Com. v. Jones, M.

Opinion

J-S53009-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARCUS JONES : : Appellant : No. 2512 EDA 2018

Appeal from the Order Entered October 9, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001100-2016

BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

JUDGMENT ORDER BY OLSON, J.: FILED NOVEMBER 13, 2019

Appellant, Marcus Jones, appeals pro se from the order entered on

October 9, 2019, dismissing his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Because Appellant filed his

PCRA petition prematurely while his direct appeal from the underlying

judgment of sentence was pending, we lack jurisdiction to consider the appeal

and are constrained to quash it.

On August 21, 2017, following a bench trial, the trial court convicted

Appellant of attempted murder, aggravated assault, robbery, and theft by

unlawful taking.1 On August 21, 2017, the trial court sentenced Appellant to

13 to 26 years of imprisonment for attempted murder, with a 10-year

consecutive term of probation for robbery. The convictions for aggravated ____________________________________________

1 18 Pa.C.S.A. §§ 2502/901, 2702(a)(1), 3701(a)(1)(i), and 3921(a), respectively. J-S53009-19

assault and theft by unlawful taking merged for sentencing purposes.

Subsequently, upon Appellant’s request, the trial court allowed counsel to

withdraw. Appellant filed a pro se notice of appeal, challenging his judgment

of sentence, on August 31, 2017.2

Thereafter, prior to the resolution of Appellant’s direct appeal, Appellant

filed a pro se PCRA petition on April 10, 2018. The PCRA court denied relief

by order dated July 17, 2018. On August 10, 2018, Appellant filed the instant

pro se appeal that was docketed with this Court at 2512 EDA 2018.

We cannot reach the merits of Appellant’s claims because, as discussed

below, the PCRA court lacked jurisdiction to entertain Appellant’s pro se PCRA

petition while his direct appeal remained pending before this Court.3 This

Court has stated that “[a] PCRA petition may only be filed after an appellant

has waived or exhausted his direct appeal rights.” Commonwealth v.

Leslie, 757 A.2d 984, 985 (Pa. Super. 2000) (emphasis in original; citation

omitted); see also 42 Pa.C.S.A. § 9545(b) (stating that a PCRA petition “shall

be filed within one year of the date the judgment becomes final” and “a

judgment of sentence becomes final at the conclusion of direct review[.]”).

When a direct appeal is still pending, a PCRA petition is premature and an

appeal taken from the denial of collateral relief is subject to quashal.

Commonwealth v. Seay, 814 A.2d 1240, 1241 (Pa. Super. 2003) ____________________________________________

2 Appellant’s direct appeal was docketed with this Court at 3020 EDA 2017.

3 “We may raise jurisdictional issues sua sponte.” Commonwealth v. Culsoir, 209 A.3d 433, 435 (Pa. Super. 2019).

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(“Inasmuch as Appellant's direct appeal is still pending […], it is patently clear

that this PCRA petition is premature, and we must quash it.”); see also

Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super. 2015) (“When a PCRA

court lacks jurisdiction to consider the merits of a [PCRA] petition, we likewise

lack jurisdiction to consider an appeal from the disposition of the petition.”).

Accordingly, we quash this appeal because this Court lacks jurisdiction to

consider an appeal from the dismissal of Appellant’s prematurely filed PCRA

petition.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/13/2019

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