J-A08029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN R. SHAY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 863 WDA 2021

Appeal from the Order Entered July 7, 2021

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0000290-2006

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN R. SHAY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 864 WDA 2021

Appeal from the Order Entered July 7, 2021

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0000918-2007

BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.

MEMORANDUM BY LAZARUS, J.: FILED: JULY 29, 2022

Kevin R. Shay appeals, pro se, from the orders1 entered in the Court of 

Common Pleas of Allegheny County, dismissing his most recent petition filed 

____________________________________________

1 Shay has complied with the dictates of Commonwealth v. Walker, 185 

(Footnote Continued Next Page)
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pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. 

After careful review, we affirm.

This case has a long and somewhat convoluted procedural history, 

which, in relevant part, is summarized below.

On December 7, 2005, at CP-02-CR-0000290-2006 (No. 290-2006), 

Shay was charged with sexual abuse of children and related offenses. While 

Shay was on bond for that case, he used a computer to disseminate images 

of child pornography to an undercover detective. Accordingly, on November 

29, 2006, at CP-02-CR-0000918-2007 (No. 918-2007), Shay was charged 

with sexual abuse of children and related offenses.

On May 17, 2007, Shay appeared before the Honorable Donna Jo 

McDaniel where he entered a general guilty plea at Nos. 290-2006 and 918-

2007 to all counts. The court sentenced Shay to six months’ house arrest and 

a concurrent period of three years’ probation. Shay did not file a direct appeal 

or post-sentence motions.

Shay subsequently violated the terms of his probation, and on March 

30, 2010, Shay attended a probation violation hearing and the court 

resentenced him to a new term of three years’ probation. 

____________________________________________

A.3d 969 (Pa. 2018), which requires the filing of “separate appeals from an 

order that resolves issues arising on more than one docket.” Id. at 977. Shay 

filed separate notices of appeal, at 836 WDA 2021 and 864 WDA 2021, on July 

30, 2021. We have consolidated Shay’s appeals sua sponte. See Order, 

7/30/21; see also Pa.R.A.P. 513. 
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Shay again violated the terms of his probation, and on March 15, 2011, 

Shay, represented by Attorney Lea Bickerton, Esquire, was resentenced to 

eight to sixteen months’ imprisonment, with an additional term of two years’ 

probation. On March 25, 2011, Attorney Bickerton filed a motion to reconsider 

sentence, which was denied. Shay did not file a direct appeal. On July 9, 

2011, Judge McDaniel paroled Shay.

On October 25, 2011, Shay filed his first pro se PCRA petition. On 

January 17, 2012, his court-appointed attorney, Scott Coffey, Esquire, filed 

an amended PCRA petition, requesting reinstatement of his appellate rights 

nunc pro tunc due to ineffective assistance of counsel. Attorney Coffey argued 

that Attorney Bickerton was ineffective for failing to file a requested direct 

appeal to this Court following the probation violation resentencing on March 

15, 2011. On May 15, 2012, Judge McDaniel granted Shay’s PCRA petition 

and reinstated his appellate rights, nunc pro tunc. On June 13, 2012, Shay 

filed a nunc pro tunc notice of appeal. On February 26, 2013, this Court 

affirmed Shay’s judgment of sentence. Commonwealth v. Shay, 925 WDA 

2012 (Pa. Super. 2013) (unpublished memorandum opinion). On March 23, 

2013, Shay filed a petition for allowance of appeal with the Supreme Court of 

Pennsylvania. On May 26, 2013, the Supreme Court entered an order noting 

that it had discontinued the appeal. Praecipe for Discontinuance, 5/26/13, at 

1.
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On March 18, 2013, Shay filed another pro se PCRA petition. On June 

5, 2013, Attorney Coffey subsequently filed a Turner/Finley2 no-merit letter 

and petition to withdraw. On June 18, 2013, the Honorable Jill E. Rangos3

dismissed Shay’s petition without a hearing, see Pa.R.Crim.P. 907, concluding 

it was untimely. Shay did not appeal from this order.

On October 29, 2013, Shay attended a third probation violation hearing 

for failing to register as a sex offender and other technical probation violations. 

Judge Rangos revoked his probation and resentenced him to an aggregate 

term of six to thirteen years’ imprisonment. On October 30, 2013, the Office 

of the Public Defender of Allegheny County filed a motion to reconsider 

sentence, which was denied on November 14, 2013. On November 26, 2013, 

Assistant Public Defender John Ciroli, Esquire, filed a notice of appeal. On July 

10, 2014, this Court issued a notice of discontinuance, acknowledging that the 

appeal had been discontinued. Praecipe for Discontinuance, 7/10/14, at 1.

