Com. v. Roussaw, R.

• Court: Superior Court of Pennsylvania
• Decided: March 22, 2019
• Docket: 2157 EDA 2018
• Status: Unpublished

Opinion

J-S10038-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ROUTHA R. ROUSSAW : : Appellant : No. 2157 EDA 2018

Appeal from the PCRA Order Entered June 29, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0931421-1989

BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED MARCH 22, 2019

Appellant, Routha R. Roussaw, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, which dismissed as untimely

his fifth petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On April 24, 1991, a jury convicted Appellant of

first-degree murder, robbery, and conspiracy. The court sentenced Appellant

to life imprisonment for the murder conviction, a consecutive term of 10 to 20

years’ imprisonment for the robbery conviction and a consecutive term of 5 to

10 years’ imprisonment for the conspiracy conviction. This Court affirmed the

judgment of sentence concerning Appellant’s murder and conspiracy

convictions on November 17, 1992, but vacated and remanded for a new trial

regarding the robbery conviction, due to a flawed jury instruction. Our

Supreme Court denied allowance of appeal on June 29, 1993. See

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S10038-19

Commonwealth v. Roussaw, 620 A.2d 1237 (Pa.Super. 1992), appeal

denied, 535 Pa. 617, 629 A.2d 1379 (1993). Upon remand, the

Commonwealth obtained a nolle prosequi on the robbery charge on September

24, 1993.

Between 1996 and 2015, Appellant unsuccessfully litigated three PCRA

petitions. On May 17, 2017, Appellant filed his fourth PCRA petition. Following

notice per Pa.R.Crim.P. 907, the court denied relief on August 25, 2017.

Appellant pursued a timely appeal from the denial of his fourth PCRA petition.

While Appellant’s appeal from the denial of his fourth PCRA petition was still

pending, he filed the current pro se fifth PCRA petition on June 6, 2018. The

court issued Rule 907 notice on June 15, 2018; Appellant responded pro se

on June 26, 2018. On June 29, 2018, the court dismissed Appellant’s fifth

petition as untimely. Subsequently, on July 9, 2018, this Court affirmed the

denial of Appellant’s fourth PCRA petition. See Commonwealth v.

Roussaw, 194 A.3d 653 (Pa.Super. 2018).

Appellant timely filed a notice of appeal on July 12, 2018, from the denial

of his fifth PCRA petition. No Pa.R.A.P. 1925(b) statement was ordered or

filed.

Preliminarily, Pennsylvania law makes clear the trial court has no

jurisdiction to adjudicate claims directly related to 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, 560 Pa. 487,

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493, 746 A.2d 585, 588 (2000). See also Commonwealth v. Montgomery,

181 A.3d 359, 364 (Pa.Super. 2018) (en banc), appeal denied, ___ Pa. ___,

190 A.3d 1134 (2018) (reaffirming that Lark precludes consideration of

subsequent PCRA petition while appeal of prior PCRA petition is still pending).

Instantly, Appellant’s appeal from the denial of his fourth PCRA petition

in this case was still pending when he filed his fifth PCRA petition on June 6,

2018. Under prevailing law, the court had no jurisdiction to address the fifth

PCRA petition before disposition of Appellant’s pending appeal from the denial

of his fourth PCRA petition. See Lark, supra; Montgomery, supra.

Accordingly, the court properly dismissed Appellant’s fifth PCRA petition. See

generally Commonwealth v. Kemp, 961 A.2d 1247 (Pa.Super. 2008) (en

banc) (explaining this Court can affirm on any valid basis).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/22/19

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