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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 24½ 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Super. 2001) (unpublished memorandum) (Foster I).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 Super. 2006) (unpublished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


____________________________________________
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 30th 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.



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