Com. v. Allison, H.

J-S34040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HOWARD SCOTT ALLISON :
:
Appellant : No. 148 WDA 2019
Appeal from the PCRA Order Entered December 20, 2018
In the Court of Common Pleas of Blair County Criminal Division at No:
CP-07-CR-0001007-2007
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED JULY 30, 2019
Appellant, Howard Scott Allison, appeals pro se from the order denying
Appellant’s petition filed under the Post Conviction Relief Act (PCRA).1 Upon
review of the PCRA court’s docket noting that the “Motion to Withdraw as
Counsel” filed by Paul M. Puskar, Esq. was granted on March 11, 2019, and
there being no indication that a Grazier2 hearing was held, as scheduled on
March 7, 2019, we remand for the PCRA court to inform this Court whether
there was a Grazier hearing held on March 7, 2019. If so, we request the
PCRA court to forward the notes of testimony from that hearing or an Order
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1 42 Pa.C.S. §§ 9541–9546.
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
* Retired Senior Judge assigned to the Superior Court.
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stating the PCRA court’s determination of whether Appellant was permitted to
proceed pro se.3
The facts underlying this appeal are as follows. After a jury trial, on
April 17, 2008, Appellant was found guilty of rape of a person less than 13
years old, statutory sexual assault, and corruption of minors.4 Appellant was
sentenced on November 6, 2008 to an aggregate sentence of twelve and a
half to twenty five years’ incarceration. Appellant filed a direct appeal, and
this Court affirmed his judgment of sentence on June 15, 2010. Appellant did
not file a petition for allowance of appeal with the Supreme Court of
Pennsylvania. Appellant filed a petition pursuant to the PCRA and this Court
affirmed the PCRA court’s order on August 7, 2012. The Supreme Court
denied Appellant’s petition for allowance of appeal. Appellant filed a second
petition pursuant to the PCRA on October 23, 2017, this Court affirmed the
PCRA court’s order on August 9, 2018, and the Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal on February 21, 2019.
Appellant, pro se, filed this current third petition pursuant to the PCRA
on November 26, 2018. Appellant asserts that he is eligible for relief because
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3 We note that there is no letter appointing Paul M. Puskar, Esq. as counsel
for Appellant in the certified record, however, we also note the fact that
Appellant received a letter from Attorney Puskar stating that he was court
appointed to represent Appellant and the certified record contains a scheduling
order for a March 7, 2019 Grazier hearing.
4 18 Pa.C.S. §§ 3121 (c), 3122, 6301, respectively.
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of a violation of the Constitution of this Commonwealth or the constitution or
laws of the United States which, in the circumstances of the particular case,
so undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(i).
Appellant’s judgment of sentence became final on July 15, 2010, thirty days
after this Court affirmed his judgment of sentence.5 Appellant had one year
thereafter to file a PCRA petition, until July 15, 2011. 42 Pa.C.S. § 9545(b)(1).
Appellant filed the current petition on November 26, 2018, over seven years
late. Therefore, Appellant’s petition was patently untimely. Nevertheless,
Appellant attempts to circumvent the time by asserting that the facts upon
which the claims are predicated were unknown to him and could not have
been ascertained by the exercise of due diligence. 42 Pa.C.S. § 9545
(b)(1)(ii); Appellant’s brief at 7-8.
Appellant raises the following issues on appeal:
1. Was the PCRA Court in legal error by claiming that petitioner’s
“new fact” claim under 42 Pa.C.S. § 9545(b)(1)(ii) did not satisfy
the time bar exception requirement to the PCRA’s one year time
bar?
2. Was the PCRA Court in legal error by claiming that the “new fact”
press release statements in question constitute new law?
3. Was the PCRA Court in legal error by not finding the Pennsylvania
Supreme Court ruling in Comm. v. Chmiel, (2017) to be the
controlling case law in determining if petitioner met the “new fact”
time bar exception under 9545(b)(1)(ii)?
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5 Pa.R.A.P. § 1113.
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Appellant’s brief at 5.
