, 189 A.3d 486, 488 (Pa.Super. 2018) (citation omitted). Finally, we

“may affirm a PCRA court’s decision on any grounds if the record supports it.”

Commonwealth v. Smith, 194 A.3d 126, 132 (Pa.Super. 2018) (citation

omitted).

It is well-established that a serial petition cannot be filed while a prior

PCRA appeal is pending. See Commonwealth v. Zeigler, 148 A.3d 849,

852 (Pa.Super. 2016) (“[P]revailing law requires that the subsequent PCRA

petition must give way to a pending appeal from the order denying a prior

petition.”). Accordingly, a petitioner must choose either to appeal from the

order denying his prior PCRA petition or to file a new PCRA petition. Id. This

Court has emphasized that a PCRA court cannot hold in abeyance a

subsequent petition filed when a first PCRA appeal was pending. See

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

Commonwealth v. Porter, 35 A.3d 4, 12 (Pa. 2012) (stating that holding

serial petitions in abeyance pending appeal in the same case perverts PCRA

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timeliness requirements). Instead, adherence to precedent demands that a

PCRA court dismiss any subsequent PCRA petition filed while that appeal is

pending. See Beatty, supra at 961 (citing Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000), overruled on other grounds by Commonwealth v.

Small, 238 A.3d 1267 (Pa. 2020)).

Accordingly, the PCRA court erred in holding the instant PCRA petition

in abeyance while the appeal from the dismissal of Appellant’s fourth petition

remained pending. As indicated above, Appellant had the option of either

going forward with his appeal from the order denying his fourth PCRA petition

or filing and pursuing his fifth PCRA petition, but he could not do both

simultaneously. See Zeigler, supra. As soon as Appellant decided to

exhaust the appeal from the denial of his fourth petition, the PCRA court was

required to dismiss any serial PCRA petitions that Appellant filed during the

pendency of that appeal. See Lark, supra. Accordingly, the PCRA court did

not have jurisdiction to consider the petition. Thus, we affirm dismissal of

Appellant’s current petition, albeit on different grounds from the PCRA court.

See Smith, supra at 132 (stating that an appellate court may affirm on any

basis supported by the record).

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/27/2022

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