J-S10019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    ANDREW JOSEPH ALLAM, SR.

                             Appellant                No. 1798 EDA 2018


                   Appeal from the Order Dated June 11, 2018
                  In the Court of Common Pleas of Pike County
               Criminal Division at No.: CP-52-CR-0000469-2009


BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS, J.*

MEMORANDUM BY STABILE, J.:                                 FILED MAY 23, 2019

        Appellant Andrew Joseph Allam Sr. pro se appeals from the June 11,

2018 order entered in the Court of Common Pleas of Pike County (“PCRA

court”), which denied his request for collateral relief under the Post Conviction

Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

        The facts and procedural history of this case are undisputed.1 Between

May 1, 2007 and August 21, 2009, Appellant had a sexual relationship with

KS, a minor daughter of Appellant’s paramour at the time. Both the paramour

and KS lived with Appellant throughout the time of these offenses. KS, who

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*   Retired Senior Judge assigned to the Superior Court.
1 Unless otherwise noted, these facts are taken from this Court’s March 7,
2014 memorandum affirming the denial of Appellant’s first PCRA petition. See
Commonwealth v. Allam, No. 959 EDA 2013, unpublished memorandum,
at 1-2 (Pa. Super. filed March 7, 2014) (citing PCRA Court Opinion, 4/3/13, at
1-2), appeal denied, 99 A.3d 75 (Pa. 2014).
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was born in 1995, was between twelve (12) and fourteen (14) years old during

this period. KS became pregnant with Appellant’s child and gave birth in her

residence.    Upon arriving at the hospital, the state police were called.

Following statements by KS to the police that Appellant had impregnated her,

a further investigation revealed multiple sexual encounters occurred between

Appellant and KS. The Commonwealth then filed the appropriate charges.

     A jury trial was eventually held over a two-day period, commencing on

November 18, 2010. The jury convicted Appellant of three counts of Rape of

a Child, twenty counts of Involuntary Deviate Sexual Intercourse, seventeen

counts of Statutory Sexual Assault, fifteen counts of Indecent Assault, and

one count of Corruption of Minors.

     On February 11, 2011, Appellant was sentenced to a term of forty to

eighty years of incarceration, and Appellant was ordered to register with the

state police as a sex offender pursuant to Megan’s Law, 42 Pa.C.S.A. §§

9795.1 et seq. Post-sentence motions were filed and denied, and on March

22, 2011, Appellant filed a timely notice of appeal. In a memorandum filed

on December 2, 2011, this Court affirmed Appellant’s judgment of sentence.

See Commonwealth v. Allam, 40 A.3d 182 (Pa. Super. filed December 2,

2011) (unpublished memorandum). Our Supreme Court denied Appellant’s

petition for allowance of appeal on August 7, 2012. See Commonwealth v.

Allam, 50 A.3d 124 (Pa. 2012).

     On August 27, 2012, Appellant filed a timely PCRA petition, and the

PCRA court appointed counsel. On December 6, 2012, counsel filed a motion

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to withdraw and no-merit letter pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). On December 12, 2012, the PCRA court granted

counsel’s motion to withdraw, informed Appellant of its intent to dismiss his

PCRA petition within twenty days pursuant to Pa.R.Crim.P. 907, and directed

Appellant that he had twenty days in which to respond. When the PCRA court

received no response from Appellant, it entered an order on January 7, 2013,

dismissing his PCRA petition. Appellant appealed to this Court, raising thirty

assertions of error.   In deciding the appeal, we observed that Appellant’s

“statement of the issues presented is merely a rambling attack on multiple

facets of the trial court’s proceedings” and “that nearly all of Appellant’s issues

presented were previously litigated in his direct appeal, were waived, or they

are not cognizable claims under the PCRA.”          Allam, No. 959 EDA 2013,

unpublished memorandum, at 6. Ultimately, on March 7, 2014, we affirmed

the trial court’s denial of Appellant’s PCRA petition, concluding, inter alia, that

Appellant’s ineffectiveness claims, his only viable issues on appeal, lacked

merit. On September 3, 2014, our Supreme Court denied Appellant’s petition

for allowance of appeal. See Commonwealth v. Allam, 99 A.3d 75 (Pa.

2014).

      On August 10, 2016, Appellant pro se filed a “Petition to Correct Illegal

Sentence,” asserting that his sentence was illegal under Alleyne v. United

States, 570 U.S. 99 (2013) and Commonwealth v. Newman, 99 A.3d 86

(Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015).

