J-S58011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
                 v.                         :
                                            :
                                            :
 MICHELLE LIN BUNCH                         :
                                            :
                      Appellant             :   No. 249 WDA 2019

           Appeal from the PCRA Order Entered January 11, 2019
             In the Court of Common Pleas of Jefferson County
            Criminal Division at No(s): CP-33-CR-0000484-2008


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.:                     FILED DECEMBER 13, 2019

      Michelle Lin Bunch appeals, pro se, from the order dismissing her third

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546, as untimely. Bunch argues that her facially untimely PCRA

petition was entitled to review under the newly discovered fact exception to

the PCRA’s time-bar, 42 Pa.C.S.A. § 9545(b)(1)(ii). After careful review, we

conclude Bunch is not entitled to relief.

      On April 6, 2009, Bunch entered a nolo contendere plea to one count

each of involuntary deviate sexual intercourse (“IDSI”) and incest. She was

sentenced to an aggregate ten to twenty years’ incarceration plus a

consecutive ten years’ probation. She did not file a post-sentence motion or

direct appeal.
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      On March 12, 2010, Bunch filed, pro se, her first PCRA petition, asserting

there was a lack of evidence to support her convictions. Counsel was

appointed who subsequently filed a petition to withdraw along with a no-merit

letter pursuant to Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.

2006). Based on the allegations made by counsel in the no-merit letter, the

PCRA court issued a notice of intent to dismiss the petition pursuant to

Pa.R.A.P. 907 and subsequently dismissed the petition.

      On September 19, 2011, Bunch filed a “motion for restoration of

appellate rights nunc pro tunc” contending there was evidence of her

innocence that seemed to “just up and disappear,” again arguing there was a

lack of evidence to support her convictions, and that she had still not received

the polygraph exam she requested. The court denied the motion.

      On October 18, 2018, Bunch filed her second PCRA petition, asserting

she had discovered new evidence in the form of an excerpt from a Facebook

conversation between the victim and a friend in which the victim stated “If

Michelle confesses what she did she [will] get out early but she won’t [and] I

don’t blame her [because] she didn’t do what she did.” PCRA petition,

10/18/2018, at 3. The PCRA court issued notice of its intent to dismiss the

petition, concluding Bunch failed in her attempt to invoke the newly discovered

fact exception to overcome the PCRA’s time-bar. Specifically, the PCRA court

found Bunch failed to allege the date she received the Facebook conversation,

thereby not satisfying the statutory requirement that an appellant must allege


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and prove that she proffered the new facts within sixty days of when she first

learned about them. The PCRA court also found the “new facts” were merely

vague statements that lacked evidentiary value.

       Bunch responded to the notice of intent to dismiss by claiming the soon-

to-be effective amendment to 42 Pa.C.S.A. § 9545(b)(1),1 increased the time

in which a petitioner must present her new facts after learning of them from

sixty days to one year. Bunch argued that the expanded time limit applied to

her and therefore her petition should not be dismissed. The PCRA court

dismissed the PRCA petition, noting the amendment had not yet taken effect

and as such did not apply to her current petition. The court further noted that

Bunch could file another petition alleging new facts once the amendment took

effect.

       On January 10, 2019, Bunch filed her third PCRA petition, re-asserting

her new evidence claim based on the Facebook messages, but this time

asserting she learned of them in June of 2017. The PCRA court issued notice

of its intent to dismiss Bunch’s petition as untimely, again finding she failed in

her attempt to invoke the PCRA’s newly discovered fact exception to overcome

the PCRA’s time-bar. The PCRA court noted that Bunch indicated in her own


____________________________________________


1 On October 24, 2018, the General Assembly amended section 9545(b)(2) of
the PCRA statute to expand the time for filing a petition from sixty days to one
year from the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146(S.B. 915), effective December 24, 2018.
Importantly, the amendment applies only to claims arising on or after
December 24, 2017. See id.

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handwriting that she learned of the Facebook messages in June of 2017,

eighteen months prior, beyond the time frame in which the court would have

jurisdiction to address the merits of her claim.

      Bunch did not file a response. Instead, she filed a premature appeal to

this Court, which was perfected once the PCRA court entered its order denying

Bunch’s   third   PCRA   petition.   See   Pa.R.A.P.   905(a)(5);   see     also

Commonwealth v. Swartzfager, 59 A.3d 616, 618 n.3 (Pa. Super. 2012)

(providing that a notice of appeal filed after the issuance of a Pa.R.A.P. 907

notice but before the entry of an appealable order shall be treated as filed

after the appealable order is entered).

      Prior to reaching the merits of Bunch’s claims on appeal, we must first

consider the timeliness of her PCRA petition. See Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence becomes final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration of
      the time for seeking such review. The PCRA’s timeliness
      requirements are jurisdictional; therefore, a court may not
      address the merits of the issues raised if the petition was not
      timely filed. The timeliness requirements apply to all PCRA
      petitions, regardless of the nature of the individual claims raised
      therein. The PCRA squarely places upon the petitioner the burden
      of proving an untimely petition fits within one of the three
      exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and

footnote omitted).


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      Since Bunch did not file a post-sentence motion or a direct appeal, her

judgment of sentence became final on October 2, 2009, when her time for

seeking direct review with this Court expired. See 42 Pa.C.S.A. § 9545(b)(3)

(judgment of sentence becomes final “at the conclusion of direct review … or

at the expiration of time for seeking the review”). The instant petition – filed

more than nine years later – is patently untimely. Thus, the PCRA court lacked

jurisdiction to review Bunch’s petition unless she was able to successfully

plead and prove one of the statutory exceptions to the PCRA’s time-bar. See

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      The PCRA provides three exceptions to its time-bar:

      (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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). For claims arising prior to December 24,

4017, a petitioner asserting one of these exceptions must file a petition within

sixty days of the date the claim could have first been presented. See 42

Pa.C.S.A. § 9545(b)(2). Exceptions to the time-bar must be pled in the




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petition and may not be raised for the first time on appeal. See

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007).

     As the trial court correctly indicated, Bunch admitted herself that she

learned of the Facebook messages (i.e. newly discovered facts) in June of

2017. Bunch did not file the instant PCRA petition until one and a half years

later on January 10, 2019. Therefore, the PCRA court properly concluded

Bunch’s PCRA petition was untimely and does not fall under an exception to

the PCRA time-bar. We affirm the PCRA court’s order dismissing the petition.

     Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2019




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