Com. v. Allam, A. ( 2021 )

J-S13024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANDREW J. ALLAM, SR. :
:
Appellant : No. 1338 EDA 2020
Appeal from the Order Entered July 2, 2020
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000469-2009
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED JUNE 22, 2021
Appellant, Andrew J. Allam, Sr., appeals pro se from the order entered
in the Pike County Court of Common Pleas, which denied his serial petition
brought pursuant to the Post-Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows:
On February 11, 2011, following Appellant’s conviction of
three (3) counts of Rape of a Child, twenty (20) counts of
Involuntary Deviate Sexual Intercourse, seventeen (17)
counts of Statutory Sexual Assault, fifteen (15) counts of
Indecent Assault, and [one (1) count] of Corruption of a
Minor, this [c]ourt sentenced him to forty (40) to eighty (80)
years of incarceration in a State Correctional Facility. On
March 22, 2011, Appellant appealed his sentence to the
Pennsylvania Superior Court, which affirmed this [c]ourt’s
Order [on December 2, 2011]. On August 7, 2012, the
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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Supreme Court of Pennsylvania (“SCOPA”) denied
Appellant’s Petition for Allowance of Appeal.
[Appellant timely filed pro se his first PCRA petition on
August 27, 2012, which the PCRA court denied on January
7, 2013. This Court affirmed, and our Supreme Court
denied allowance of appeal. Appellant subsequently
litigated several additional PCRA petitions and various pro
se filings, all of which were ultimately unsuccessful.]
On July 1, 2020, following seriatim filings, Orders, and
appeals, …Appellant filed [the instant] Petition to Correct
Second Sentence that is Violating Double Jeopardy Clause
(“Petition”), alleging that since he is now serving his second
of three consecutive sentences for Rape of a Child, his Fifth
Amendment right against double jeopardy is being violated
and requesting a corrected sentence. On July 2, 2020, we
issued an Order denying [Appellant’s] request, as serving
the second of three (3) convictions for the same crime was
not a violation of double jeopardy, but the result
of…Appellant’s conviction for committing the same crime on
three (3) separate occasions. On July 13, 2020, again
unhappy with one of our determinations, …Appellant filed a
Notice of Appeal to the Superior Court, challenging the July
2, 2020 Order. On July 27, 2020, …Appellant filed a timely
Concise Statement of Matters Complained of on Appeal
(“Concise Statement”)….
(PCRA Court Opinion, filed August 21, 2020, at 1-2).
Appellant raises two issues on appeal:
Appellant’s [s]econd [c]onsecutive [s]entence [c]onstitutes
double jeopardy he is now being punished twice for the
same Act/offense in violation of the [F]ifth [A]mendment
right to be free from double jeopardy[.]
The trial judge (Chelak) had made fraudulent statements
that Appellant was sentenced to (3) [c]onsecutive
[s]entence[s] for [c]omitting rape on (3) three separate
occasions between May 2007 and August 2009, [a]nd the
Appellant received (1) one punishment for each of the (3)
three [s]eparate [a]cts, the record is devoid of any evidence
to support those fraudulent statements by (Chelak) his
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statement [c]onstitutes “fabricated facts.”
(Appellant’s Brief at 8).
Preliminarily, any petition for post-conviction collateral relief generally
is considered a PCRA petition, regardless of how an appellant captions the
petition, if the petition raises issues for which the relief sought is the kind
available under the PCRA. Commonwealth v. Peterkin, 554 Pa. 547, 722
A.2d 638 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole means of
obtaining collateral relief and encompasses all other common law and
statutory remedies for same purpose). As well, the timeliness of a PCRA
petition is a jurisdictional requisite. Commonwealth v. Hackett, 598 Pa.
350, 359, 956 A.2d 978, 983 (2008), cert. denied, 556 U.S. 1285, 129 S.Ct.