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Treating the pro se filing as Appellant’s second PCRA petition, the PCRA court,

on September 23, 2016, issued a Rule 907 notice of its intention to dismiss.

On October 13, 2016, Appellant filed his response to the proposed dismissal.

Thereafter, Appellant submitted a number of pro se filings. On April 6, 2017,

Appellant filed a “Motion to Compel Status of Intent to Dismiss PCRA.”

       During the pendency of his second PCRA petition, Appellant pro se filed

his third PCRA petition on September 14, 2017, raising a claim under

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).2 On November 1,

2017, Appellant pro se filed a “Motion for Video Conference.”3 On January 10,

2018, Appellant filed a “Motion to Dismiss Charges for Violation of Pa. Crim.

Rule 1100/600,” requesting that the PCRA court permit him to amend the third

PCRA petition to include a Rule 600 claim. On February 1, 2018, Appellant

filed a “Petition to Amend Petitioner’s Claim of Challenges to Legality of His

Sentence to His Current PCRA Petition.”

       On February 6, 2018, the Commonwealth filed a “Motion to Dismiss

PCRA Without Further Proceedings,” asserting that Appellant’s filings were

untimely under the PCRA. On March 2, 2018, Appellant filed a response to

the Commonwealth’s motion. On March 8, 2018, Appellant filed a “Petition to


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2In Muniz, our Supreme Court held that SORNA’s registration provisions are
punitive, and retroactive application of SORNA’s provisions violates the federal
ex post facto clause, as well as the ex post facto clause of the Pennsylvania
Constitution.
3The PCRA court granted Appellant’s motion for video conference on February
2, 2018.

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Dismiss Criminal Action No. 469-2009 the Criminal Case Is Barred by the

Doctrine of Collateral Estoppel And the Doctrine of Res Judicata.”

       Following a hearing on April 17, 2018, the PCRA court denied Appellant’s

filings in their entirety and granted the Commonwealth’s motion to dismiss.

Appellant appealed to this Court.

       While his appeal was pending, Appellant on June 8, 2018 filed the instant

“Motion to Unmerge Offenses,” which the PCRA court denied on June 11, 2018.

Appellant pro se timely appealed to this Court. Following Appellant’s filing of

a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, the PCRA

court issued a Pa.R.A.P. 1925(a) opinion, addressing the merits of Appellant’s

merger claim.

       On appeal,4 Appellant raises two issues for our review:

       [I.] The court erred in not granting Appellant’s motion to unmerge
       offenses the merger of said offenses are barred by 42 Pa.C.S.A. §
       9765.

       [II.] The court cannot show that each merged offense arose from
       a single criminal act, nor can the court produce a single date to
       prove that a single criminal act had occurred violating Section
       9765.

Appellant’s Brief at iv (sic).

       Instantly, based on our Supreme Court’s holding in Commonwealth v.

Lark, 746 A.2d 585 (Pa. 2000), we decline to address the merits of Appellant’s


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4“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).

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merger claim but conclude that the PCRA court did not err in dismissing

Appellant’s June 8, 2018 motion, which the court properly treated as a PCRA

petition. Indeed, it is settled that the PCRA provides “the sole means of

obtaining collateral relief and encompasses all other common law and

statutory remedies of the same purpose that exist when [the Act] takes

effect[.].” 42 Pa.C.S. § 9542 (emphasis supplied); see Commonwealth v.

Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (“any motion filed after the

finality of a sentence that raises an issue that can be addressed under the

PCRA is to be treated as a PCRA petition.”).

      In Lark, our Supreme Court held that while a “PCRA appeal is pending,

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.” Lark, 746 A.2d

at 588.   In Commonwealth v. Montgomery, 181 A.3d 359 (Pa. Super.

2018) (en banc), we reaffirmed that Lark “precludes consideration of a

subsequent petition from the time a PCRA order is appealed until no further

review of that order is possible.” Montgomery, 181 A.3d at 364.

      Here, because Appellant’s appeal from the dismissal of his previous

PCRA petitions still was pending in this Court at the time he filed the instant

PCRA petition (motion to unmerge), the PCRA court lacked jurisdiction under

Lark to entertain the instant petition. Accordingly, we affirm the PCRA court’s




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order dismissing Appellant’s PCRA petition sub judice albeit on a different

ground, i.e., under Lark. 5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/19




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5We may affirm on any grounds supported by the record. Commonwealth
v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012) (“This Court may affirm a
PCRA court’s decision on any grounds if the record supports it.”).

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