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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1322 EDA 2018
Appeal from the Order Dated April 17, 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 April 17,
2018 order entered in the Court of Common Pleas of Pike County (“PCRA
court”), which dismissed as untimely his serial petitions 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
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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Commonwealth v. Allam, No. 959 EDA 2013, unpublished memorandum,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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and KS lived with Appellant throughout the time of these offenses. KS, who
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).
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On August 27, 2012, Appellant filed a timely PCRA petition, and the
PCRA court appointed counsel. On December 6, 2012, counsel filed a motion
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
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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).
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
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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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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
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.4
Appellant pro se timely appealed to this Court. The PCRA court directed
Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. Appellant complied, raising two assertions of error. In response, the
PCRA court issued a Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant presents two issues for our review:
[I.] The PCRA court erred in dismissing Appellant’s (Muniz) PCRA,
as failing to meet any of the exceptions under [Section] 9545(b)[.]
[II.] The PCRA court erred in dismissing Appellant’s motion to
dismiss for violation of [R]ule 600, motion to amend claim of
challenges to legality of sentence to current PCRA, and motion to
dismiss criminal action 469-2009 based upon collateral estoppel.
Appellant’s Brief at ii.5
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4 In Commonwealth v. Montgomery, 181 A.3d 359 (Pa. Super. 2018) (en
banc), we held that PCRA courts are not jurisdictionally barred from
considering serial PCRA petitions, provided that there is not a pending appeal
of a PCRA petition and that PCRA courts are permitted to dispose of several
PCRA petitions in one overarching order. Montgomery, 181 A.3d at 367
(“PCRA courts have jurisdiction to consider multiple PCRA petitions relating to
the same judgment of sentence at the same time so long as a prior petition is
not under appellate review and, therefore, not yet final.”).
5 Appellant seemingly abandons his second issue on appeal because he has
failed to include it in the argument section of his brief, much less develop it in
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This Court’s standard of review regarding an order dismissing a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). We will not disturb the PCRA
court’s findings unless there is no support for the findings in the certified
record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Before we may address the merits of this appeal, we must determine
whether the PCRA court had jurisdiction to entertain the underlying PCRA
petition. The PCRA contains the following restrictions governing the timeliness
of any PCRA petition.
(b) Time for filing petition.--
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any coherent fashion. As a result, the second issue is abandoned, as we
cannot meaningfully review it. See Pa.R.A.P. 2119(a) (stating that the
argument section of the parties’ briefs “shall be divided into as many parts as
there are questions to be argued; and shall have at the head of each part—in
distinctive type or in type distinctly displayed—the particular point treated
therein, followed by such discussion and citation of authorities as are deemed
pertinent.”); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009),
(“[W]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”) (citation
omitted), cert. denied, 562 U.S. 906 (2010); see also Commonwealth v.
Murchinson, 899 A.2d 1159, 1160 (Pa. Super. 2006) (deeming appellant’s
claims waived under Pa.R.A.P. 2119(a) because he did not develop meaningful
argument with specific references to relevant case law and to the record to
support his claims); Commonwealth v. Heilman, 867 A.2d 542, 546 (Pa.
Super. 2005) (recognizing that failure to provide “such discussion and citation
of authorities as are deemed pertinent” may result in waiver);
Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa. Super. 2004) (declining
to review appellant’s claim where there was limited explanation and
development of the argument).
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(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(i) the failure to raise the claim previously was the
result of interference by government officials with the
presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the
Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States
or the Supreme Court of Pennsylvania after the time
period provided in this section and has been held by
that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have been
presented.
(3) For purposes of this subchapter, a judgment becomes final at
the conclusion of direct review, including discretionary review in
the Supreme Court of the United States and the Supreme Court
of Pennsylvania, or at the expiration of time for seeking the
review.
42 Pa.C.S.A. § 9545(b). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, we have emphasized repeatedly that “the PCRA confers no
authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
time-bar in addition to those exceptions expressly delineated in the Act.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
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Here, the record reflects Appellant’s judgment of sentence became final
on November 5, 2012. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a);
Sup. Ct. R. 13. Because Appellant had one year from November 5, 2012, to
file his PCRA petition, the current filing raising the Muniz issue is facially
untimely given it was filed on September 14, 2017.
The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant invokes the time-bar
exception of Section 9545(b)(1)(iii) of the PCRA in arguing, without citing any
legal authority, that that our Supreme Court’s decision in Muniz created a
new substantive right that applies retroactively. Our Supreme Court has set
forth a two-part test to determine the applicability of Section 9545(b)(1)(iii) to
a new decision:
Subsection (iii) of Section 9545 has two requirements. First, it
provides that the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or this
[C]ourt after the time provided in this section. Second, it provides
that the right “has been held” by “that court” to apply
retroactively. Thus, a petitioner must prove that there is a “new”
constitutional right and that the right “has been held” by that court
to apply retroactively. The language “has been held” is in the past
tense. These words mean that the action has already occurred,
i.e., “that court” has already held the new constitutional right to
be retroactive to cases on collateral review. By employing the
past tense in writing this provision, the legislature clearly intended
that the right was already recognized at the time the petition was
filed.
Commonwealth v. Abdul–Salaam, 571 Pa. 219, 812 A.2d 497, 501 (2002).
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We recently addressed a similar claim under Section 9545(b)(1)(iii) in
Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018). In Murphy,
we explained:
that this Court has declared that, “Muniz created a substantive
rule that retroactively applies in the collateral context.”
Commonwealth v. Rivera–Figueroa, 174 A.3d 674, 678 (Pa.
Super. 2017). However, because [the a]ppellant’s PCRA petition
is untimely (unlike the petition at issue in Rivera–Figueroa), he
must demonstrate that the Pennsylvania Supreme Court has
held that Muniz applies retroactively in order to satisfy [S]ection
9545(b)(1)(iii). Because at this time, no such holding has been
issued by our Supreme Court, Appellant cannot rely on Muniz to
meet that timeliness exception.
Murphy, 180 A.3d at 405-06 (emphasis in original) (citations omitted).
Consistent with Murphy, Appellant obtains no relief sub judice because, to
date, our Supreme Court has not held Muniz to apply retroactively to meet
the Section 9545(b)(1)(iii) exception. Accordingly, we affirm the PCRA court’s
order, as Appellant’s petition is untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/19
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