J-S75002-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DALE FOSTER

Appellant No. 788 EDA 2013

Appeal from the PCRA Order March 7, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1008631-1998

BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.: FILED DECEMBER 19, 2014

Appellant, Dale Foster, appeals pro se from the March 7, 2013 order, 

dismissing as untimely his petition for relief filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful 

review, we vacate and remand for further proceedings.

This case has a tortured procedural history, which we summarize as 

follows. On October 20, 1999, Appellant was found guilty by a jury of one 

count each of aggravated assault, carrying a firearm without a license, 

carrying firearms in public, persons not to possess a firearm, criminal 

trespass, possession of an instrument of a crime, terroristic threats, simple 

assault, recklessly endangering another person (REAP), resisting arrest, and 
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criminal conspiracy.1 On December 16, 1999, the trial court imposed an 

aggregate sentence of 241⁄2 to 77 years’ imprisonment. Appellant did not file 

any post-sentence motions. On November 9, 2001, this Court affirmed the 

judgment of sentence. Commonwealth v. Foster, 792 A.2d 613 (Pa. 

Super. 2001) (unpublished memorandum) (Foster I). Appellant did not file 

a petition for allowance of appeal in our Supreme Court.

Appellant timely filed his first PCRA petition on November 12, 2002. 

The PCRA court dismissed said petition on October 20, 2004. On June 15, 

2006, this Court dismissed Appellant’s appeal, concluding that Appellant had 

waived all issues by not filing a concise statement of errors complained of on 

appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). 

Commonwealth v. Foster, 905 A.2d 1042 (Pa. Super. 2006) (unpublished 

memorandum) (Foster II). 

On March 28, 2007, Appellant filed a second pro se PCRA petition. 

Counsel, who represented Appellant in the first PCRA, filed a supplemental 

PCRA petition on July 13, 2007, alleging that Appellant was deprived of the 

effective assistance of counsel due to counsel’s own failure to file a Rule 

1925(b) statement during his first PCRA appeal. On a motion from the 

Commonwealth, the PCRA court appointed new counsel for Appellant. The 

____________________________________________

1 18 Pa.C.S.A. §§ 2702, 6106, 6108, 6105, 3503, 907, 2706, 2701, 2705, 

5104, and 903, respectively.
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Commonwealth also informed the PCRA court that it did not oppose the 

restoration of Appellant’s PCRA appeal rights nunc pro tunc.

On February 2, 2009, the PCRA court entered the following order.

AND NOW this 29th day of January 2009 on motion of 

John P. Cotter, Esq., Attorney for [Appellant, 

Appellant]’s PCRA petition is granted and 

[Appellant]’s appeal rights are reinstated and 

[Appellant] is permitted to file a notice of appeal 

nunc pro tunc from the denial of PCRA relief imposed 

in the above matter within 30 days of the date 

hereof.

PCRA Court Order, 2/2/09. Accordingly, Appellant filed a timely notice of 

appeal nunc pro tunc from the denial of PCRA relief to this Court on February 

4, 2009.

On March 26, 2010, this Court issued its decision in an unpublished 

memorandum. Relevant to this appeal, this Court characterized the case as 

a direct appeal nunc pro tunc from Appellant’s judgment of sentence. The 

panel specifically concluded as follows.

As already noted, we determine this case is 

before us on direct appeal, nunc pro tunc, from 

[Appellant]’s judgment of sentence. While both 

[Appellant] and the Commonwealth believe this case 

is before us as a collateral appeal from the denial of 

[Appellant]’s first PCRA petition, we disagree. Here, 

Judge Dembe granted [Appellant]’s second PCRA 

petition, and reinstated his right to file a direct 

appeal nunc pro tunc, which [Appellant] did.

Commonwealth v. Foster, 996 A.2d 541 (Pa. Super. 2010) (unpublished 

memorandum at 7) (Foster III). The Court declined to address any of 

Appellant’s claims of ineffective assistance of counsel on appeal pursuant to 
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Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), in which our Supreme 

Court held that claims of ineffective assistance of counsel must be deferred 

to collateral attack under the PCRA. Id. at 738; Foster III, supra. The 

panel concluded that it could not address Appellant’s claims of trial counsel 

ineffectiveness because the trial court did not conduct an evidentiary hearing 

or develop a record. Id. Therefore, this Court concluded “the proper 

disposition is to dismiss his claim without prejudice to proceed pursuant to 

the PCRA.” Id. Neither Appellant nor the Commonwealth filed a petition for 

allowance of appeal in our Supreme Court.

