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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ANDREW JOSEPH ALLAM, SR.
Appellant No. 2394 EDA 2018
Appeal from the Order Dated August 6, 2018
In the Court of Common Pleas of Pike County
Criminal Division at No.: CP-52-CR-0000469-2009
BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED MAY 23, 2019
Appellant Andrew Joseph Allam, Sr. pro se appeals from the August 6,
2018 order entered in the Court of Common Pleas of Pike County (“PCRA
court”), which denied his request for collateral relief under the Post Conviction
Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The facts and procedural history of this case are undisputed.1 Between
May 1, 2007 and August 21, 2009, Appellant had a sexual relationship with
KS, a minor daughter of Appellant’s paramour at the time. Both the paramour
and KS lived with Appellant throughout the time of these offenses. KS, who
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* Retired Senior Judge assigned to the Superior Court.
1 Unless otherwise noted, these facts are taken from this Court’s March 7,
2014 memorandum affirming the denial of Appellant’s first PCRA petition. See
Commonwealth v. Allam, No. 959 EDA 2013, unpublished memorandum,
at 1-2 (Pa. Super. filed March 7, 2014) (citing PCRA Court Opinion, 4/3/13, at
1-2), appeal denied, 99 A.3d 75 (Pa. 2014).
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was born in 1995, was between twelve (12) and fourteen (14) years old during
this period. KS became pregnant with Appellant’s child and gave birth in her
residence. Upon arriving at the hospital, the state police were called.
Following statements by KS to the police that Appellant had impregnated her,
a further investigation revealed multiple sexual encounters occurred between
Appellant and KS. The Commonwealth then filed the appropriate charges.
A jury trial was eventually held over a two-day period, commencing on
November 18, 2010. The jury convicted Appellant of three counts of Rape of
a Child, twenty counts of Involuntary Deviate Sexual Intercourse, seventeen
counts of Statutory Sexual Assault, fifteen counts of Indecent Assault, and
one count of Corruption of Minors.
On February 11, 2011, Appellant was sentenced to a term of forty to
eighty years of incarceration, and Appellant was ordered to register with the
state police as a sex offender pursuant to Megan’s Law, 42 Pa.C.S.A. §§
9795.1 et seq. Post-sentence motions were filed and denied, and on March
22, 2011, Appellant filed a timely notice of appeal. In a memorandum filed
on December 2, 2011, this Court affirmed Appellant’s judgment of sentence.
See Commonwealth v. Allam, 40 A.3d 182 (Pa. Super. filed December 2,
2011) (unpublished memorandum). Our Supreme Court denied Appellant’s
petition for allowance of appeal on August 7, 2012. See Commonwealth v.
Allam, 50 A.3d 124 (Pa. 2012).
On August 27, 2012, Appellant filed a timely PCRA petition, and the
PCRA court appointed counsel. On December 6, 2012, counsel filed a motion
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to withdraw and no-merit letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc). On December 12, 2012, the PCRA court granted
counsel’s motion to withdraw, informed Appellant of its intent to dismiss his
PCRA petition within twenty days pursuant to Pa.R.Crim.P. 907, and directed
Appellant that he had twenty days in which to respond. When the PCRA court
received no response from Appellant, it entered an order on January 7, 2013,
dismissing his PCRA petition. Appellant appealed to this Court, raising thirty
assertions of error. In deciding the appeal, we observed that Appellant’s
“statement of the issues presented is merely a rambling attack on multiple
facets of the trial court’s proceedings” and “that nearly all of Appellant’s issues
presented were previously litigated in his direct appeal, were waived, or they
are not cognizable claims under the PCRA.” Allam, No. 959 EDA 2013,
unpublished memorandum, at 6. Ultimately, on March 7, 2014, we affirmed
the trial court’s denial of Appellant’s PCRA petition, concluding, inter alia, that
Appellant’s ineffectiveness claims, his only viable issues on appeal, lacked
merit. On September 3, 2014, our Supreme Court denied Appellant’s petition
for allowance of appeal. See Commonwealth v. Allam, 99 A.3d 75 (Pa.
2014).
