Com. v. Allison, H.

J-S30037-20

2020 PA Super 168

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

HOWARD SCOTT ALLISON :

:

Appellant : No. 17 WDA 2020

Appeal from the PCRA Order Entered December 3, 2019

In the Court of Common Pleas of Blair County Criminal Division at No(s):

CP-07-CR-0001007-2007

BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED JULY 10, 2020

Appellant, Howard Scott Allison, appeals pro se from the December 3,

2019, order entered in the Court of Common Pleas of Blair County, which

dismissed Appellant’s petition filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, without an evidentiary hearing, on the

basis it was untimely filed. After a careful review, we affirm.

The relevant facts and procedural history are as follows: After a jury

trial, Appellant was convicted of rape of a person less than 13 years old,

statutory sexual assault, and corruption of minors. He was sentenced to an

aggregate of 12½ to 25 years in prison, and he filed a timely direct appeal to

this Court. On June 15, 2010, a panel of this Court affirmed his judgment of

sentence. See Commonwealth v. Allison, 4 A.3d 689 (Pa.Super. 2010)

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* Former Justice specially assigned to the Superior Court.

J-S30037-20

(unpublished memorandum). Appellant did not file a petition for allowance of

appeal with our Supreme Court.

On February 25, 2011, Appellant filed a timely pro se PCRA petition, and

counsel was appointed. After the PCRA court denied the petition, Appellant

appealed, and this Court affirmed the PCRA court’s order. See

Commonwealth v. Allison, 60 A.3d 561 (Pa.Super. 2012) (unpublished

memorandum). Appellant filed a petition for allowance of appeal, which our

Supreme Court denied on January 9, 2013.

On October 23, 2017, Appellant filed a second PCRA petition, and the

PCRA court denied relief on the basis the petition was untimely filed. On

appeal, this Court affirmed. See Commonwealth v. Allison, 195 A.3d 986

(Pa.Super. 2018) (unpublished memorandum). Appellant filed a petition for

allowance of appeal with our Supreme Court.

While that petition for allowance of appeal was pending, Appellant filed

his third PCRA petition on November 26, 2018. The PCRA court entered an

order on December 28, 2018, dismissing the petition, and Appellant appealed

to this Court. Thereafter, on February 21, 2019, our Supreme Court denied

Appellant’s petition for allowance of appeal with regard to his second PCRA

petition. As to Appellant’s third PCRA petition, we affirmed the PCRA court’s

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dismissal of the petition on September 24, 2019.1 See Commonwealth v.

Allison, 221 A.3d 1286 (Pa.Super. 2019) (unpublished memorandum).

Appellant did not file a petition for allowance of appeal with our Supreme

Court.

On September 28, 2019,2 Appellant filed a fourth pro se PCRA petition;

however, the PCRA court dismissed the petition and informed Appellant he

could file a petition after the expiration of the time for Appellant to file a

petition for allowance of appeal with regard to this third PCRA petition. See

Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 588 (2000) (“[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.”); Commonwealth

v. Montgomery, 181 A.3d 359 (Pa.Super. 2018) (en banc) (holding that a

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1 Specifically, this Court held that Appellant’s third PCRA petition, which was

filed during the pendency of his second PCRA appeal, precluded the PCRA

court from exercising jurisdiction over the third petition. Accordingly, we

affirmed the PCRA court’s dismissal of the third PCRA petition on this basis.

2 Although Appellant’s pro se petition was docketed in the lower court on

October 2, 2019, we shall deem it to have been filed on September 28, 2019,

when it was handed to prison authorities. See Pa.R.A.P. 121(a) (“A pro se

filing submitted by a prisoner incarcerated in a correctional facility is deemed

filed as of the date it is delivered to prison authorities for purposes of mailing

or placed in the institutional mailbox[.]”).

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PCRA court is precluded from considering a subsequent petition from the time

a PCRA order is appealed until no further review of that order is possible).

