J-S03042-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MELVIN BETHUNE, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 283 MDA 2023

Appeal from the PCRA Order Entered January 20, 2023

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0003317-1998

BEFORE: OLSON, J., NICHOLS, J., and BECK, J.

MEMORANDUM BY BECK, J.: FILED FEBRUARY 09, 2024

Melvin Bethune, Jr. (“Bethune”) appeals pro se from the order entered 

by the York County Court of Common Pleas dismissing his fourth petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”)1 without a hearing.2 

Because the petition is untimely filed and Bethune failed to establish a timebar exception, we affirm.

In a prior decision, this Court summarized the facts underlying 

Bethune’s convictions as follows:

[Bethune’s] conviction arose from the October 5, 1997 

shooting death of Raymond Clark, an innocent victim caught in 

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1

 42 Pa.C.S. §§ 9541-9546.

2

 Rule 907 of the Pennsylvania Rules of Criminal Procedure permits a PCRA 

court to dismiss a PCRA petition without a hearing if it finds “there are no 

genuine issues concerning any material fact and that the defendant is not 

entitled to post-conviction collateral relief, and no purpose would be served 

by any further proceedings.” Pa.R.Crim.P. 907(1). 
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the middle of a gang war. [Bethune] and co-defendant Tysheem 

Crocker [we]re members of a gang called the Cream Team. They 

participated in numerous illegal activities in York, including the 

sale of drugs in the Maple Street area. On the morning of the 

murder, several members of a rival gang, the Gods, surrounded a 

home in which members of the Cream Team were located. 

[Bethune] left the home, while the others remained inside. 

Gunfire soon erupted, although no one was injured. When 

[Bethune] returned, he told the group that several members of 

the Gods had assaulted him.

Thereafter, [Bethune] and Crocker decided to get even with 

Kendu Smith, aka Do-Work, the leader of the Gods. They went to 

New York City to recruit members for their plan, returned with 

reinforcements, and met at a motel on the evening of the murder. 

[Bethune] phoned a friend who lives on Maple Street and 

confirmed that Do-Work and some of the other Gods were “rolling 

dice” on Maple Street. The group decided to shoot Do-Work and 

anyone who was with him. [Bethune] specifically instructed the 

group “when we get there, take no prisoners.” (N.T. Trial, 1/11-

15/99, Vol. 1, at 349-350). The group then went to retrieve their 

guns, which were hidden in a friend’s home. After doing so, they 

split up and met in front of the dice game in which Do-Work was 

a participant.

Crocker approached Do-Work and the two exchanged 

words. Crocker then pulled out his firearm and put the gun to DoWork’s head. Although he tried to shoot, the gun jammed. At 

that point, someone in [Bethune’s] group fired a shot, and 

everyone began shooting. As the dice players scattered, 

Commonwealth witness Danny Steele and two other members of 

the Cream Team, one of whom is identified only as Corleone, ran 

down another street firing into the crowd. When the shooting 

stopped momentarily, the victim, Raymond Clark, tried to flee. As 

he did, Corleone shot and killed him. Clark was not a member of 

the Gods, but was participating in the dice game. There was 

testimony that none of the dice players were armed.

Commonwealth v. Bethune, 1946 MDA 2001, *1-2 (Pa. Super. Aug. 12, 

2002) (non-precedential decision) (citation omitted).
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Following trial, a jury convicted Bethune of first-degree murder and 

criminal conspiracy. On January 15, 1999, the trial court sentenced Bethune 

to the mandatory term of life in prison for the murder conviction and a 

concurrent term of twenty to forty years of incarceration for the conspiracy 

conviction. This Court affirmed his judgment of sentence and on May 24, 

2000, our Supreme Court denied his petition for allowance of appeal. 

Commonwealth v. Bethune, 595 MDA 1999 (Pa. Super. Dec. 7, 1999) (nonprecedential decision), appeal denied, 750 A.2d 364 (Pa. 2000).

