J-S04034-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANDREW JOSEPH ALLAM : : Appellant : No. 1112 EDA 2023
Appeal from the Order Entered April 18, 2023 In the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000469-2009
BEFORE: BOWES, J., STABILE, J., and LANE, J.
MEMORANDUM BY LANE, J.: FILED MARCH 26, 2024
Andrew Joseph Allam (“Allam”) appeals pro se from the order dismissing
his “Motion to Nunc Pro Tunc Direct Appeal Rights, Lack of Quorum of the
Court When Superior Court Rendered Its Decision” (hereinafter “Motion to
Nunc Pro Tunc”), which challenged this Court’s direct appeal decision, issued
in 2011. We hold: (1) this motion should have been construed under the Post
Conviction Relief Act1 (“PCRA”); (2) the motion was a legal nullity because it
was filed while Allam’s prior PCRA appeal was pending; and thus (3) the order
dismissing the motion was also a legal nullity. Accordingly, we quash the
appeal.
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1 See 42 Pa.C.S.A. §§ 9541-9546. J-S04034-24
A detailed recitation of the underlying facts — which are well known to
the parties and the PCRA court — is not necessary for our disposition.2
Instead, we recount that in November of 2010, Allam was found guilty
following a jury trial of multiple counts of rape of a child and related offenses.
The trial court imposed an aggregate sentence of forty to eighty years’
imprisonment, found Allam to be a sexually violent offender, and ordered him
to register under the then-in effect Megan’s Law.3
Allam filed a direct appeal, and on December 2, 2011, a two-judge panel
of this Court affirmed his judgment of sentence. Allam subsequently filed
several PCRA petitions, all of which were denied.
Pertinently, in April 2022, Allam filed a pro se “Motion to Dismiss
Criminal Action No. 469-2009, for Unsigned Probable Cause and Warrant of
Arrest.” The PCRA court denied relief, and Allam appealed. This Court
2 This Court has previously addressed five appeals taken by Allam at this criminal trial docket. See Commonwealth v. Allam, 296 A.3d 640 (Pa. Super. 2023) (unpublished memorandum) (affirming dismissal of untimely, fourth PCRA petition); Commonwealth v. Allam, 258 A.3d 542 (Pa. Super. 2021) (unpublished memorandum) (affirming dismissal of untimely serial PCRA petition); Commonwealth v. Allam, 217 A.3d 430 (Pa. Super. 2019) (unpublished memorandum) (affirming dismissal of PCRA petition under Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), because it was filed while prior PCRA appeal was still pending); Commonwealth v. Allam, 100 A.3d 298 (Pa. Super. 2014) (unpublished memorandum) (affirming dismissal of first PCRA petition), appeal denied, 99 A.3d 75 (Pa. 2014); Commonwealth v. Allam, 40 A.3d 182 (Pa. Super. 2011) (unpublished memorandum) (affirming judgment of sentence), appeal denied, 50 A.3d 124 (Pa. 2012).
3 See 42 Pa.C.S.A. §§ 9791-9799.9 (expired).
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affirmed the PCRA court’s order on March 28, 2023, holding the motion should
have been treated as a PCRA petition and dismissed as untimely filed.
Allam then had thirty days, or until April 27, 2023, to file a petition for
allowance of appeal with our Supreme Court. See Pa.R.A.P. 1113(a). Allam
did not file such a petition but, on April 18, 2023, filed the underlying pro se
Motion to Nunc Pro Tunc.4 Therein, Allam challenged this Court’s 2011 direct
appeal decision, averring that because the panel consisted of fewer than three
judges, in violation of Pa.R.A.P. 3102(b)5 and Superior Court Internal
Operating Procedure Rule 65.5,6 this Court had no power and no jurisdiction
to enter its decision. Allam requested that his direct appeal rights be
reinstated nunc pro tunc.
The PCRA court denied the Motion to Nunc Pro Tunc. The court’s opinion
noted, without further discussion, that the motion “was not treated as a” PCRA
petition, but also found the motion was an untimely PCRA petition, as it was
4 The “filed” stamp on the face of the motion bears a filing date of April 17,
2023. However, it was not entered on the PCRA court docket until April 18, 2023, For ease of review, we refer to the date of the PCRA court docket entry.
