Lark was convicted of first-degree murder and sentenced to death. The state Supreme Court affirmed the sentence on direct appeal, and his first petition for collateral review pursuant Post-Conviction Relief Act was dismissed by the trial court on Sept. 12, 1995.
In April 1997, while that first petition was pending, the Philadelphia District Attorney’s Office released the McMahon tape. Lark filed an application for remand to allow the trial court to consider post-conviction claims arising from the tape’s release in July of that same year.
Lark argued that because the tape showed McMahon training district attorneys to exclude potential jurors on the foundation of race and gender bias, it displayed a “policy” of jury selection in violation of Batson.
The high court affirmed the denial of Lark’s petition for PCRA relief on July 23, 1997. Lark filed his second PCRA petition, the one at issue in the present decision, on Aug. 29, 1997, and on Jan. 9, 1998, he filed an amended post-conviction petition.
The trial court dismissed the second petition, finding that it had not been timely filed, and Lark appealed.
Cappy explained that the PCRA was amended in 1996 to require all petitions for post-conviction relief to be filed within one year from the date when the judgment became final, unless one of three exceptions apply. A defendant who invokes one of the exceptions has 60 days from the date the claim could have been presented to file his or her claim.
Lark’s time limit to file for discretionary review with the high court expired 90 days after his judgement became final on May 20, 1988, Cappy said.
But Lark maintained his claim fit into the exception to the PCRA that allows an extension of the filing of claims when “facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence.”
Despite the existence of that exception, Lark complained that the act does not explain what a defendant is to do when an appeal of a prior PCRA petition is currently pending. He questioned whether trial courts have jurisdiction to decide on a subsequent petition in that situation.
Because the McMahon tape was not made public until 1997, Cappy said, the court agreed with Lark’s position that his case fit within the exception and that his second PCRA petition was timely filed since it was filed within 60 days after the high court denied his first petition for relief.
“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,” Cappy wrote.
“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 60 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.’”
Keeping a List
In a separate concurring opinion, Justice Russell Nigro commented on the trial court’s refusal to allow defense counsel to make a record of the race of the potential jurors for his Batson claim.
The trial court judge would not allow the list, believing that “there is no way to determine a person’s race or color.”
Nigro said an attorney should always be allowed to maintain such a list.
“In my view, defense counsel’s request was clearly reasonable in light of this court’s general requirement that a defendant seeking to establish a cognizable claim on appeal must make a record specifically identifying the race of all venirepersons stricken by the prosecution, the race of the jurors acceptable to the prosecution who were stricken by the defense and the racial composition of the final jury selected,” Nigro said.
