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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DENNIS FOY

Appellant No. 355 WDA 2015

Appeal from the PCRA Order January 22, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0010528-1987 

 CP-02-CR-0010548-1987 

 CP-02-CR-0010549-1087

BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED OCTOBER 22, 2015

Dennis Foy appeals pro se from an order dismissing his petition 

seeking relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 

9541 et seq. We affirm.

Between February and August of 1987, Foy broke into the homes of 

four elderly women and raped each woman in her bed. At the beginning of 

each attack, Foy covered the victim’s head with a blanket and tied her hands 

and feet. 

On April 5, 1988, a jury found Foy guilty of multiple counts of rape and 

burglary and one count of involuntary deviate sexual intercourse at the 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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above caption numbers. On January 3, 1989, the trial court sentenced Foy 

to an aggregate sentence of 100-200 years’ imprisonment. Foy filed a 

motion for reconsideration of sentence, which the court denied. Foy filed a 

timely appeal, and this Court affirmed his judgment of sentence. 

Commonwealth v. Foy, 576 A.2d 366 (Pa.Super.1990). The Supreme 

Court granted Foy’s petition for allowance of appeal but subsequently 

affirmed his judgment of sentence. Commonwealth v. Foy, 612 A.2d 1349 

(Pa.1992). 

In 1994, Foy filed a PCRA petition, which he subsequently amended 

twice through counsel. On December 10, 2007, the PCRA court denied PCRA 

relief. Foy filed a timely appeal. On May 27, 2010, this Court affirmed at 

173 WDA 2008. The Supreme Court denied Foy’s petition for allowance of 

appeal.

In 2012, Foy filed another PCRA petition, which the PCRA court 

dismissed without a hearing later that year. Foy did not appeal.

On October 21, 2014, Foy filed his third PCRA petition, the petition 

presently in question, claiming that his sentence exceeded the lawful 

maximum under Alleyne v. United States, 133 S.Ct. 2151 (2013), and 

Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc).1 On 

____________________________________________

1 Alleyne held that under the Sixth Amendment, any fact that increases a 

mandatory minimum sentence must be submitted to the jury and found 

beyond a reasonable doubt. Id., 133 S.Ct. at 2155. In Newman, this 

(Footnote Continued Next Page)
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November 14, 2014, the PCRA court issued a notice of intent to dismiss 

Foy’s petition without a hearing.2 On January 22, 2015, the PCRA court 

entered an order dismissing the petition. On February 19, 2015, Foy mailed 

a timely notice of appeal.3 Both Foy and the PCRA court complied with 

Pa.R.A.P. 1925.

Foy raises one issue in this appeal:

Whether the [PCRA] court conferred subject matter jurisdiction 

to entertain and reach merits review of the claims advanced 

therein under the Due Process Clause of the Fifth Amendment 

and the notice and jury trial guarantees of the Sixth 

Amendment, any fact (other than a prior conviction) that 

increases the maximum penalty for a crime must be charged in 

the indictment, submitted to a jury, and proven beyond a 

reasonable doubt. [T]he [PCRA] court erred in failing to grant 

relief where [Foy’s] state and federal constitutional rights to a 

fundamentally fair sentencing hearing and to due process of law 

were violated when the trial judge failed to articulate legally 

(Footnote Continued) _______________________

Court held that 42 Pa.C.S. § 9712.1, which requires a mandatory minimum 

sentence for certain drug offenses committed with firearms, is 

unconstitutional under Alleyne. Id., 99 A.3d at 99, 103.

2 The PCRA court did not appoint counsel to represent Foy. In a second or 

subsequent PCRA petition, the court must appoint counsel when the 

petitioner satisfies the court that he is unable to afford or procure counsel 

and an evidentiary hearing is necessary to resolve the issue(s) in his 

petition. Pa.R.Crim.P. 904(D). The court must also appoint counsel when 

the interests of justice require it. Pa.R.Crim.P. 904(E). For the reasons 

given below, Foy does not satisfy Rule 904(D) or (E), so he was not entitled 

to counsel during proceedings on this petition.

3 The record reflects that on February 19, 2015, Foy handed his notice of 

appeal to prison officials for mailing. Under the prisoner mailbox rule, a pro 

se notice of appeal from the denial of PCRA relief is deemed filed when the 

petitioner hands the notice to prison officials. Commonwealth v. Ousley, 

21 A.3d 1238, 1242 n. 3 (Pa.Super.2011). 
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sufficient reasons for the imposition of minimum and maximum 

sentences that were as severe as the law permitted and for all 

the sentences to be served consecutively rather than 

concurrently: [Foy’s] due process rights were violated when the 

trial judge used factors, (other than a prior conviction), to justify 

his rationale for the severity of the minimum and maximum 

sentences the court imposed in violation of appellant’s due 

process and fundamental fairness rights.

