Com. v. Lark

• Decision Date: 23 February 2000
• Citation: 746 A.2d 585,560 Pa. 487
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert LARK, Appellant.
• Court: Pennsylvania Supreme Court

746 A.2d 585

560 Pa. 487

COMMONWEALTH of Pennsylvania, Appellee, v. Robert LARK, Appellant.

Supreme Court of Pennsylvania.

Submitted July 28, 1999.

Decided February 23, 2000.

Robert Brett Dunham, Philadelphia, for Robert Lark.

Catherine Marshall, Philadelphia, for Com.

Robert A. Graci, Harrisburg, for Office of Atty. Gen.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

CAPPY, Justice.

In this appeal, Appellant contends that the Court of Common Pleas of Philadelphia County erred in dismissing his second petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., as untimely. We affirm.

On June 28, 1985, Appellant was convicted of first degree murder and related offenses, and was sentenced to death. This court affirmed that sentence on direct appeal on May 20, 1988. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988). Appellant's first petition for collateral review pursuant to the PCRA was dismissed by the trial court on September 12, 1995. Thereafter, he appealed.

In April 1997, while the first PCRA petition was pending on appeal, the Philadelphia District Attorney's Office released a videotape depicting a training session by Jack McMahon (the "McMahon tape"). On July 1, 1997, Appellant filed an Application for Remand Pursuant to Pa.R.A.P. 123, requesting that this court remand the matter to the Court of Common Pleas to permit proceedings with regard to post-conviction claims arising from the release of the McMahon tape. Appellant, an African-American, asserted that the videotape shows McMahon training district attorneys to use race- and gender-based stereotypes as a basis for striking potential jurors from jury venires. According to Appellant, the tape evidences the discriminatory jury selection policy of the Philadelphia District Attorney's office which contravenes Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and deprived him of a fair trial. On July 23, 1997, we issued an opinion affirming the denial of PCRA relief. Commonwealth v. Lark, 548 Pa. 441, 698 A.2d 43 (1997). On July 30, 1997, we denied Appellant's Application for Remand due to noncompliance with Pa.R.A.P. 2501 (governing post-submission communications).

On August 29, 1997, Appellant filed the instant PCRA petition, his second, in which he asserted a claim identical to the one that he had raised in his Application for Remand. On January 9, 1998, he filed an amended post-conviction petition. On June 9, 1998, following oral argument, the trial court dismissed the second PCRA petition without an evidentiary hearing. The court found the petition untimely because the claim was not filed within sixty days of the date that it could have been presented. Notes of PCRA Hearing, 6/9/98 at 13-14. This appeal followed.¹

The General Assembly promulgated amendments to the PCRA, effective January 16, 1996, which mandate that all petitions for post-conviction relief, including second and subsequent petitions, be filed within one year of the date upon which the judgment became final, unless one of three exceptions apply. A judgment of sentence becomes final at the conclusion of direct review or at the expiration of the time for seeking such review. 42 Pa.C.S. § 9545(b)(3). Appellant's judgment became final ninety days after this court's decision on May 20, 1988, when the time for seeking discretionary review with the Supreme Court expired. See U.S. Supreme Court Rule 13. Thus, this second petition is untimely unless Appellant can plead and prove that one of the following three exceptions to 42 Pa.C.S. § 9545(b)(1) applies:

(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, an appellant who invokes one of these exceptions must file his claim "within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).

Appellant contends that the Post Conviction Relief Act directs an appellant to file a subsequent PCRA petition within sixty days of the discovery of new grounds for relief, but does not explain how to proceed if an appeal of a prior PCRA petition is currently pending. He questions whether the courts of common pleas have jurisdiction to entertain a subsequent petition under these circumstances. Appellant asserts that he filed the second petition in a timely manner because it was filed within sixty days of this court's orders denying relief pursuant to his first PCRA petition and remand request. We find merit in this contention. Appellant initially sought to remand the matter to the trial court for an evidentiary hearing via an Application for Remand Pursuant to Pa.R.A.P. 123, which we denied. Appellant could not have filed his second PCRA petition in the court of common pleas while his first PCRA petition was still pending before this court. The trial court had no jurisdiction to adjudicate issues directly related to this case; only this court did. A second appeal cannot be taken when another proceeding of the same type is already pending. See C.J.S. Appeal and Error § 20 ("As a general rule a second proceeding to obtain a review by an appellate court cannot be taken while a prior valid proceeding for such purpose is still pending, and if it is attempted, the second proceeding will be dismissed, unless it has been validated by the abandonment of the first proceeding, or the first proceeding is so defective and ineffectual that it cannot properly be regarded as pending.") (footnotes omitted).

We now hold that when 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.² If the subsequent petition is not filed within one year of the date when the judgment became final, then the petitioner must plead and prove that one of the three exceptions to the time bar under 42 Pa.C.S. § 9545(b)(1) applies. The subsequent petition must also be filed within sixty days of the date of the order which finally resolves the previous PCRA petition, because this is the first "date the claim could have been presented." 42 Pa. C.S. § 9545(b)(2).

Applying this standard, we must determine whether the trial court erred in dismissing the petition as untimely. The second PCRA petition was not filed within one year of the date that the judgment became final. Therefore, we must ascertain whether Appellant can invoke one of the three exceptions pursuant to 42 Pa. C.S. § 9545(b)(1)(i)-(iii). Appellant claims, and we agree, that the second PCRA petition falls within the exception under 42 Pa.C.S. § 9545(b)(1)(ii). The Commonwealth concedes that the substance of the McMahon tape was publicized in early April 1997. Therefore, the facts upon which Appellant based his claim were not known to him and could not have been discovered in the exercise of due diligence until that date. At that time, his first PCRA petition was pending on appeal before this court. Within sixty days of the order denying relief pursuant to his first petition, he filed his second petition. Thus, we find that the presentation of the claim regarding the McMahon tape in the second PCRA petition was timely, and the trial court erred by holding otherwise.³

Although the trial court did not address the merits of Appellant's Batson claim, a sufficient record exists which permits this court's review. See Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346, 351 (1999)

. Appellant asserts that the Commonwealth used ten of its fourteen peremptory strikes in a racially discriminatory manner to strike African-Americans from the jury. He claims that the prosecutor's statement, "Oh, how awful", in response to defense counsel's allegation that the prosecutor was "striking all blacks" during voir dire, was a tacit admission of such conduct, and the trial court improperly refused to allow defense counsel to make a record of the race of these venirepersons. See N.T. 6/7/85 at 177-181.⁴ Appellant asserts that the McMahon tape, coupled with the rest of this evidence, establishes a prima facie case of discrimination which entitles him to a new trial, or at a minimum, to an evidentiary hearing to establish the alleged discriminatory practice. We disagree.

Appellant's trial occurred in 1985, and was prosecuted by Assistant District Attorney John Carpenter. The McMahon tape was made in 1986 (according to the Commonwealth) or 1987 (according to Appellant). In the tape, Attorney McMahon comments upon the Batson decision, which was decided in 1986. We reject Appellant's suggestion that Attorney McMahon's statements during a training session in 1986 or 1987 governed the conduct of a different prosecutor in 1985 merely because both attorneys worked in the same office. We have also previously determined that the tape is not sufficient to establish a policy of discrimination in jury selection by the prosecutors in the District Attorney's Office of Philadelphia County. See Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 443 n. 10 (1999)

. Thus, the McMahon tape in and of itself "does not demonstrate that there was discrimination in his case," id. (emphasis in original), and cannot...