In the years that followed, Bethune filed three PCRA petitions, none of 

which warranted relief. See Commonwealth v. Bethune, 1963 MDA 2012 

(Pa. Super. Jan. 14, 2013) (Order) (dismissing appeal relating to Bethune’s 

third PCRA petition for noncompliance with Pa.R.A.P. 3517); Commonwealth 

v. Bethune, 505 MDA 2010 (Pa. Super. Oct. 22, 2010) (non-precedential 

decision); Bethune, 1946 MDA 2001, appeal denied, 809 A.2d 952 (Pa. 

2003).3

On January 28, 2022, Bethune, through privately retained PCRA 

counsel, filed the instant PCRA petition, his fourth. The PCRA court issued 

notice of its intent to dismiss Bethune’s petition without a hearing pursuant to 

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3

 Bethune also filed two petitions for writ of habeas corpus in federal court. 

The federal district court denied relief on both petitions. Bethune v. 

Wenerowicz, No. 3:12-CV-0817, 2012 WL 6499348 (M.D. Pa. Dec. 13, 

2012); Bethune v. Vaughn, No. 3:03-CV-1667 (M.D. Pa. Nov. 19, 2004).
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Pa.R.Crim.P. 907, finding it untimely and that Bethune failed to establish an 

exception to the PCRA’s timeliness requirements. On January 20, 2023, the 

PCRA court dismissed the fourth petition. This appeal followed.4 

Bethune presents six questions for our consideration, but the threshold 

question we must address is whether Bethune’s fourth PCRA petition was 

timely filed or, alternatively, satisfies an exception to the statutory time bar. 

See Commonwealth v. Fantauzzi, 275 A.3d 986, 994 (Pa. Super. 2022) 

(“the timeliness of a PCRA petition is jurisdictional and [] if the petition is 

untimely, courts lack jurisdiction over the petition and cannot grant relief”). 

A petition for relief under the PCRA, including a second or subsequent 

petition, must be filed within one year of the date the judgment of sentence 

becomes final unless that petition alleges, and the petitioner proves, that an 

exception to the time limitation is met. 42 Pa.C.S. § 9545(b)(1)(i-iii). The 

exceptions to the one-year time bar 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;

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4

 On February 13, 2023, PCRA counsel sought to withdraw as counsel in the 

PCRA court. Petition to Withdraw as Counsel, 2/13/2023. The PCRA court 

denied the petition because counsel had not filed a notice of appeal or attached 

a signed statement from Bethune indicating he understood his rights and did 

not wish to appeal the dismissal of his fourth PCRA petition. Order, 

2/13/2023. After PCRA counsel filed the instant appeal, the PCRA court 

granted counsel’s petition to withdraw. Order Granting Petition to Withdraw 

as Counsel, 2/24/2023. As noted above, Bethune did not retain new counsel 

and instead proceeded pro se on appeal.
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(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. § 9545(b)(1)(i-iii). A PCRA petition invoking a statutory exception 

must be filed within one year of the date the claim could have been presented. 

Id., § 9545(b)(2). Additionally, to be eligible for PCRA relief, the petitioner 

must plead and prove that the allegation of error has not been previously

litigated or waived. Id., § 9543(a)(3). An issue has been previously litigated

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

conviction or sentence.” Id., § 9544(a)(3).

Bethune’s judgment of sentence became final on August 22, 2000, after 

our Supreme Court denied Bethune’s petition for allowance of appeal and the 

time to seek certiorari with the United States Supreme Court expired. 42 

Pa.C.S. § 9545(b)(3). To be timely, Bethune’s petition would have to have 

been filed by August 22, 2001; thus, the instant petition, filed on January 28,

2022, is patently untimely.

