Com. v. Spuck, D.

Opinion

J-S83040-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. 733 WDA 2016

Appeal from the PCRA Order April 7, 2016 in the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000396-1995

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

JUDGMENT ORDER BY STRASSBURGER, J.: FILED DECEMBER 29, 2016

Daniel L. Spuck (Appellant) appeals from the April 7, 2016 order that

denied his serial petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

In 1996, Appellant was convicted of third-degree murder and other

crimes. This Court affirmed Appellant’s resulting judgment of sentence on

February 27, 1998, and our Supreme Court denied allowance of appeal on

October 1, 1998. Commonwealth v. Spuck, 714 A.2d 1089 (Pa. Super.

1998) (unpublished memorandum), appeal denied, 729 A.2d 1128 (Pa.

1998). Since 1998, Appellant has sought collateral review on many

occasions.

The dismissal of three of Appellant’s prior PCRA petitions was affirmed

by this Court in December 2015, with reargument denied in February 2016.

*Retired Senior Judge assigned to the Superior Court. J-S83040-16

Commonwealth v. Spuck, 135 A.3d 659 (Pa. Super. 2015) (unpublished

memorandum), reargument denied (Feb. 25, 2016). On March 28, 2016,

Appellant filed a petition for allowance of appeal in those cases. Appellant

filed the PCRA petition that is the subject of the instant appeal on April 4,

2016, while the petition for allowance of appeal was still pending in our

Supreme Court.

“[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 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”).

Accordingly, the PCRA court properly dismissed Appellant’s April 4,

2016 PCRA petition.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/29/2016

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