Com. v. Spuck, D.

Opinion

J-S37033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DANIEL L. SPUCK

Appellant No. 1702 WDA 2015

Appeal from the PCRA Order September 30, 2015 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000396-1995

*****

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

Appellant No. 1703 WDA 2015

Appeal from the PCRA Order September 1, 2015 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000396-1995

BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

JUDGMENT ORDER BY LAZARUS, J.: FILED JULY 21, 2016

Daniel L. Spuck appeals, pro se, from the orders entered in the Court

of Common Pleas of Clearfield County, dismissing his “Motion to Vacate

Judgment of Sentence/Motion to Set Aside Mandatory Minimum Sentence”

and “Defendant’s Permission to Amend His Amended PCRA” as untimely J-S37033-16

petitions filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-

9546 (“PCRA”). Although for a different reason than stated by the PCRA

court, we affirm.

In 1996, Spuck was convicted of third-degree murder and related

crimes following the stabbing death of Michael Allen Cramer and Spuck’s ex-

wife. This Court affirmed his judgment of sentence in 1998 and our

Supreme Court denied allowance of appeal. Since that time, Spuck “has

sought collateral review on umpteen occasions.” Commonwealth v.

Spuck, Nos. 692 & 693 WDA 2015 (Pa. Super. filed 12/14/15) (unpublished

memorandum).

Relevant to the disposition of this appeal, on February 2, 2015, Spuck

filed a Motion for Post Conviction Collateral Relief. On April 8, 2015, Spuck

filed two documents, styled as “Pro Se Motion for Contempt Upon the

Clearfield County District Attorney” and “Motion Requesting the Testing of

Blood and DNA,” which were properly construed by the PCRA court as having

been filed pursuant to the PCRA. By orders dated March 25, 2015 and April

8, 2015, respectively, those petitions were all dismissed. Spuck filed a

timely appeal of both orders.

While the March 25, 2015 and April 8, 2015 orders were on appeal

before this Court, on July 27, 2015, Spuck filed a “Motion to Vacate

Judgment of Sentence/Motion to Set Aside Mandatory Minimum Sentence,”

which the PCRA court properly treated as a PCRA petition. The court

dismissed that petition by order dated September 2, 2015. On September

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11, 2015, Spuck filed a document entitled “Defendant’s Permission to Amend

his Amended PCRA,” which the PCRA court dismissed that same date. The

current appeal is from the September 2, 2015 and September 11, 2015

orders.

“[W]hen 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.”

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). See also

Commonwealth v. Ali, 10 A.3d 282, 320 (Pa. 2010) (citing Lark for the

proposition that “as [a] matter of jurisdiction, [a] PCRA court cannot

entertain new PCRA claims or [a] new PCRA petition when [a] prior petition

is still under review on appeal”).

Spuck filed the PCRA petitions that are the subject of the instant

appeal on July 27, 2015 and September 11, 2015, while the March 25, 2015

and April 8, 2015 orders of the PCRA court remained pending on appeal.

Under Lark, the filings were impermissible. Accordingly, the PCRA court did

not err in dismissing them.1

Orders affirmed. ____________________________________________

1 Although Spuck’s July 27, 2015 petition was dismissed by the PCRA court as untimely, and not as impermissible under Lark, we may affirm a decision of the PCRA court on any basis. Commonwealth v. Callahan, 101 A.3d 118, 124 (Pa. Super. 2014).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/21/2016

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