Commonwealth v. Belle, 887 EDA 2022

• Court: Superior Court of Pennsylvania
• Writing for the Court: BOWES, J.
• Parties: COMMONWEALTH OF PENNSYLVANIA v. SAMMY D. BELLE, Appellant
• Docket Number: 887 EDA 2022,J-S37015-22
• Decision Date: 21 November 2022

COMMONWEALTH OF PENNSYLVANIA
v.
SAMMY D. BELLE, Appellant

No. 887 EDA 2022

No. J-S37015-22

Superior Court of Pennsylvania

November 21, 2022

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered March 14, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0804001-1980

Joseph D. Seletyn, Esq.

BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.

MEMORANDUM

BOWES, J.

Sammy D. Belle appeals from the March 14, 2022 order dismissing his petition for relief pursuant to the Post-Conviction Relief Act ("PCRA") as untimely pursuant to 42 Pa.C.S. § 9545(b)(1). We affirm.

In July 1983, a jury found Appellant guilty of second-degree murder, robbery, and possession of an instrument of crime after he shot and killed Lester Lawrence while robbing the victim's vehicle. Following his conviction, the trial court sentenced Appellant to life imprisonment. On February 24, 1988, Appellant's judgment of sentence was affirmed on direct appeal. See Commonwealth v. Belle, 534 A.2d 126 (Pa.Super. 1987) (unpublished memorandum), appeal denied, 539 A.2d 810 (Pa. 1988) ("Belle I").

In June 1988, Appellant filed a petition for relief under the since-repealed Post-Conviction Hearing Act, which was ultimately unsuccessful. See Commonwealth v. Belle, 593 A.2d 910 (Pa.Super. 1991) (unpublished

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memorandum), appeal denied, 602 A.2d 855 (Pa. 1991) ("Belle II"). In June 2009, Appellant filed a PCRA petition that the PCRA court dismissed as untimely. That holding was affirmed on appeal. See Commonwealth v. Belle, 81 A.3d 995 (Pa.Super. 2013) (unpublished memorandum at 4), appeal denied, 84 A.3d 1061 (Pa. 2014) ("Belle III").

In October 2019, Appellant filed a third post-conviction petition, which the PCRA court also deemed untimely. On appeal, this Court affirmed. See Commonwealth v. Belle, 222 A.3d 854 (Pa.Super. 2019) (non-precedential decision at 2) ("Belle IV"). On January 2, 2020, Appellant filed a petition for allowance of appeal to our Supreme Court in Belle IV.

On March 4, 2020, while Appellant's petition for allocatur remained pending in Belle IV, he filed the instant PCRA petition. See PCRA Petition, 3/4/20, at 1-10. This filing advanced claims of prosecutorial misconduct and ineffective assistance of counsel. Specifically, Appellant averred that the assistant district attorney ("ADA") attached to this case was "underhanded" by allegedly suppressing the testimony of an eyewitness to the shooting that would have exonerated him. Id. at 3. Appellant also alleged that his trial counsel was ineffective for failing to challenge an eyewitness identification of Appellant by a woman named Allison Graves. Id. at 4. The PCRA court took no immediate action with respect to this filing. On July 21, 2020, the Supreme Court filed an order denying Appellant's request for a discretionary appeal in Belle IV. See Commonwealth v. Belle, 237 A.3d 393 (Pa. 2020).

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In November 2021, the PCRA court filed notice of its intent to dismiss Appellant's PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907(1). Two months later, Appellant submitted a document titled "Newly Discovered Evidence." See Newly Discovered Evidence, 1/18/22, at 1-10. In this filing he alleged for the first time that his claims in this matter were allegedly based upon newly discovered evidence. Id. at 3. His substantive claims for relief remained unchanged.

On February 22, 2022, the PCRA court entered an order dismissing Appellant's petition as untimely pursuant to 42 Pa.C.S. § 9545(b)(1). See Order, 2/22/22, at 1. Appellant filed a timely notice of appeal to this Court. See Notice of Appeal, 3/21/22, at 1. The PCRA court did not direct Appellant to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b) and he did not file one. The PCRA court filed an opinion pursuant to Rule 1925(a).

Preliminarily, we observe that Appellant filed his March 4, 2020 PCRA petition while his claims in Belle IV were still on appeal in our Supreme Court. Pursuant to Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000), it is well-established that "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." Under Lark, "a petitioner who files an appeal from an order denying his prior PCRA petition must withdraw the appeal before he can pursue a subsequent PCRA petition." Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa.Super. 2019). Therefore, "the PCRA court is required under Lark to

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dismiss any subsequent PCRA petitions filed while that appeal is pending." Id. Moreover, permitting a PCRA petition filed in violation of Lark to remain in abeyance until it is cognizable also violates Pennsylvania law. Id. at 963 ("[N]o court has jurisdiction to place serial [PCRA]...