On May 7, 2010, Appellant filed the instant pro se PCRA petition. On 

December 17, 2010, counsel filed an amended PCRA petition. After a 

substitution of counsel, a second amended PCRA petition was filed on 

Appellant’s behalf on October 17, 2011. The Commonwealth filed its motion 

to dismiss on December 22, 2011. On July 12, 2012, Appellant filed a 

supplemental amended petition. The Commonwealth filed a supplemental 

answer on November 13, 2012.

On January 22, 2013, the PCRA court issued notice of its intent to 

dismiss Appellant’s petition without a hearing pursuant to Pennsylvania Rule 

of Criminal Procedure 907. On January 31, 2013, Appellant filed a pro se

response, and on February 21, 2013, Appellant filed a counseled response. 

On March 7, 2013, the PCRA court entered its final order dismissing 
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Appellant’s PCRA petition as untimely. On March 11, 2013, Appellant filed a 

timely notice of appeal.2

On appeal, Appellant raises one issue for our review.

I. Did the [PCRA] court err in denying Appellant 

an evidentiary hearing because it failed to 

apply the provisions authorized by the Superior 

Court’s March 26, 2010 judgment and because 

of ineffective assistance of PCRA counsel?

Appellant’s Brief at 4.

We begin by noting our well-settled standard of review. “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) (internal quotation 

marks and citation omitted). “The scope of review is limited to the findings 

of the PCRA court and the evidence of record, viewed in the light most 

favorable to the prevailing party at the trial level.” Commonwealth v. 

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled 

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2 On March 14, 2013, the PCRA court entered an order directing Appellant to 

file a Rule 1925(b) statement within 21 days. Counsel for Appellant 

complied on April 3, 2013. On April 17, 2013, Appellant filed a pro se

supplemental Rule 1925(b) statement, objected to counsel’s Rule 1925(b) 

statement, and claimed ineffective assistance of PCRA counsel. On May 10, 

2013, Appellant filed an application for remand in this Court for the PCRA 

court to conduct a hearing pursuant to Commonwealth v. Grazier, 713 

A.2d 81 (Pa. 1998). On May 29, 2013, this Court remanded the case for 60 

days for the PCRA court to conduct a Grazier hearing. The PCRA court 

conducted the required Grazier hearing on October 17, 2013 and granted 

Appellant the right to proceed pro se.
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that a PCRA court’s credibility determinations are binding upon an appellate 

court so long as they are supported by the record.” Commonwealth v. 

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this 

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth 

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

Before we may address the merits of Appellant’s arguments, we must 

first consider the timeliness of Appellant’s PCRA petition because it 

implicates the jurisdiction of this Court and the PCRA court. 

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation 

omitted). Pennsylvania law makes clear that when “a PCRA petition is 

untimely, neither this Court nor the trial court has jurisdiction over the 

petition.” Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014) 

(citation omitted), appeal denied, 101 A.3d 103 (Pa. 2014). The “period for 

filing a PCRA petition is not subject to the doctrine of equitable tolling; 

instead, the time for filing a PCRA petition can be extended only if the PCRA 

permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 

2014) (internal quotation marks and citation omitted), cert. denied, Ali v. 

Pennsylvania, --- U.S. ---, 2014 WL 2881005 (2014). This is to “accord 

finality to the collateral review process.” Commonwealth v. Watts, 23 

A.3d 980, 983 (Pa. 2011) (citation omitted). “However, an untimely petition 

may be received when the petition alleges, and the petitioner proves, that 

any of the three limited exceptions to the time for filing the petition, set 
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forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.” 

Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation 

omitted). The PCRA provides, in relevant part, as follows.

§ 9545. Jurisdiction and proceedings

...

