HomeMy WebLinkAbout97-1081 criminal appealJ. S18009/00
2000 PA Super 226
COMMONWEALTH OF PENNSYLVANIA, :
Appellee :
:
V, :
:
HARUN LESLIE, :
Appellant :
BEFORE'
IN THE SUPERIOR COURT OF
P E N N SYLVAN IA
No. 999 MDA 1999
Appeal from the PCRA Order June 1, 1999,
In the Court of Common Pleas of Cumberland County,
Criminal, No. 97-1081
McEWEN, P.J., CAVANAUGH, and MONTEMURO*, JJ.
OPINION PER CURIAI~I: I: ! L ~ D AUG 0 ? 2080
¶1 This appeal has been taken from the order entered June 1, 1999,
which denied, after an evidentiary hearing, the counseled, amended petition
for relief filed by appellant, Harun Leslie, pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that the PCRA
court erred when it rejected his claim that trial counsel was ineffective as a
result of his failure to present a material fact witness who was available and
willing to testify on his behalf. For the reasons that follow, the order
denying PCRA relief must be vacated since the PCRA court did not have
jurisdiction to proceed in the action while the appeal to the Superior Court
was pending.
¶2 After a three-day jury trial in September, 1997, while represented by
Attorney R. Mark Thomas, appellant was convicted of the offenses of
conspiracy to commit murder and receiving stolen property, and was
sentenced on November 12, 1997, to an aggregate term of from 2 1/2 years
*Retired Justice assigned to the Superior Court.
J. S18009/00
to 7 years imprisonment. Current counsel, Robert Peter Kline, Esquire, was
appointed on November 14, 1997, to represent appellant on appeal, and on
November 21, 1997, Attorney Kline filed a timely motion to modify and
reduce sentence. This motion was denied by order entered January 16,
1998, and on February 13, 1998, a timely notice of appeal was filed.
Judgment of sentence was affirmed on direct appeal by this Court by
unpublished memorandum filed February 26, 1999. Commonwealth v.
Leslie, 737 A.2d 808 (Pa.Super. 1999).
¶3 Following the denial of his post-sentence motion on January 16, 1998,
but one week prior to the institution of his direct appeal (which was filed on
February 13, 1998), appellant, on February 6, 1998, filed a pro se petition
for PCRA relief. While the trial court should have dismissed the PCRA petition
without prejudice as premature, Commonwealth v. O'Neil, 573 A.2d 1112
(Pa. Super. 1990), it failed to do so and instead proceeded on the merits of
the petition, while the direct appeal proceeded through the Superior Court.
¶4 Attorney Kline caused an amended PCRA petition to be filed on April
24, 1998. The PCRA court conducted evidentiary hearings on June 16,
1998, and February 8, 1999. The Superior Court, by order dated February
26, 1999, affirmed the judgment of sentence and then, on June 1, 1999, the
PCRA court dismissed the amended PCRA petition. This appeal timely
followed.
-2-
J. S18009/00
¶5 A PCRA petition may only be filed after an appellant has waived or
exhausted his direct appeal rights See: Commonwealth v. Fralic, 625
A.2d :[249, 1252 n.1 (Pa.Super. 1993). The comments to Pa.R.Crim. P.1501
clearly state that the PCRA "is not intended to be a substitute for ... the
availability of appeal or a post-sentence motion." Pa.R.Crim. P.150:[.
Further, "the defendant must raise ... all grounds for relief available after
conviction and exhaustion of the appellate process." Id. Here, the PCRA
court improperly proceeded on the merits of the petition during the
pendency of the direct appeal.
¶6 We, therefore, vacate the order entered .lune 1, 1999, and remand for
the appointment of new counsel to assist appellant in the amendment of his
PCRA petition. ~
¶7 Order vacated. Case remanded. Jurisdiction relinquished.
Date:
z As the original PCRA petition was filed on February 6, 1998, any
amendment thereto will not be barred by Section 9545(b) of the PCRA.
-3-