On November 14, 2013, Shay filed another pro se PCRA petition. On 

March 12, 2014, Shay filed a motion to withdraw the petition, which Judge 

Rangos granted on March 14, 2014. 

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2 See Pennsylvania v. Finley, 481 U.S. 551 (1987); Commonwealth v. 

Turner, 544 A.2d 927 (Pa. 1988).

3 On December 3, 2012, Judge McDaniel recused, and the case was reassigned 

to Judge Rangos.
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On September 9, 2014, Shay filed yet another pro se PCRA petition, 

challenging the legality of the six-to-thirteen-year sentence imposed at the 

October 29, 2013 probation violation hearing. The PCRA court appointed 

counsel, and, on December 18, 2014, counsel filed an amended PCRA petition 

on behalf of Shay. Counsel argued that Shay was not awarded the proper 

credit for time served, and, accordingly, his sentence was illegal because it 

exceeded the statutory maximum. On March 16, 2015, Judge Rangos 

awarded Shay an additional 185 days of credit for time served for the period 

of October 2, 2009 to April 5, 2010.

On April 1, 2015, Shay filed a counseled appeal to this Court challenging 

the legality of his sentence. In his Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal, Shay argued that he was entitled to more 

than 185 days of time credit awarded by the trial court, and, thus, his sentence 

was illegal. However, on June 1, 2015, counsel filed a notice of intent to file 

an Anders4 brief on the time credit issue. On July 15, 2015, Judge Rangos 

filed a Pa.R.A.P. 1925(a) opinion requesting this Court vacate the March 16, 

2015 sentencing order and remand the case back to the trial court for a 

resentencing hearing. On September 16, 2015, we vacated the March 16, 

2015 judgment of sentence and remanded the case to the trial court for 

resentencing. Order, 9/16/15, at 1. On December 11, 2015, Judge Rangos 

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4 See Anders v. California, 386 U.S. 738 (1967).
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vacated the sentence imposed on October 29, 2013, and resentenced Shay to 

an aggregate term of six to twelve years’ imprisonment. Judge Rangos noted 

that the March 16, 2015 order granting 185 days of time credit was still in 

effect.

On February 24, 2016, Shay filed another pro se PCRA petition in the 

form of a motion for time credit. On December 22, 2016, the PCRA court 

appointed new counsel, who filed an amended petition. Attorney Santoriella 

argued that Shay’s sentence was illegal and his former PCRA counsel was 

ineffective for failing to raise that claim in a post-sentence motion. On May 

24, 2017, Judge Rangos denied Shay’s PCRA petition as having been 

previously litigated on December 11, 2015.

On September 1, 2017, Shay filed yet another pro se PCRA petition. On 

July 11, 2018, Judge Rangos dismissed the petition as time-barred after 

appointed counsel had filed a Turner/Finley no-merit letter. On September 

25, 2018, Shay filed another pro se PCRA petition, which he titled as a motion 

for correction of sentence. On January 9, 2019, Judge Rangos dismissed that 

petition, noting that the petition was untimely, that no timeliness exception 

applied, and that the “issue of time credit ha[d] been previously litigated.” 

See Order Denying PCRA Petition, 1/9/19.

On August 14, 2019, the Commonwealth filed a motion for time credit, 

acknowledging that Shay did not receive time credit for the period of time 

between sentencing hearings from October 29, 2013 to December 11, 2015. 
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On December 24, 2019, Shay filed a pro se motion for correction of sentence, 

stating that the Department of Corrections (DOC) advised him that Judge 

Rangos forwarded the original October 29, 2013 sentencing order that was 

vacated and replaced by the December 11, 2015 sentencing order. Thus, the 

DOC refused to credit the time. Shay requested that Judge Rangos send the 

December 11, 2015 sentencing order that awarded time credit from 

September 12, 2012 to October 29, 2013 to the DOC. On January 8, 2020, 

Judge Rangos attached several previous orders addressing the issue of time 

credit and directed that they be forwarded to the DOC.

On June 10, 2020, Shay filed a pro se motion for time served. On June 

16, Shay filed a motion to revise the November 4, 2019 sentencing order. On 

July 15, 2020, Judge Rangos issued a corrected sentencing order granting 

time credit of 406 days for the period from September 19, 2012 to October 

29, 2013.

