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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 28, 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 SEPTEMBER 24, 2019

        Appellant, Howard Scott Allison, pro se, appeals from the order of the

Honorable Elizabeth A. Doyle, dated December 20, 2018, and entered in the

certified record on December 28, 2018, dismissing Appellant’s third petition

filed under the Post Conviction Relief Act (PCRA) without a hearing.1 For the

following reasons, we hold the PCRA court had no jurisdiction to address

Appellant’s petition on the merits.            Accordingly, we affirm but on other

grounds.

        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.2    Appellant was sentenced on November 6, 2008 to an aggregate
____________________________________________


1   42 Pa.C.S. §§ 9541–9546.
2   18 Pa.C.S. §§ 3121 (c), 3122, and 6301, respectively.



*    Retired Senior Judge assigned to the Superior Court.
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sentence of 12½ to 25 years’ incarceration.            On direct appeal, this Court

affirmed his judgment of sentence.             Appellant did not file a petition for

allowance of appeal with the Supreme Court of Pennsylvania. Appellant filed

a timely first petition pursuant to the PCRA in 2011. The PCRA court denied

relief and, on appeal, this Court affirmed the denial of relief. Appellant filed a

petition for allowance of appeal to the Pennsylvania Supreme Court, which

was denied in 2013.

       Appellant filed a second petition pursuant to the PCRA on October 23,

2017, which was denied by the PCRA court. Appellant filed an appeal, and

this Court affirmed the PCRA court’s order on August 9, 2018. On September

6, 2018, Appellant filed a petition for allowance of appeal with the

Pennsylvania Supreme Court. While that appeal was pending, Appellant filed

this third, pro se, PCRA petition on November 26, 2018.             The PCRA court

issued an opinion and order dismissing Appellant’s petition. The PCRA court

dated the opinion and order December 20, 2018, but the opinion and order

were not entered in the certified record and on the certified docket nor mailed

to Appellant until December 28, 2018.3            Appellant filed a timely notice of

appeal.
____________________________________________


3 We note that the PCRA court did not file the proper notice pursuant to
Pa.R.A.P. 907, however, according to Commonwealth v. Zeigler, 148 A.3d
849 (Pa. Super. 2016), where a petition is patently untimely, this is not
reversible error. Additionally, Appellant waived on appeal any defect in notice
provided to him by the postconviction court, as required by the rule governing
disposition of a motion for postconviction collateral relief without a hearing,
where he did not raise the issue on appeal. Id.


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       The Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal in his second PCRA on February 21, 2019.

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)?

Appellant’s brief at 5 (emphasis omitted) (suggested answers omitted).4

       “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)), reargument

denied (July 17, 2019).
____________________________________________


4 On July 30, 2019, this Court issued a memorandum and Order remanding to
the PCRA court with directions to clarify the status of Appellant’s
representation. A review of the certified record revealed a motion to withdraw
as counsel was filed by Attorney Paul Puskar, however there appeared no
letter of appointment. The PCRA court responded on August 12, 2019,
informing this Court that Appellant did not request court appointed counsel
and confirming there is no order appointing counsel to represent Appellant in
the certified record. The PCRA court further determined that Appellant was
not entitled to court appointed counsel in the first place because this was an
untimely third PCRA petition. The PCRA court confirmed that Appellant is
proceeding pro se in the current appeal. We note that Appellant filed a pro se
“Reply to the Order of the Blair County Court, dated 12 August, 2019,” on
August 22, 2019.

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      Before addressing the merits of the appeal, we must first address

whether this Court has jurisdiction to hear this appeal.         “Preliminarily,

Pennsylvania law makes clear the trial court has no jurisdiction to consider a

subsequent PCRA petition while an appeal from the denial of the petitioner’s

prior PCRA petition in the same case is still pending on appeal.”

Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa. Super. 2019) (citations

omitted).   “When an appellant’s PCRA appeal is pending before a court, 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. Lark, 746 A.2d 585, 588 (Pa. 2000).         See also Commonwealth v.

Montgomery, 181 A.3d 359, 364 (Pa. Super.) (en banc), appeal denied, 190

A.3d 1134 (Pa. 2018) (reaffirming that Lark precludes consideration of

subsequent PCRA petition while appeal of prior PCRA petition is still pending.)

      A petitioner must choose either to appeal from the order denying
      his prior PCRA petition or to file a new PCRA petition; the
      petitioner cannot do both, i.e., file an appeal and also file a PCRA
      petition, because “prevailing law requires that the subsequent
      petition must give way to a pending appeal from the order denying
      a prior petition.” Commonwealth v. Zeigler, 148 A.3d 849, 852
      (Pa. Super. 2016).

Beatty, 207 A.3d at 961 (emphasis in original).

      Appellant filed a petition for allowance of appeal to the Pennsylvania

Supreme Court in his second PCRA on September 6, 2018. The record is clear

that Appellant’s second PCRA appeal was still pending before our Supreme



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Court at the time he filed the present PCRA petition on November 26, 2018.

Additionally, Appellant’s second PCRA appeal was still pending before our

Supreme Court at the time the PCRA court entered its order in this present

appeal on December 28, 2018.        The Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal in his second PCRA on February

21, 2019. The law is well established that the pendency of the second PCRA

appeal precluded the PCRA court from establishing any jurisdiction over the

subsequent petition for PCRA relief.    Lark, 746 A.2d at 588.      As soon as

Appellant decided to exhaust the appeal from the denial of his second PCRA

petition, the PCRA court was required to dismiss any serial PCRA petition that

Appellant filed during the pendency of the appeal. See Beatty, 207 A.3d at

963. The court should have dismissed this third petition outright under Lark,

when Appellant initially filed it during the appeal from the denial of his prior

PCRA petition.   Id. at 964.   Accordingly, we affirm the denial of relief on

Appellant’s current petition, albeit on other grounds.     See Id.; See also

Commonwealth v. Reese, 31 A.3d 708, 727 (Pa. Super. 2011) (en banc)

(stating appellate court may affirm on any basis as long as the ultimate

decision is correct).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2019




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