5 See Pa.R.A.P. 3102(b) (stating that “[i]f less than three members of a panel
attend a session of the panel, another judge or judges shall be designated to complete the panel if reasonably possible, and if it is not reasonably possible to do so the presiding judge with the consent of the parties present may direct that the matter be heard and determined by a panel of two judges”).
6 See Pa. IOP Super. Ct. 65.5.A (providing that “[e]xcept as otherwise provided by these rules, all appeals, whether argued or submitted, shall be assigned to and decided by panels consisting of three judges”).
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filed beyond the general one-year deadline and no timeliness exceptions were
raised. See PCRA Court, 8/15/23, at 2-4. Allam filed a pro se notice of
appeal.7
Before addressing Allam’s issues on appeal, we must first determine
whether the Motion to Nunc Pro Tunc was cognizable under the PCRA, and if
so, whether it was timely filed. See 42 Pa.C.S.A. § 9542 (stating that the
PCRA “shall be the sole means of obtaining collateral relief and encompasses
all other common law and statutory remedies for the same purpose that exist
when this subchapter takes effect, including habeas corpus and coram nobis”);
see also Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (noting “PCRA
time limits are jurisdictional in nature, implicating a court’s very power to
adjudicate a controversy”).
In October 2023, this Court issued a per curiam rule on the PCRA court
and the parties to show cause why this appeal should not be quashed pursuant
to Lark. See 746 A.2d at 588 (holding “that 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[ ]”) (emphasis added).
7 While Allam filed a pro se Rule 1925(b) concise statement of errors complained of on appeal contemporaneously with his notice of appeal, the following day the PCRA court issued an order directing him to file another one.
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The PCRA court filed a response to the rule to show cause, which again
suggested, without discussion or legal authority, that Allam’s motion should
not be considered a PCRA petition. Nevertheless, the court reasoned in the
alternative that if Allam’s motion were properly construed as a PCRA petition,
it would have been improperly filed under Lark. Allam also filed a response
to the rule to show cause.8 He stated, similarly without explanation or legal
authority, “[i]t cannot be treated as a PCRA.” See Allam’s Response,
12/21/23, at 3.
We conclude that the Motion for Nunc Pro Tunc is subject to the PCRA,
and was prematurely filed while his prior appeal was pending or untimely filed
pursuant to Lark. To the extent Allam claimed this Court’s direct appeal panel
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J-S04034-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANDREW JOSEPH ALLAM : : Appellant : No. 1112 EDA 2023
Appeal from the Order Entered April 18, 2023 In the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000469-2009
BEFORE: BOWES, J., STABILE, J., and LANE, J.
MEMORANDUM BY LANE, J.: FILED MARCH 26, 2024
Andrew Joseph Allam (“Allam”) appeals pro se from the order dismissing
his “Motion to Nunc Pro Tunc Direct Appeal Rights, Lack of Quorum of the
Court When Superior Court Rendered Its Decision” (hereinafter “Motion to
Nunc Pro Tunc”), which challenged this Court’s direct appeal decision, issued
in 2011. We hold: (1) this motion should have been construed under the Post
Conviction Relief Act1 (“PCRA”); (2) the motion was a legal nullity because it
was filed while Allam’s prior PCRA appeal was pending; and thus (3) the order
dismissing the motion was also a legal nullity. Accordingly, we quash the
appeal.
____________________________________________
1 See 42 Pa.C.S.A. §§ 9541-9546. J-S04034-24
A detailed recitation of the underlying facts — which are well known to
the parties and the PCRA court — is not necessary for our disposition.2
Instead, we recount that in November of 2010, Allam was found guilty
following a jury trial of multiple counts of rape of a child and related offenses.
The trial court imposed an aggregate sentence of forty to eighty years’
imprisonment, found Allam to be a sexually violent offender, and ordered him
to register under the then-in effect Megan’s Law.3
Allam filed a direct appeal, and on December 2, 2011, a two-judge panel
of this Court affirmed his judgment of sentence. Allam subsequently filed
several PCRA petitions, all of which were denied.