In an effort to satisfy an exception to the timeliness requirement, 

Bethune claims the applicability of sections 9545(b)(1)(i) (governmental 

interference) and (b)(1)(ii) (newly discovered facts). See PCRA Petition, 

1/28/2022, ¶¶ 27-28, 33 & Ex. A014-A015. With respect to newly discovered 
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facts, Bethune asserts he recently uncovered, through a private investigator, 

new information relating to the clerk who signed Bethune and co-defendant 

Crocker into the motel the night of the killing, Teri Flinchbaugh.5 Bethune’s 

Brief at 25-26, 33 (unpaginated); PCRA Petition, 1/28/2022, ¶¶ 3-4, 16, 27-

28. Specifically, he argues that the investigator’s November 29, 2021 report, 

which includes a statement by Flinchbaugh, reveals that Flinchbaugh did not 

start work until 11:00 p.m. that night, and thus shows Bethune was not at the 

motel at the time of the conspiratorial meeting to plan the murder. Bethune’s 

Brief at 25-26, 33 (unpaginated); PCRA Petition, 1/28/2022, ¶¶ 4, 27-28, 30-

32. 

The PCRA court rejected Bethune’s attempt to invoke the newly 

discovered facts exception, finding that Bethune previously litigated the same 

claim in his second PCRA petition. PCRA Court Order, 1/20/2023, at 1 (citing 

Rule 907 Notice, 12/28/2022, at 3-4) (unpaginated); see 42 Pa.C.S. 

§§ 9543(a)(3), 9544(a)(3).

The record reflects that in his second PCRA petition, filed in 2009, 

Bethune indeed sought relief under the newly discovered facts exception 

based on the time of Flinchbaugh’s shift on the night of the murder. PCRA 

Petition, 9/29/2009, ¶ 12. Therein, Bethune claimed he learned of 

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5

 She is now known as Teri Silar. To avoid confusion with the record, we refer 

to her as Flinchbaugh.
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Flinchbaugh through Crocker, attaching to his petition a February 24, 2007 

report by Crocker’s private investigator summarizing the investigator’s 

interview with Flinchbaugh and motel records from the night of the murder, 

which showed the time Flinchbaugh worked and included the night audit 

report/guest folio she prepared. Id., ¶ 12 & Exs. A, B, C-2. At the subsequent 

hearing on the second petition, at which Flinchbaugh testified, she stated that 

she always worked 11:00 p.m. to 7:00 a.m. as the night auditor and desk 

clerk and could not have checked anyone into the motel before 11:00 p.m. on 

the night of the murder. N.T., 3/1/2010, at 12-23; see also id. at Exs. 1

(Flinchbaugh’s employee time record on the night of the murder), 2 (the motel 

night audit report/guest folio on the night in question).

The PCRA court denied the relief requested in Bethune’s second petition

and this Court affirmed, concluding:

Bethune alleges, as he testified at the PCRA hearing, that the 

chronology of the murder of which he was convicted would be 

altered if the factfinder was apprised of [] Flinchbaugh’s testimony 

concerning co-defendant Crocker’s late check-in time at the Super 

8 Motel. Nevertheless, Bethune has offered no explanation of how 

or why Flinchbaugh’s testimony remained undisclosed for over ten 

years following trial; nor has he demonstrated, assuming a 

satisfactory explanation for the absence of Flinchbaugh’s 

testimony, that he came forward with the facts averred in that 

testimony within sixty days[6] of first discovering them. These 

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6

 The PCRA has since been amended to enlarge the sixty-day limitation to a 

period of one year. See Act of Oct. 24, 2018, P.L. 894, No. 146, § 2 (effective 

Dec. 24, 2018). The amendment applies only to claims arising on or after 

December 24, 2017. Id., §§ 3-4.
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deficiencies defeat any showing of timeliness under section 9545 

that Bethune might otherwise be able to make[.]

Bethune, 505 MDA 2010 at *5 (footnote added). 