From July 24, 2020 to August 21, 2020, Shay filed two more pro se 

motions for time served and one to enforce such motions . On March 4, 2021, 

Judge Rangos issued an order addressing the various motions, stating:

[Shay] filed a Motion for Time Served on 8/24/20, which this 

[c]ourt treated as [a] PCRA Petition, and granted it to the extent 

that this [c]ourt found as follows: that at [No.] 290-2006, [Shay] 

is entitled to time credit for the following time periods: 9/19/2012 

– 12/11/2015, and 10/2/2009 – 3/30/2010, a total of 1380 days; 

and at [No.] 918-2007, [Shay] is entitled to time credit for the 

following time periods: 9/19/2012 – 12/11/2015, and 3/31/2010 
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– 4/5/2010, a total of 1186 days. On November 6, 2020,[5]this 

[c]ourt entered orders correcting the 10/29/13 [o]rders of [c]ourt 

to include the time credits listed above. [Shay] is not entitled to 

any further time credit or further relief.

Order, 3/4/21. Shay filed a notice of appeal from this order, which this Court 

quashed on April 21, 2021, for failure to file a Rule 1925(b) statement.6 See 

Order, 4/21/21.

On July 1, 2021, Shay filed a pro se motion for time credit of 379 days, 

which Judge Rangos denied on July 6, 2021. Judge Rangos treated this motion 

as a serial PCRA petition, stating all time credit issues had been addressed 

and disposed of in the March 4, 2021 order. Further, the court explained that 

Shay had had multiple opportunities to fully litigate the issues and any such 

further attempts were barred by res judicata.

On July 13, 2021, Shay filed a timely notice of appeal a notice from the 

July 6, 2021 order. In his Rule 1925(b) statement, Shay claimed that the trial 

court erred “in failing to grant additional time credit of 379 days.” Pa.R.A.P 

1925(b) Statement, 7/30/21, at 2. On August 16, 2021, Judge Rangos filed 

a Rule 1925(a) opinion wherein she explained that issues of time credit were 

previously litigated and waived and barred from being raised under the 

doctrine of res judicata. See 42 Pa.C.S. § 9544. Shay raises the following 

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5 Although not necessary to our disposition, we are unable to locate the 

November 6, 2020 order in the record before us.

6 Shay also indicated his desire to discontinue the appeal.
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issue on appeal: “Did the [PCRA] court err[] when it failed to credit all time 

spent in custody in the Allegheny County Jail for previous probation violations 

[after] the revocation of his probation and imposing a state sentence?” Brief 

for Appellant, 1/3/22, at 6.

Our standard and scope of review on appeal from a denial of PCRA relief 

is limited to “whether the PCRA court’s findings of fact are supported by the 

record, and whether its conclusions of law are free from legal error.” See 

Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (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 PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121, 

131 (Pa. 2012) (citation omitted). The PCRA court’s credibility determinations 

that are supported by the record are binding. Commonwealth v. Spotz, 18 

A.3d 244, 259 (Pa. 2011). Nevertheless, we “appl[y] a de novo standard of 

review to the PCRA court’s legal conclusions.”  Id. Further, there is no

absolute right to a PCRA hearing, and we review a dismissal “to determine 

whether the PCRA court erred in concluding that there were no genuine issues 

of material fact and in denying relief without an evidentiary hearing.” 

Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015) (en 

banc) (citation omitted).

Under the PCRA, all petitions “shall be filed within one year of the date 

the judgment [of sentence] becomes final.” 42 Pa.C.S. § 9545(b)(1). A 
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judgment of sentence becomes final “at the conclusion of direct review . . . or 

at the expiration of time for seeking the review.” Id. at (b)(3). The PCRA’s 

timeliness requirements are jurisdictional in nature, and a court may not 

address the merits of the issues raised if the PCRA petition was not timely 

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

Here, Shay was resentenced on October 29, 2013, to six to thirteen 

years’ imprisonment, following his third probation violation hearing. On 

October 30, 2013, the Office of the Public Defender filed a motion to reconsider 

the sentence, which was denied on November 14, 2013. On November 26, 

2013, Shay filed a timely notice of appeal to this Court. However, this appeal 

was discontinued on July 10, 2014. Since Shay discontinued his appeal, his 

judgment of sentence became final on July 10, 2014. See Commonwealth 

v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008); see also 

Commonwealth v. Conway, 706 A.2d 1243 (Pa. Super. 1997) (judgment of 

sentence final for PCRA purposes when appeal is discontinued voluntarily). 

Accordingly, Shay had until July 10, 2015 to file any and all PCRA petitions.

Shay’s instant pleading, a motion for time credit, was filed on July 1, 

2021, which Judge Rangos properly construed as a PCRA petition. See

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) (“any 

petition filed after the judgment of sentence becomes final will be treated as 
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a PCRA petition”) (citation omitted).7 Accordingly, it was filed six years after 

the deadline for filing a timely PCRA petition and, thus, is patently untimely. 

