J-S34040-19

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HOWARD SCOTT ALLISON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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). 
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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 

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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. 
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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)? 

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5 Pa.R.A.P. § 1113. 
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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 

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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. 
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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. 

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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.”). 
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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.