Commonwealth v. Brown, J.

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 472 WAL 2019

:

Respondent : Petition for Allowance of Appeal

: from the Unpublished

: Memorandum and Order of the

v. : Superior Court at No. 1468 WDA

: 2018 (Olson, Ott, Colins, JJ.),

: entered on October 2, 2019,

JAMIE M. BROWN, : affirming the PCRA Order of the

: Beaver County Court of Common

Petitioner : Pleas at No. CP-04-CR-0000913-

: 2001 (McBride, S.J.), entered on

: September 21, 2018

CONCURRING AND DISSENTING STATEMENT

JUSTICE WECHT

Although I agree that three of the four issues that Petitioner raises do not merit our

review, I would grant allocatur as to his remaining question. In that issue, Petitioner asks:

Whether, in a matter of first impression, the panel erred in finding that the

PCRA[1] court did not have jurisdiction to consider Brown’s timeliness claims

raised within sixty days of discovery following a remand for a hearing on a

separate timeliness claim, which is inconsistent with the plain language of

42 Pa.C.S. § 9545(b)(2), Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000),

Commonwealth v. Porter, 35 A.3d 4 (Pa. 2012), and conflicts with

Commonwealth v. Montgomery, 181 A.3d 359 (Pa. Super. 2018) (en banc)?

Petition for Allowance of Appeal (“PAA”), 472 WAL 2019, at 7 (footnote omitted).

In Commonwealth v. Sepulveda, 144 A.3d 1270 (Pa. 2016), this Court stated “that

a PCRA court does not have discretion to treat new claims raised by a PCRA petitioner

1 Post Conviction Relief Act. 42 Pa.C.S. §§ 9541-46.

as an amended PCRA petition following remand from this Court unless such amendment

is expressly authorized in the remand order.” Id. at 1280 (emphasis added); see also

Commonwealth v. Rivera, 199 A.3d 365, 388-89 (Pa. 2018) (applying Sepulveda and

holding that a PCRA petitioner could not amend his petition upon remand). Petitioner

asserts that, “[t]o the extent Sepulveda and Rivera preclude amendments after a remand,

they did not hold that timeliness based claims and their related derivative merits based

issues cannot be considered as a separate petition and consolidated with the remanded

claim.” PAA at 23-24 (emphasis added).

Petitioner has identified a gap in our PCRA jurisprudence: this Court has not yet

answered the question of whether a PCRA court can consider a new PCRA petition while

another petition is on remand. This issue is an appropriate one for allocatur review, as it

offers this Court an opportunity to provide guidance for PCRA courts confronting similar

circumstances.

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