Bethune’s assertion in his fourth petition that he only learned of 

Flinchbaugh’s existence upon receipt of the investigator’s November 29, 2021 

report is belied by the record. Not only were the facts upon which Bethune’s

claim is based known to him for more than a decade prior to the filing of the 

instant petition, he had previously litigated this precise claim in a prior PCRA 

petition. See 42 Pa.C.S. §§ 9543(a)(3), 9544(a)(3); Commonwealth v.

Watts, 23 A.3d 980, 986 (Pa. 2011) (stating that previously litigated claims 

are not cognizable under the PCRA). Therefore, Bethune’s attempt to 

implicate the newly discovered facts exception to the PCRA’s time limitation

fails.

Turning to the governmental interference exception, Bethune attempts 

to assert a Brady7 violation based upon the Commonwealth’s failure to inform 

him that it interviewed Flinchbaugh and its failure to turn over any notes of 

the interview or a folio of motel guest and phone records. Bethune’s Brief at 

25-27 (unpaginated); PCRA Petition, 1/28/2022, ¶ 33 & Ex. A014-A015. 

Bethune again asserts that he first learned of the alleged Brady violation in 

the investigator’s November 29, 2021 report. Id., ¶¶ 33-34. Bethune 

contends that this information was material to his defense because it 

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7

 Brady v. Maryland, 373 U.S. 83 (1963).
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contradicts trial testimony that he was at the motel when the conspiratorial 

meeting to plan the murder occurred and because it would show if and when 

any phone calls were made from the motel room as alleged at trial. Bethune’s 

Brief at 25-27 (unpaginated); PCRA Petition, 1/28/2022, ¶ 33.

The PCRA court rejected this claim based upon Bethune raising the same 

argument under the newly discovered facts exception in his second PCRA 

petition. PCRA Court Opinion, 3/31/2024, at 4. According to the PCRA court, 

it was previously litigated and thus did not entitle him to relief. Id.

The law is clear that a Brady violation may fall under the governmental 

interference exception to the PCRA’s time bar. Commonwealth v. AbuJamal, 941 A.2d 1263, 1268 (Pa. 2008). A petitioner seeking relief in an 

untimely PCRA petition based upon a Brady violation “must plead and prove

the failure to previously raise the claim was the result of interference by 

government officials, and the information could not have been obtained earlier

with the exercise of due diligence.” Id. (citation omitted).8 “Due diligence

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8

 We note that our Supreme Court has “acknowledge[d] that questions may 

endure about the appropriateness of a due diligence inquiry when analyzing 

timeliness under Section 9545(b)(1)(i) of the PCRA.” Commonwealth v.

Towles, 300 A.3d 400, 417 n.18 (Pa. 2023); id. at 418-21 (Donohue, J., 

concurring); id. at 421-22 (Wecht, J., concurring). At the time of this writing, 

however, it remains the law of this Commonwealth that a PCRA petitioner 

must plead and prove that knowledge of the Commonwealth’s Brady violation 

could not have been obtained earlier with the exercise of due diligence. Id.

at 413 n.14, 417 n.18; Abu-Jamal, 941 A.2d at 1268. Therefore, this Court 

must adhere to it. Commonwealth v. Foley, 38 A.3d 882, 892 (Pa. Super. 

2012) (stating that the Superior Court “has a duty and obligation to follow the 

(Footnote Continued Next Page)
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does not require perfect vigilance and punctilious care, but merely a showing 

the party has put forth reasonable effort” to obtain the information upon which 

a claim is based.” Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016)

(citation and quotation marks omitted).

Thus, assuming (without deciding) the Commonwealth’s failure to 

disclose the motel clerk’s interview or turn over motel records constituted a 

Brady violation,9 Bethune is not entitled to an indefinite period to raise the 

claim by invoking the government interference exception. As detailed above, 

Bethune has known of Flinchbaugh since at least 2009. See PCRA Petition, 

9/29/2009, ¶ 12 & Exs. A, B, C-2; N.T., 3/1/2010, at 12-23 & Exs. 1-2. 

