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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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.
J-S34040-19


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


____________________________________________


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.


                                           -2-
J-S34040-19


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)?
____________________________________________


5   Pa.R.A.P. § 1113.


                                           -3-
J-S34040-19



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


____________________________________________


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.

                                           -4-
J-S34040-19


       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.
____________________________________________


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.”).


                                           -5-
J-S34040-19



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.




                                    -6-