See 42 Pa.C.S. § 9545(b)(3). 

However, a PCRA petition may be filed beyond the one-year time period 

if the petitioner pleads and proves one of the following three exceptions: 

(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. 

Id. at § 9545(b)(1)(i-iii). Any petition attempting to invoke these 

exceptions “shall be filed within 60 days of the date the claim could have 

been presented.”8 Id. at § 9545(b)(2). The petitioner has the burden 

of alleging and proving one of the three timeliness exceptions. Id.

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7 Additionally, a challenge to the legality of a trial court’s alleged failure to 

award credit for time served presents a cognizable claim in PCRA proceedings. 

Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa. Super. 2014).

8 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days 

(i.e., December 24, 2018), extending the time for filing from 60 days of the 

date the claim could have been first presented, to one year. The amendment 

applies to claims arising on December 24, 2017, or thereafter. See Act 2018, 

Oct. 24, P.L. 894, N. 146, § 3. Instantly, Shay’s claim originated, at the latest, 

in 2010, well before December 24, 2017, and therefore, the original 60-day 

time limit applies.
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Shay claims he is entitled to time credit for the following periods 

of time served in the Allegheny County Jail.

1. December 10, 2005 – December 16, 2005 = 6 days

2. November 29, 2006 – May 25, 2007 = 178 days

3. October 28, 2008 – November 6, 2008 = 9 days

4. October 2, 2009 – April 5, 2010 = 186 days

Total = 379 days

Brief for Appellant, 1/3/22, at 9. However, Shay makes no attempt to 

satisfy an exception to the time bar. Rather, Shay merely avers that 

the Allegheny County Jail records will reflect that the mentioned dates 

were served in this matter. Id. 

As noted, Shay fails to plead and prove any of the exceptions to 

the PCRA time-bar. See Commonwealth v. Fowler, 930 A.2d 586, 

592 (Pa. Super. 2007) (“although legality of sentence is always subject 

to review within the PCRA, claims must still first satisfy the PCRA’s time 

limits or one of the exceptions thereto”) (emphasis added). Accordingly, 

Shay’s petition is time-barred, and we affirm the PCRA court’s dismissal 

of the petition.9 See Albrecht, supra. 

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9 Moreover, to the extent that Shay takes issue with the DOC’s computation 

of his time credit, his recourse is to file an action in the Commonwealth Court. 

See Heredia, 97 A.3d at 395 (appropriate vehicle to challenge DOC’s time 

credit computations is an original action in Commonwealth Court).
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Based on the foregoing, we affirm the PCRA court’s dismissal of 

Shay’s PCRA petition.10

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/29/2022 

____________________________________________

10 In addition to the timeliness requirements of the PCRA, Shay must also be 

eligible for relief under the statute. See 42 Pa.C.S. § 9543(a)(3) (“To be 

eligible for relief under this subchapter, the petitioner must plead and prove 

by a preponderance of the evidence . . . [t]hat the allegation of error has not 

been previously litigated[.]”). A specific issue has been previously litigated if: 

“it has been raised and decided in a proceeding collaterally attacking the 

conviction or sentence.” Id. at § 9544(a)(3). Here, Shay has previously 

litigated issues of time credit for 12/10/05 – 12/16/05, 11/29/06 – 5/25/07, 

10/28/08 – 11/6/08, and 10/2/09 – 4/5/10, in prior post-conviction filings, so 

he is precluded from raising this claim for these time periods in the instant 

proceeding. Specifically, on December 18, 2014, Shay raised the issue of time 

credit for the above periods. On March 16, 2015, Judge Rangos awarded Shay 

185 days of time credit for the period of 10/2/09 – 4/5/10. On June 10, 2020, 

Shay filed a motion for time served and again requested credit for these time 

periods in addition to a few other periods. Judge Rangos awarded time credit 

for some of the dates provided but explicitly denied credit for the time periods 

at issue in the instant pleading. Shay again raised the issue of time credit for 

these periods on July 24 and August 21, 2020, which Judge Rangos addressed 

in her opinion on March 4, 2021. Accordingly, the issue of time credit for the 

above periods has been litigated multiple times and cannot be raised again. 

Cf. Commonwealth v. Peterkin, 722 A.2d 638, 642-43 (Pa. 1998) (“At 

some point[,] litigation must come to an end. The purpose of law is not to 

provide convicted criminals with the means to escape well-deserved sanctions, 

but to provide a reasonable opportunity for those who have been wrongly 

convicted to demonstrate the injustice of their conviction.”).