Pertinently, in April 2022, Allam filed a pro se “Motion to Dismiss
Criminal Action No. 469-2009, for Unsigned Probable Cause and Warrant of
Arrest.” The PCRA court denied relief, and Allam appealed. This Court
2 This Court has previously addressed five appeals taken by Allam at this criminal trial docket. See Commonwealth v. Allam, 296 A.3d 640 (Pa. Super. 2023) (unpublished memorandum) (affirming dismissal of untimely, fourth PCRA petition); Commonwealth v. Allam, 258 A.3d 542 (Pa. Super. 2021) (unpublished memorandum) (affirming dismissal of untimely serial PCRA petition); Commonwealth v. Allam, 217 A.3d 430 (Pa. Super. 2019) (unpublished memorandum) (affirming dismissal of PCRA petition under Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), because it was filed while prior PCRA appeal was still pending); Commonwealth v. Allam, 100 A.3d 298 (Pa. Super. 2014) (unpublished memorandum) (affirming dismissal of first PCRA petition), appeal denied, 99 A.3d 75 (Pa. 2014); Commonwealth v. Allam, 40 A.3d 182 (Pa. Super. 2011) (unpublished memorandum) (affirming judgment of sentence), appeal denied, 50 A.3d 124 (Pa. 2012).
3 See 42 Pa.C.S.A. §§ 9791-9799.9 (expired).
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affirmed the PCRA court’s order on March 28, 2023, holding the motion should
have been treated as a PCRA petition and dismissed as untimely filed.
Allam then had thirty days, or until April 27, 2023, to file a petition for
allowance of appeal with our Supreme Court. See Pa.R.A.P. 1113(a). Allam
did not file such a petition but, on April 18, 2023, filed the underlying pro se
Motion to Nunc Pro Tunc.4 Therein, Allam challenged this Court’s 2011 direct
appeal decision, averring that because the panel consisted of fewer than three
judges, in violation of Pa.R.A.P. 3102(b)5 and Superior Court Internal
Operating Procedure Rule 65.5,6 this Court had no power and no jurisdiction
to enter its decision. Allam requested that his direct appeal rights be
reinstated nunc pro tunc.
The PCRA court denied the Motion to Nunc Pro Tunc. The court’s opinion
noted, without further discussion, that the motion “was not treated as a” PCRA
petition, but also found the motion was an untimely PCRA petition, as it was
4 The “filed” stamp on the face of the motion bears a filing date of April 17,
2023. However, it was not entered on the PCRA court docket until April 18, 2023, For ease of review, we refer to the date of the PCRA court docket entry.
5 See Pa.R.A.P. 3102(b) (stating that “[i]f less than three members of a panel
attend a session of the panel, another judge or judges shall be designated to complete the panel if reasonably possible, and if it is not reasonably possible to do so the presiding judge with the consent of the parties present may direct that the matter be heard and determined by a panel of two judges”).
6 See Pa. IOP Super. Ct. 65.5.A (providing that “[e]xcept as otherwise provided by these rules, all appeals, whether argued or submitted, shall be assigned to and decided by panels consisting of three judges”).
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filed beyond the general one-year deadline and no timeliness exceptions were
raised. See PCRA Court, 8/15/23, at 2-4. Allam filed a pro se notice of
appeal.7
Before addressing Allam’s issues on appeal, we must first determine
whether the Motion to Nunc Pro Tunc was cognizable under the PCRA, and if
so, whether it was timely filed. See 42 Pa.C.S.A. § 9542 (stating that the
PCRA “shall be the sole means of obtaining collateral relief and encompasses
all other common law and statutory remedies for the same purpose that exist
when this subchapter takes effect, including habeas corpus and coram nobis”);
see also Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (noting “PCRA
time limits are jurisdictional in nature, implicating a court’s very power to
adjudicate a controversy”).
In October 2023, this Court issued a per curiam rule on the PCRA court
and the parties to show cause why this appeal should not be quashed pursuant
to Lark. See 746 A.2d at 588 (holding “that 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[ ]”) (emphasis added).
7 While Allam filed a pro se Rule 1925(b) concise statement of errors complained of on appeal contemporaneously with his notice of appeal, the following day the PCRA court issued an order directing him to file another one.
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The PCRA court filed a response to the rule to show cause, which again
suggested, without discussion or legal authority, that Allam’s motion should
not be considered a PCRA petition. Nevertheless, the court reasoned in the
alternative that if Allam’s motion were properly construed as a PCRA petition,
it would have been improperly filed under Lark. Allam also filed a response
to the rule to show cause.8 He stated, similarly without explanation or legal
authority, “[i]t cannot be treated as a PCRA.” See Allam’s Response,
12/21/23, at 3.