2772, 174 L.Ed.2d 277 (2009). Even where the PCRA court does not address
the applicability of the PCRA timing mandate, “this Court will consider the
issue sua sponte, as it is a threshold question implicating our subject matter
jurisdiction.” Commonwealth v. Reid, ___ Pa. ___, ___, 235 A.3d 1124,
1140 n.8 (2020). A PCRA petition, including a second or subsequent petition,
shall be filed within one year of the date the underlying judgment becomes
final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
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allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition
must allege and the petitioner must prove:
(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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Additionally, a PCRA petitioner must
present his claimed exception within the requisite statutory window. 42
Pa.C.S.A. § 9545(b)(2).
The timeliness exception set forth in Section 9545(b)(1)(ii) requires a
petitioner to demonstrate he did not know the facts upon which he based his
petition and could not have learned those facts earlier by the exercise of due
diligence. Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
1271 (2007). Due diligence demands that the petitioner take reasonable
steps to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164,
1168 (Pa.Super. 2001). A petitioner must explain why he could not have
learned the new fact(s) earlier with the exercise of due diligence.
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Commonwealth v. Breakiron, 566 Pa. 323, 330-31, 781 A.2d 94, 98
(2001); Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super 2010),
appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011). This rule is strictly
enforced. Id. Additionally, the focus of this exception “is on the newly
discovered facts, not on a newly discovered or newly willing source for
previously known facts.” Commonwealth v. Marshall, 596 Pa. 587, 596,
947 A.2d 714, 720 (2008) (emphasis in original). In other words, the “new
facts” exception at:
[S]ubsection (b)(1)(ii) has two components, which must be
alleged and proved. Namely, the petitioner must establish
that: 1) the facts upon which the claim was predicated were
unknown and 2) could not have been ascertained by the
exercise of due diligence. If the petitioner alleges and
proves these two components, then the PCRA court has
jurisdiction over the claim under this subsection.
Bennett, supra at 395, 930 A.2d at 1272 (internal citations omitted)
(emphasis in original).
Instantly, Appellant’s current filing raises claims challenging the legality
of his sentence. These claims are cognizable under the PCRA.
Commonwealth v. Concordia, 97 A.3d 366 (Pa.Super. 2014), appeal
denied, 633 Pa. 753, 125 A.3d 775 (2015) (stating challenge to legality of
sentence is cognizable under PCRA). Thus, the court should have treated
Appellant’s current filing as a serial PCRA petition and analyzed it under 42
Pa.C.S.A. §§ 9541-9546. See Peterkin, supra.Here, the court sentenced Appellant on February 11, 2011. This Court
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affirmed the judgment of sentence on December 2, 2011, and our Supreme
Court denied allowance of appeal on August 7, 2012. Consequently,
Appellant’s judgment of sentence became final on November 5, 2012, upon
expiration of the 90-day period to file a petition for writ of certiorari with the
United States Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the
current petition on July 1, 2020, which is facially untimely.
Appellant now attempts to invoke the “newly-discovered facts”
exception to the PCRA time-bar. Specifically, Appellant argues he is “being
punished twice for the same offense in violation of the Fifth Amendment…,”
where he is serving the second of three consecutive sentences for Rape of a
Child, and the charges for each offense/conviction were “not differentiated in
anyway.” (Appellant’s Petition, filed 7/1/20, at 1). Appellant maintains his
claim falls under the “newly-discovered facts” exception because
“[P]etitioner’s claim could not have been ascertained by due diligence, the
date of November 24, 2019 had to occur first and before he could raise the
claim of double jeopardy because his first minimum sentence ran from 11-24-
09 through 11-24-19 thereby completing his first 10 year minimum sentence
on 11-24-19 not before.” (Id. at 2).
Appellant, however, has failed to raise a “newly-discovered fact,” where
he has been aware of the sentence he received since February 11, 2011. Since
that day, Appellant has known that his sentence included three consecutive
10-to-20-year terms of imprisonment for three counts of Rape of a Child.
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Appellant cannot now claim that the multiple terms of imprisonment for
multiple counts of the same crime were “unknown facts” simply because he
completed serving ten years of his first term. Accordingly, as Appellant failed
to establish the requirements of Section 9545(b)(1)(ii), his petition remains
time-barred and we affirm the order dismissing it, albeit on other grounds.
See Commonwealth v. Reese, 31 A.3d 708, 727 (Pa.Super. 2011) (en
banc) (stating appellate court may affirm on any basis as long as ultimate
decision is correct).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2021
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