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[U] Commonwealth v. Allam

Superior Court of Pennsylvania

March 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ANDREW J. ALLAM, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered January 7, 2013, In the Court of Common Pleas of Pike County, Criminal Division, at No. CP-52-CR-0000469-2009.

BEFORE: GANTMAN, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Andrew J. Allam, appeals pro se from the order entered on January 7, 2013 that dismissed his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court set forth the facts underlying this matter as follows:
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 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.

PCRA Court Opinion, 4/3/13, at 1-2 (footnotes omitted).

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. Commonwealth v. Allam, 812 EDA 2011, 40 A.3d 182 (Pa.Super. filed December 2, 2011) (unpublished memorandum), appeal denied, 616 Pa. 656, 50 A.3d 124 (2012).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 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), in which she averred that Appellant's PCRA petition was meritless. In an order filed 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 timely appealed.

On appeal, Appellant purports to raise thirty issues, which we have reproduced verbatim:

I. The consent & DNA obtained from defendant is in violation of state and federal Constitutions and contrary to the laws of the Commonwealth.
II. The trial judge charged the jury with improper jury instructions which eased the fact finding Process.
III. The testimony by KS at jury trial is contradictory, evasive, not credible or conclusive, and contrary to prior PCCY statements reports and evidence at several juvenile Court Proceedings.
IV. Defendant's Counsel So utterly failed to defend Against the charges that the trial was the functional equivalent of a guilty plea rendering Counsel's reputation Presumptively inadequate.
V. The Commonwealth Violated the defendant's federal & Pennsylvania Constitutional rights, defendant was substantially denied an opportunity to present a defense by the Commonwealth's failure to specify the date or dates on which the alleged offenses were actually committed.
VI. The trial court improperly allowed KS to testify as a witness for the Commonwealth at defendant's jury trial, after the same president judge had determined KS to be unavailable due to emotional distress and could not communicate effectively at prior juvenile hearings.
VII. Defendant was denied an unanimous jury verdict based on Carbon Copy Counts and conduct that was not differentiated in Anyway.
VIII. The prosecution of defendant in criminal court regarding the Same Parties, conduct, and facts that were already litigated in juvenile court violates the double jeopardy clause of the 5th & 14th Amendments of the U.S. Constitution And in violation of due process.
IX. The signatures on the bottom of pages one and two of the alleged victims 11-18-09 PSP written statement are not of the alleged victim, thus a product of forgery.
X. The criminal information 469-2009 filed against the defendant was not signed by the attorney for the Commonwealth which calls into question the authenticity of said information.
XI. Defendant's counsel was ineffective in failing to conduct an reasonable pre-trial investigation, this violated defendant's right to counsel as guaranteed by Amendment 6 & 14 of U.S. Constitution.
XII. The District Attorney Sarah A. Wilson had committed Prosecutorial misconduct which so infects the defendant's jury trial with unfairness as to make the resulting conviction a denial of due process.
XIII. The Commonwealth had failed to Prove an element of each offense and due to the lack of evidence the Commonwealth failed to meet its burden.
XIV. The Commonwealth obtained DNA samples from KS and CS without consent which is contrary to Pennsylvania & U.S. Constitution and contrary to the laws of the Commonwealth.
XV. The jury erred in finding defendant guilty on all counts with no evidence and contradictory testimony from the alleged victim (KS) said testimony is contrary to her 11-18-09 PSP written statement, juvenile court evidence, PCCY testimony and evidence.
XVI. The Commonwealth by charging defendant with six sets of carbon copy counts that are identical in every way and undifferentiated in the criminal information violate, ordinary rules of notice duplicity, multiplicity, jury unanimity double jeopardy, sufficiency of the evidence, constitutional and due process rights.
XVII. Trooper Travis had testified at pretrial & jury trial said testimony was inconclusive, contradictory, bias, and perjured, his actions constituted a personal interest in proving defendant is guilty and proves his hate for the defendant.
XVIII. Appellant was tried in both juvenile court and criminal court thus a "dual sovereignty" the second trial being criminal and prosecuted by the Commonwealth of Pennsylvania constitutes double jeopardy a violation of the 5th & 14thAmendments of the U.S. Constitution.
XIX. Appellant's Criminal Information #469-2009 is defective, the information had charged all the offenses in the same generic terms employed by the statue.
XX. The Application for the warrant of arrest filed by the MDJ, and the actual warrant of arrest that trooper travis had on 11-24-09 while arresting Appellant were both invalid and incomplete.
XXI. Trooper travis failed to read Appellant his miranda warnings prior to questioning and before he arrested Appellant and had placed him in hand cuffs on Nov 24th 2009, which violated Appellant's Constitutional rights.
XXII. Appellant had been sentenced on Feb 11th 2011, before his sexual offenders assessment was ever sent to Probation or the Court.
XXIII. The sentencing judge had improperly determined Appellant to be a sexually violent offender, with no facts nor authority, and contrary to the SOAB assessment of Appellant.
XXIV. The trial judge by allowing the 11-18-09 PSP written statement by KS to be taken back into the jury room during deliberation, is a miscarriage of justice, violation of Appellant's constitutional rights and contrary to rules of court.
XXV. The alleged victim (KS) at Appellant's criminal jury trial on 11-18-10 was never informed by the court or her attorney before testifying for the Commonwealth that she had a right to choose not to testify at said trial.
XXVI. ADA Wilson had erred by agreeing to allow the KS PSP written statement to go back into the jury room during deliberation, thus denying Appellant's rights to a fair trial and in violation of Pa. Court rules, and Due process.
XXVII. Appellant's defense attorney Mark E. Moulton had erred by agreeing with the ADA to allow KS 11-18-09 PSP written statement to go back into the jury room during deliberation which violated defendant's Due process rights.
XXVIII. Exhibit 10 the letter from Appellant to KS was read by ADA Wilson during closing arguments was improper, contrary to PA. Court rules and violated Appellant's constitutional rights.
XXIX. Appellant was arrested on 11-24-09 @ 1:25 p.m. (tuesday) well before the MDJ Alan B. Cooper had reviewed and signed the police complaint and probable cause, which violated Appellant's constitutional rights and would constitute illegal arrest of Appellant.
XXX. Appellant argues that the probable cause prepared by trooper travis contained several false statements regarding criminal conduct that are not corroborated by his police reports or statements made by Appellant or KS the probable cause shows Libel & perjury & fraud by trooper travis.

Appellant's Brief at 24-30 (handwritten original).

Initially, we point out that Appellant's statement of the issues presented is merely a rambling attack on multiple facets of the trial court's proceedings. Upon review, we agree with the PCRA court 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. PCRA Court Opinion, 4/3/13, at 3-4 (citing 42 Pa.C.S.A. § 9543 (setting forth cognizable matters under the PCRA) and 42 Pa.C.S.A. § 9544 (explaining previously litigated matters and waiver)). Moreover, we are in agreement with the PCRA court that the only remaining cognizable issues that are arguably viable are issues in which Appellant claims, or at least infers, that counsel was ineffective.

After reviewing the briefs of the parties, the certified record, and relevant authority, we conclude that the PCRA court's opinion thoroughly addresses the issues raised on appeal, delineates which issues are cognizable, concludes those issues lack merit, and explains why the remaining issues were either previously litigated and disposed of on direct appeal or waived. Accordingly, we affirm the PCRA court's order and we do so on the basis of the PCRA court's April 3, 2013 opinion. The parties are directed to attach a copy of the PCRA court opinion in the event of further proceedings in this matter.

Order affirmed.

Judgment Entered.

(Image Omitted)


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