We conclude that the Motion for Nunc Pro Tunc is subject to the PCRA,
and was prematurely filed while his prior appeal was pending or untimely filed
pursuant to Lark. To the extent Allam claimed this Court’s direct appeal panel
lacked jurisdiction to enter a decision, the PCRA explicitly allows such a
jurisdictional challenge. See 42 Pa.C.S.A. § 9543(a)(2)(viii) (stating a
petitioner may raise a claim that his conviction or sentence resulted from “[a]
proceeding in a tribunal without jurisdiction”). Furthermore, a request for the
reinstatement of direct appeal rights is cognizable under the PCRA. See
Commonwealth v. Karanicolas, 836 A.2d 940, 945 (Pa. Super. 2003)
(reasoning that petitioner’s “initial PCRA petition served only to reinstate his
rights to a direct appeal nunc pro tunc; it did not grant him PCRA relief per
8 Although Allam’s response, styled as a “Motion to Impose Sanctions Upon
Pike County Court for Failing to Comply with Superior Court’s Order,” was untimely filed after the deadline set forth in the rule to show cause, this Court accepted the filing.
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se”); see also Commonwealth v. Koehler, 229 A.3d 915, 929-30 (Pa.
2020) (reasoning that “[i]f an error of constitutional magnitude occurs during
the appellate process, the PCRA is the sole means of collaterally attacking the
final judgment on that basis”).
For the foregoing reasons, we conclude that Allam’s Motion for Nunc Pro
Tunc should have been treated as a PCRA petition, and thus was subject to
PCRA filing requirements. See 42 Pa.C.S.A. §§ 9542, 9543(a)(2)(viii); see
also Karanicolas, 836 A.2d at 945. Pursuant to Lark, because Allam was
still within the thirty-day period for filing a petition for allowance of appeal
following this Court’s March 28, 2023 decision affirming the denial of his prior
PCRA petition, his Motion for Nunc Pro Tunc was a nullity. See Lark, 746 A.2d
at 588; see also Commonwealth v. Belle, 289 A.3d 82 (Pa. Super. 2022)
(unpublished memorandum at 4) (stating PCRA filings advanced in violation
of Lark are legal nullities), appeal denied, 304 A.3d 328 (Pa. 2023);
Commonwealth v. Neisser, 227 A.3d 395 (Pa. Super. 2020) (unpublished
memorandum at 5-6) (same).9
We further conclude that, because the Motion for Nunc Pro Tunc was a
legal nullity, the PCRA court lacked authority to rule on it. See Belle, 289
A.3d 82 (unpublished memorandum at 4); see also Neisser, 227 A.3d 395
(unpublished memorandum at 5-6). The PCRA court also lacked jurisdiction,
9 See Pa.R.A.P. 126(b)(1)-(2) (providing that Superior Court non-precedential
decisions filed after May 1, 2019, may be cited for persuasive value).
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under Pa.R.A.P. 1701(a), to enter any ruling while this matter was on appeal
and the record remained in this Court’s possession. See Pa.R.A.P. 1701(a)
(stating generally, after an appeal is taken, the trial court may no longer
proceed further in the matter); see also Pa.R.A.P. 2572(a)(2) (stating that
the record shall be remanded to the lower court at the expiration of thirty days
after the entry of the judgment of the appellate court possessed of the record).
Accordingly, we quash the appeal.10 See Commonwealth v. Seay, 814 A.2d
1240, 1241 (Pa. Super. 2003) (holding that “[w]here a PCRA petition is
premature, we quash an appeal taken from a ruling on it”).
Appeal quashed.
Date: 3/26/2024
10 We note that previously, Allam similarly filed a PCRA petition while his prior
PCRA appeal was still pending, and on appeal, this Court: (1) applied Lark; (2) concluded the PCRA court lacked jurisdiction to rule on it; and (3) thus affirmed the order dismissing the petition. See Allam, 217 A.3d 430 (unpublished memorandum at 6). Nevertheless, we opine in this appeal that because the PCRA court lacked jurisdiction to rule on the Motion for Nunc Pro Tunc, the order dismissing it was likewise a legal nullity, and thus we quash the appeal.
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