Appellant argues that on October 5, 2018 and October 6, 2018, he heard
live statements made on CNN by President Donald Trump, Senate Majority
Leader Mitch McConnell, and Senator Lindsey Graham stating:
“[i]t is unconstitutional, un-American, to convict someone based
on a mere allegation. Our society should not, must not, set the
bar so low as to allow an unsubstantiated allegation to destroy an
American’s life. We must maintain the standard of innocent until
proven guilty. We must hold ourselves to the standard that every
single American deserves.”
Appellant’s brief at 7-8. Appellant claims that his conviction, based on the
testimony of one person, should be overturned as unconstitutional based on
this statement. Appellant relies on Commonwealth v. Chmiel, 173 A.3d
617 (Pa. 2017) and Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018)
in determining that he has met the standard for “newly discovered facts.”
Appellant argues that his “newly discovered facts” claim, arising from press
release statements made on October 5 and 6, 2018, meet the statutory
requirements of 42 Pa.C.S. § 9545(b)(1)(ii), and having filed his PCRA claim
within 60 days of the press release statements, meets the requirement of 42
Pa.C.S. § 9545(b)(2).6
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6 We note that effective December 24, 2018, 42 Pa.C.S. § 9545 (b)(2) was
amended and provides that provides “[a]ny petition invoking an exception
provided in paragraph (1) shall be filed within one year of the date the claim
could have been presented.” 42 Pa.C.S. § 9545 (b)(2). The amendment of
42 Pa.C.S. § 9545 (b)(2) shall apply to claims arising on December 24, 2017
or thereafter.
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On December 12, 2018 Appellant sent a letter to the clerk of court of
Blair County stating that he requested court appointed PCRA counsel Paul M.
Puskar to withdraw from his case. Appellant’s letter states:
Dear Mr. Puskar, thank you for your December 6th letter in which
you informed me that you have been appointed as my PCRA
counsel. . . I requested not to have counsel, as indicated in my
pro se petition. What I need you to do is remove yourself from
my case (withdraw of appearance), notify the court that I “fired”
you and will proceed pro se. . .
Letter from Appellant to Attorney Puskar, 12/12/18. This letter was docketed
on December 19, 2018. On December 20, 2018, the PCRA court issued its
order and opinion denying Appellant’s petition pursuant to the PCRA, but did
not address the status of Appellant’s representation. Appellant filed a pro se
notice of appeal on January 22, 2019.7 The PCRA court’s certified docket notes
that on January 29, 2019, Attorney Puskar filed a “Motion to Withdraw as
Counsel and Request a Grazier Hearing Date.” In his motion, counsel states:
[that he] has been appointed by this Court to represent this
Defendant regarding a PCRA petition filed on November 26, 2018.
. . . This matter is not yet scheduled for a Status Conference or a
hearing on the current petition. . . . [C]ounsel respectfully
requests that this matter be scheduled for Grazier hearing via
video – conference at the earliest convenience of the court.
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7 The PCRA court’s order denying Appellant’s petition pursuant to the PCRA
was dated December 20, 2018, served to Appellant on December 21, 2018
and docketed December 28, 2018. Appellant’s notice of appeal was dated
January 15, 2018 and the envelope is stamped January 17, 2018, therefore,
according to the Prisoner Mailbox Rule, the appeal is timely. See
Commonwealth v. Whitehawk, 146 A.3d 266, 268 n.3 (Pa. Super. 2016)
(“Under the ‘Prisoner Mailbox Rule’ a document is deemed filed when placed
in the hands of prison authorities for mailing.”).
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Counsel’s motion to withdraw at 1-3 (unpaginated). The PCRA court’s certified
docket indicates that a “video conference [hearing is] scheduled 3/7/19.” The
certified record contains an order, filed February 21, 2019, scheduling a
Grazier hearing on March 7, 2019. Counsel’s motion to withdraw was granted
on March 11, 2019. However, there is no indication in the certified record or
the PCRA court’s docket that a Grazier hearing was held.
Accordingly, we remand to the PCRA court for a period of time not to
exceed thirty days to inform this Court whether a Grazier hearing was held
on March 7, 2019. If so, we request the PCRA court to forward the notes of
testimony from that hearing or an Order stating the PCRA court’s
determination of whether Appellant was permitted to proceed pro se.
Jurisdiction retained.
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