On October 29, 2019,3 Appellant filed the instant pro se PCRA petition,

and the PCRA court provided Appellant with notice of its intent to dismiss the

petition. Appellant filed a pro se objection, and on December 3, 2019, the

PCRA court dismissed Appellant’s PCRA petition without an evidentiary

hearing. This timely pro se appeal followed, and all Pa.R.A.P. 1925

requirements have been met.

On appeal, Appellant sets forth the following issues in his “Statement of

Questions Involved” (verbatim):

I. Was the PCRA Court in error for not finding that live press

statements made by United States President Donald J.

Trump, U.S. Senate Majority Leader Mitch McConnell, and

Senator Lindsey Graham, regarding uncorroborated sexual

assault allegations made against U.S. Supreme Court

nominee Brett Kavanaugh by Christine Blaise Ford, satisfied

the “new fact” PCRA time bar exception of 42 Pa.C.S. §

9545(b)(1)(ii)?

II. Was the PCRA court in error by claiming the petition is

“patently frivolous and without support in the record,”

where, as a “genuine issue of fact,” the state court record

does prove that this Petitioner is, in fact, innocent?

Appellant’s Brief at 5 (suggested answers and italics omitted).

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3 Although Appellant’s pro se petition was docketed in the lower court on

October 31, 2019, we shall deem it to have been filed on October 29, 2019,

when it was handed to prison authorities. See Pa.R.A.P. 121(a).

We note Appellant’s September 28, 2019, and October 29, 2019, pro se

PCRA petitions are identical.

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Preliminarily, we note our well-established standard of review:

This Court’s standard of review regarding an order denying 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. The PCRA court’s findings will not be disturbed unless there

is no support for the findings in the certified record.

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007) (citations

omitted).

Pennsylvania law makes clear no court has jurisdiction to

hear an untimely PCRA petition. The most recent amendments to

the PCRA, effective January 16, 1996, provide 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).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010)

(citations omitted).

[There are] three statutory exceptions to the timeliness

provisions in the PCRA [that] allow for the 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

petitioner must allege and 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.

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Id. at 1079-80 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)).

Any petition invoking a timeliness exception must be filed within one

year of the date the claim could have been presented.4 42 Pa.C.S.A. §

9545(b)(2). “We emphasize that it is the petitioner who bears the burden to

allege and prove that one of the timeliness exceptions applies.”

Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008)

(citation omitted).

In the case sub judice, Appellant was sentenced on November 6, 2008,

and this Court affirmed his judgment of sentence on June 15, 2010. Appellant

did not file a petition for allowance of appeal with our Supreme Court.

Accordingly, his judgment of sentence became final on July 15, 2010, when

the thirty-day time period for filing a petition for allowance of appeal with our

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113.

Appellant had one year from that date, or until July 15, 2011, to file a timely

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4 42 Pa.C.S.A. § 9545(b)(2) previously provided that a petition invoking a

timeliness exception was required to be filed within sixty days of the date the

claim could first have been presented. However, effective December 24,

2018, the legislature amended Subsection 9545(b)(2) to read: “Any petition

invoking an exception provided in paragraph (1) shall be filed within one year

of the date the claim could have been presented.” See 42 Pa.C.S.A. §

9545(b)(2) (effective December 24, 2018). The amendment to Subsection

9545(b)(2) only applies to “claims arising on [December] 24, 2017, or

thereafter.” See id., cmt. Appellant filed the instant PCRA petition in October

of 2019, averring that his claims relate to statements made on CNN News on

October 5 and 6, 2018, and, thus, we conclude the amended Subsection

9545(b)(2) applies.

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PCRA petition. See 42 Pa.C.S.A. § 9545(b). Accordingly, the instant PCRA

petition it is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).