Bethune now claims that it was not until November 29, 2021 – more than 

eleven years after Flinchbaugh testified at the hearing on his second PCRA 

petition – that he learned the Commonwealth failed to disclose that it 

interviewed her prior to trial. PCRA Petition, 1/28/2022, ¶¶ 33-34, Ex. A014-

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decisional law of the Supreme Court of Pennsylvania. The primary role of the 

Superior Court is to apply existing law to the cases that come before us.”) 

(internal quotation marks, brackets, and citations omitted).

9

 “In order for a defendant to establish the existence of a Brady violation, he 

must establish that there has been a suppression by the prosecution of either 

exculpatory or impeachment evidence that was favorable to the accused, and 

that the omission of such evidence prejudiced the defendant. 

Commonwealth v. Morris, 822 A.2d 684, 696 (Pa. 2003) (citation omitted). 

There is no Brady violation “where the parties had equal access to the 

information or if the defendant knew or could have uncovered such evidence 

with reasonable diligence.” Id. (citation omitted).
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015. Bethune provides no explanation of why he could not have discovered 

the Commonwealth’s failure to disclose information related to its interview 

with Flinchbaugh sooner in either his PCRA petition or in his brief before this 

Court.

10

 Indeed, he fails to recognize, let alone address, the lengthy time gap 

between when Flinchbaugh testified at his March 1, 2010 PCRA hearing and 

when he allegedly learned that she had been interviewed by the 

Commonwealth in the November 2021 investigator’s report.

Further, as discussed supra, Bethune previously pursued postconviction relief based on what time Flinchbaugh worked on the night of the 

killing and the timing of when he checked into the motel. Bethune’s attempt 

to recast this previously litigated argument as a governmental interference 

claim does not entitle him to relief. See Commonwealth v. Bond, 819 A.2d 

33, 39 (Pa. 2002) (stating the well-settled law that a PCRA petitioner cannot 

obtain review of previously litigated claims by presenting new theories of relief 

to relitigate them).

The majority of the remaining claims raised by Bethune on appeal sound 

in ineffective assistance of PCRA counsel. Bethune’s Brief at 16-29 

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10

 Ordinarily, failure to raise a claim before the PCRA court results in waiver. 

Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007) (“Any claim 

not raised in the PCRA petition is waived and not cognizable on appeal.”); 

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot 

be raised for the first time on appeal.”). However, we find waiver unnecessary 

here given our resolution of the due diligence claim and the Commonwealth’s 

failure to object to our consideration of this argument.
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(unpaginated). In Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), 

the Pennsylvania Supreme Court held that a “PCRA petitioner may, after a 

PCRA court denies relief, and after obtaining new counsel or acting pro se, 

raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, 

even if on appeal.” Id. at 401 (footnote omitted). The Bradley case, 

however, occurred in the context of a first, timely PCRA petition. See id. at 

384. “Nothing in Bradley creates a right to file a second [or subsequent] 

PCRA petition outside the PCRA’s one-year time limit as a method of raising 

ineffectiveness of PCRA counsel or permits recognition of such a right.” 

Commonwealth v. Stahl, 292 A.3d 1130, 1136 (Pa. Super. 2023); see also 

Bradley, 261 A.3d at 404, n.18 (rejecting the notion that “a petitioner’s 

‘discovery’ of initial PCRA counsel’s ineffective assistance [] constitute[s] a 

‘new fact’ that was unknown to petitioner, allowing such petitioner to 

overcome, in a successive petition, the PCRA’s time bar provision under the 

‘new fact’ exception”). 

As our analysis throughout this decision makes clear, this is an appeal 

from an untimely serial PCRA petition and Bethune fails to satisfy any 

exceptions to the statutory time bar. Therefore, this Court is without 

jurisdiction to decide Bethune’s claims of PCRA counsel’s ineffectiveness.

For the foregoing reasons, we affirm the PCRA court’s order dismissing 

his fourth PCRA petition without a hearing.

Order affirmed.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 02/09/2024