On August 10, 2016, Appellant pro se filed a “Petition to Correct Illegal
Sentence,” asserting that his sentence was illegal under Alleyne v. United
States, 570 U.S. 99 (2013) and Commonwealth v. Newman, 99 A.3d 86
(Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015).
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Treating the pro se filing as Appellant’s second PCRA petition, the PCRA court,
on September 23, 2016, issued a Rule 907 notice of its intention to dismiss.
On October 13, 2016, Appellant filed his response to the proposed dismissal.
Thereafter, Appellant submitted a number of pro se filings. On April 6, 2017,
Appellant filed a “Motion to Compel Status of Intent to Dismiss PCRA.”
During the pendency of his second PCRA petition, Appellant pro se filed
his third PCRA petition on September 14, 2017, raising a claim under
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).2 On November 1,
2017, Appellant pro se filed a “Motion for Video Conference.”3 On January 10,
2018, Appellant filed a “Motion to Dismiss Charges for Violation of Pa. Crim.
Rule 1100/600,” requesting that the PCRA court permit him to amend the third
PCRA petition to include a Rule 600 claim. On February 1, 2018, Appellant
filed a “Petition to Amend Petitioner’s Claim of Challenges to Legality of His
Sentence to His Current PCRA Petition.”
On February 6, 2018, the Commonwealth filed a “Motion to Dismiss
PCRA Without Further Proceedings,” asserting that Appellant’s filings were
untimely under the PCRA. On March 2, 2018, Appellant filed a response to
the Commonwealth’s motion. On March 8, 2018, Appellant filed a “Petition to
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2In Muniz, our Supreme Court held that SORNA’s registration provisions are
punitive, and retroactive application of SORNA’s provisions violates the federal
ex post facto clause, as well as the ex post facto clause of the Pennsylvania
Constitution.
3The PCRA court granted Appellant’s motion for video conference on February
2, 2018.
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Dismiss Criminal Action No. 469-2009 the Criminal Case Is Barred by the
Doctrine of Collateral Estoppel And the Doctrine of Res Judicata.”
Following a hearing on April 17, 2018, the PCRA court denied Appellant’s
filings in their entirety and granted the Commonwealth’s motion to dismiss.
Appellant appealed to this Court.
While his appeal was pending, Appellant on June 8, 2018 filed a “Motion
to Unmerge Offenses,” which the PCRA court denied on June 11, 2018.
Appellant appealed to this Court.
While his previous appeals were pending in this Court, Appellant filed
the instant, his fifth, PCRA petition on July 5, 2018, raising ineffectiveness
claims. On July 9, 2018, the PCRA court issued a Rule 907 notice of its
intention to dismiss the petition. Following Appellant’s response, the PCRA
court issued an order denying Appellant’s petition on August 6, 2018.
Appellant appealed.
On appeal,4 Appellant challenges only the denial of his latest PCRA
petition. We, however, need not address the substance of his appeal. Based
on our Supreme Court’s holding in Commonwealth v. Lark, 746 A.2d 585
(Pa. 2000), we conclude that the PCRA court did not err in dismissing
Appellant’s July 5, 2018 petition.
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4“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
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In Lark, our Supreme Court held that while a “PCRA appeal is pending,
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.” Lark, 746 A.2d
at 588. In Commonwealth v. Montgomery, 181 A.3d 359 (Pa. Super.
2018) (en banc), we reaffirmed that Lark “precludes consideration of a
subsequent petition from the time a PCRA order is appealed until no further
review of that order is possible.” Montgomery, 181 A.3d at 364.
Here, because Appellant’s appeal from the dismissal of his previous
PCRA petitions still was pending in this Court at the time he filed the instant
PCRA petition, the PCRA court lacked jurisdiction under Lark to entertain the
instant petition. Accordingly, we affirm the PCRA court’s order dismissing
Appellant’s PCRA petition sub judice albeit on a different ground, i.e., under
Lark. 5
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/19
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5We may affirm on any grounds supported by the record. Commonwealth
v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012) (“This Court may affirm a
PCRA court’s decision on any grounds if the record supports it.”).
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