Com. v. Moss, R. ( 2015 )

J-S60023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RUSSELL WESLEY MOSS
Appellant No. 1463 EDA 2015
Appeal from the PCRA Order April 27, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002091-2002
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED NOVEMBER 17, 2015
Russell Wesley Moss appeals from the order of the Court of Common
Pleas of Delaware County that dismissed without prejudice his third petition
filed pursuant to the Post Conviction Relief Act.1 After careful review, we
affirm.
On September 23, 203, following Moss’ guilty plea, the trial court
sentenced him to 8-20 years’ incarceration for third-degree murder and a
concurrent term of 5-10 years’ incarceration for solicitation to commit
murder. This Court affirmed the judgment of sentence on February 28,
2005.
____________________________________________
1
42 Pa.C.S. §§ 9541-9546.
J-S60023-15
Moss filed a timely PCRA petition, which the court dismissed on
December 28, 2006. This Court affirmed on October 11, 2007.
Moss filed his second PCRA petition on July 21, 2014. The court
dismissed the petition on October 8, 2014. Moss filed a timely appeal to this
Court. Commonwealth v. Moss, No. 3605 EDA 2015 (filed October 20,
2014). The appeal is pending disposition.
On April 20, 2015, Moss filed a third PCRA petition, which the court
dismissed without prejudice on April 27, 2015. Moss filed an appeal to this
Court on May 18, 2015.
In Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000), our
Supreme Court held:
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.
Accordingly, in light of the pending PCRA petition, the court did not err
when it dismissed Moss’ third PCRA petition without prejudice.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2015
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