(b) Time for filing petition.—

(1) Any petition under this subchapter, 

including a second or subsequent petition, shall 

be filed within one year of the date the 

judgment becomes final, unless the petition 

alleges and the petitioner proves that: 

(i) the failure to raise the claim 

previously was the result of interference 

by government officials with the 

presentation of the claim in violation of 

the Constitution or laws of this 

Commonwealth or the Constitution or 

laws of the United States;

(ii) the facts upon which the claim is 

predicated were unknown to the 

petitioner and could not have been 

ascertained by the exercise of due 

diligence; or

(iii) the right asserted is a constitutional 

right that was recognized by the 

Supreme Court of the United States or 

the Supreme Court of Pennsylvania after 

the time period provided in this section 

and has been held by that court to apply 

retroactively. 

(2) Any petition invoking an exception 

provided in paragraph (1) shall be filed within 
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60 days of the date the claim could have been 

presented. 

...

42 Pa.C.S.A. § 9545(b).

In the case sub judice, Appellant argues that the PCRA court erred in 

treating the instant petition as untimely. In Appellant’s view, “the one-year 

time limitation from the latest judgment from the Pennsylvania Superior 

Court ... [and t]hat would be the March 26, 2010 [j]udgment of the Superior 

Court docketed at #433 EDA 2009.” Appellant’s Brief at 7. After careful 

review, we are constrained to agree. 

It was the judgment of this Court on March 26, 2010 that Appellant’s 

appeal docketed at 433 EDA 2009 was a direct appeal nunc pro tunc from 

his December 16, 1999 original judgment of sentence. Foster III, supra at 

1, 6, 7. Therefore, Appellant’s judgment of sentence was affirmed by this 

Court on March 26, 2010, despite already having been affirmed on 

November 9, 2001 after a consideration of Appellant’s issues on the merits. 

See, e.g., Foster I, supra at 3-6. Neither Appellant nor the 

Commonwealth filed a petition for allowance of appeal in our Supreme Court 

from our decision in Foster III. Consequently, the effect of this Court’s 

judgment in Foster III was to reset the clock for the purposes of the PCRA 

time-bar. See, e.g., Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa. 

Super. 2014) (concluding, “[the a]ppellant’s judgment of sentence became 

final on ... the last day [the a]ppellant could have filed his direct appeal nunc 
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pro tunc[]”), citing Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. 

Super. 2013) (stating, “the time for filing a PCRA petition restarted thirty 

days after the ... order reinstating [the a]ppellant’s direct appeal rights, and 

a PCRA petition filed [within one year] would be a timely first petition[]”) 

(citations omitted), appeal denied, 91 A.3d 162 (Pa. 2014). Therefore, 

Appellant’s judgment of sentence became final on April 26, 2010, when the 

filing period for an allocatur petition in our Supreme Court expired.3 See 42 

Pa.C.S.A. § 9545(b)(3) (stating, “a judgment becomes final at the 

conclusion of direct review, including discretionary review in the Supreme 

Court of the United States and the Supreme Court of Pennsylvania, or at the 

expiration of time for seeking the review[]”); Pa.R.A.P. 1113(a) (stating, “a 

petition for allowance of appeal shall be filed with the Prothonotary of the 

Supreme Court within 30 days after the entry of the order of the Superior 

Court ... sought to be reviewed[]”). As a result, Appellant had until April 26, 

2011 to timely file a PCRA petition. As Appellant filed the instant petition on 

May 7, 2010, it was timely filed. Therefore, the PCRA court’s conclusion that 

the PCRA petition was untimely was not correct.

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3 We observe that the 30th day fell on Sunday, April 25, 2010. When 

computing the 30-day filing period “[if] the last day of any such period shall 

fall on Saturday or Sunday ... such day shall be omitted from the 

computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30

th day for Appellant to 

file a timely allocatur petition was Monday, April 26, 2010.
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Based on the foregoing, we are constrained to conclude that the PCRA 

court erroneously dismissed Appellant’s instant PCRA petition as untimely 

filed.4 Accordingly, the PCRA court’s March 7, 2013 order is vacated, and 

the case is remanded for further proceedings consistent with this 

memorandum.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/2014

____________________________________________

4 We express no opinion on the merits of any issues raised below, nor as to 

whether the PCRA court is required to hold an evidentiary hearing. We 

further observe that although this is now Appellant’s first PCRA petition and 

he was entitled to counsel under Pennsylvania Rule of Criminal Procedure 

904(C), Appellant received counsel in the PCRA court, and later successfully 

sought to proceed pro se under Grazier. Therefore, any representation 

issue is moot.