This does not end our inquiry, however, as Appellant contends that he

is entitled to the “newly-discovered facts” exception as delineated by Section

9545(b)(1)(ii). The “newly-discovered facts” exception requires a petitioner

to plead and prove that “1) the facts upon which the claim was predicted were

unknown and 2) could not have been ascertained by the exercise of due

diligence.” Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1272

(2007) (quotation marks and quotation omitted).

In the case sub judice, Appellant contends he has “new facts” in the

form of verbal statements made live by elected public officials on CNN News.

Specifically, he claims the following:

[Appellant] claims as a new fact that during a live CNN

broadcast (press release), made on October 5 th and 6th of 2018,

United States President Donald Trump, United States Senator

Majority Leader Mitch McConnell, and United States Senator

Lindsey Graham all made public statements declaring that it was

both unconstitutional and un-American to convict someone based

on a mere allegation, with no supporting evidence and no

corroborating third party.

“Our society should not, must not, set the bar

so low as to allow an unsubstantiated allegation

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[.]”—Senator Mitch McConnell

These statements were in response to the allegations of

sexual assault brought by Christine Ford against Judge Brett

Kavanaugh.

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These statements were affirmed by a majority vote of the

United States Senate on Saturday, October 6th, 2018, confirming

Judge Brett Kavanaugh to the United States Supreme Court.

Appellant’s PCRA Petition, filed 10/29/19, Attachment to Page 3 (italics in

original).

In the case sub judice, assuming, arguendo, Appellant met the initial

one year threshold, we agree with the PCRA court that Appellant has failed to

demonstrate he is entitled to the timeliness exception provided for in

Subsection 9454(b)(1)(ii). Aside from his unsubstantiated bald assertions,

Appellant has failed to offer any evidence in support of his claims. Although

Appellant sets forth a specific statement allegedly made by United States

Senator McConnell, he has proffered no evidence that the Senator, in fact,

made such a statement. Further, Appellant has not set forth any specific

statements allegedly made by United States President Trump or United States

Senator Graham. Appellant’s bald assertion of vague statements he allegedly

heard elected public officials make during a live television news program falls

short of pleading and proving an exception to the PCRA’s timing

requirements.5 Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714,

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5 In support of his claim that he has met Subsection 9545(b)(1)(ii)’s

requirements, Appellant relies on Commonwealth v. Chmiel, 643 A.2d 216,

173 A.3d 617 (2017). In Chmiel, our Supreme Court held that an FBI press

release admitting errors in a high percentage of cases involving FBI testimony

on microscopic hair analysis could qualify as a “newly-discovered fact” for

purposes of Subsection 9545(b)(1)(ii). However, unlike in Chmiel, in the

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721 (2008) (holding a petitioner does not meet his burden of proving time-

bar exception where he offers only general allegations, unsupported by

evidence); Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581, 588 (1999)

(holding “vague and unsupported” allegations inadequate to establish time-

bar exception); Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001

(holding the petitioner must plead and prove specific facts to invoke the

timeliness exceptions).

In his second claim, Appellant contends the PCRA court erred in

dismissing his petition without an evidentiary hearing.

It is well-settled that “[t]here is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008).

In the case sub judice, the PCRA court properly concluded that Appellant did

not raise a genuine issue of material fact, and there is no legitimate purpose

that would be served by further proceedings. Accordingly, the PCRA court did

not abuse its discretion in failing to hold a hearing. See id.

For all of the foregoing reasons, we conclude Appellant has not met any

of the timeliness exceptions, particularly the exception set forth in Subsection

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case sub judice, aside from bald and vague assertions of verbal statements

allegedly made on television, Appellant has proffered no evidence supporting

his claim of a “newly-discovered fact.”

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9545(b)(1)(ii). Therefore, we conclude the PCRA court properly dismissed

Appellant’s instant PCRA petition on the basis it was untimely filed.6

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2020

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6 To the extent Appellant contends the PCRA’s timeliness requirements do not

apply to him because he has asserted his innocence, we note this Court has

rejected such a claim. See Commonwealth v. Brown, 143 A.3d 418

(Pa.Super. 2016).

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