Brief for Appellant, at 4.

Our standard of review is well-settled:

We review an order dismissing a petition under the PCRA in the 

light most favorable to the prevailing party at the PCRA level. 

This review is limited to the findings of the PCRA court and the 

evidence of record. We will not disturb a PCRA court’s ruling if it 

is supported by evidence of record and is free of legal error. This 

Court may affirm a PCRA court’s decision on any grounds if the 

record supports it. We grant great deference to the factual 

findings of the PCRA court and will not disturb those findings 

unless they have no support in the record. However, we afford 

no such deference to its legal conclusions. Further, where the 

petitioner raises questions of law, our standard of review is de 

novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183–84 (Pa.Super.2012)

(some citations and footnote omitted).

Before addressing the merits of Wright’s claims, we must first consider 

the timeliness of his PCRA petition, because it implicates the jurisdiction of 

both this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d 

44, 52 (Pa.Super.2011). “Pennsylvania law makes clear that no court has 

jurisdiction to hear an untimely PCRA petition.” Id. To “accord finality to 

the collateral review process[,]” the PCRA “confers no authority upon this 

Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]” 
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Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). “It is undisputed 

that a PCRA petition must be filed within one year of the date that the 

judgment of sentence becomes final.” Commonwealth v. Hernandez, 79 

A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1). A judgment of 

sentence “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.” 42 Pa.C.S. § 9545(b)(3). “This time requirement is mandatory and 

jurisdictional in nature, and the court may not ignore it in order to reach the 

merits of a petition.” Id. “Without jurisdiction, we simply do not have the 

legal authority to address the substantive claims.” Commonwealth v. 

Seskey, 86 A.3d 237, 241 (Pa.Super.2014). 

A facially untimely petition may be received, however, where any of 

the PCRA’s three limited exceptions to the PCRA time bar are met. 

Hernandez, 79 A.3d at 651. These exceptions include:

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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). The petitioner maintains the burden of 

pleading and proving that one of these exceptions applies. Commonwealth 

v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa.2008).

Further, 

[a] petition invoking one of these exceptions must be filed within 

sixty days of the date the claim could first have been presented. 

42 Pa.C.S. § 9545(b)(2). In order to be entitled to the 

exceptions to the PCRA’s one-year filing deadline, the petitioner 

must plead and prove specific facts that demonstrate his claim 

was raised within the sixty-day time frame under section 

9545(b)(2). 

Hernandez, 79 A.3d at 651-652. 

Finally, a heightened standard applies to a second or subsequent PCRA 

petition to avoid “serial requests for post-conviction relief.” 

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). “A second or 

subsequent request for relief under the PCRA will not be entertained unless 

the petitioner presents a strong prima facie showing that a miscarriage of 

justice may have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248, 

1251 (Pa.2006). In a second or subsequent post-conviction proceeding, “all 

issues are waived except those which implicate a defendant’s innocence or 

which raise the possibility that the proceedings resulting in conviction were 

so unfair that a miscarriage of justice which no civilized society can tolerate 

occurred.” Commonwealth v. Williams, 660 A.2d 614, 618 

(Pa.Super.1995).
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Foy’s judgment of sentence became final on December 17, 1992, the 

deadline for appealing to the United States Supreme Court from the 

Pennsylvania Supreme Court’s decision in his direct appeal. His present 

PCRA petition, filed almost 22 years after his judgment of sentence became 

final, is facially untimely. Thus, Foy must plead and prove that his petition 

falls under one of the exceptions to the one year statute of limitations within 

section 9545(b)(1)(i)-(iii). He fails to meet this burden. He does not plead 

or prove that government interference prevented him from filing a timely 

PCRA petition. He claims that Alleyne and Newman constitute “newly 

discovered facts” under section 9545(b)(1)(ii), but our Supreme Court has 

held that decisional law cannot constitute “newly discovered evidence” for 

purposes of this subsection. Commonwealth v. Watts, 23 A.3d 980, 986-

87 (Pa.2011). Nor does Foy satisfy subsection 9545(b)(1)(iii), because 

Alleyne and its progeny do not apply retroactively to cases on 

postconviction review. Commonwealth v. Riggle, 119 A.3d 1058 

(Pa.Super.2015).

Therefore, the PCRA court properly dismissed Foy’s third PCRA 

petition.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/2015