J-S05012-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LEE ALAN CHEW 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 894 WDA 2018

Appeal from the PCRA Order Entered May 9, 2018

In the Court of Common Pleas of Jefferson County 

Criminal Division at No(s): CP-33-CR-0000214-2016

BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 15, 2019

Appellant, Lee Alan Chew, appeals pro se from the order entered in the 

Jefferson County Court of Common Pleas, dismissing his untimely petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. After careful review, we affirm.

We briefly recount the relevant facts and procedural history of this case. 

Though the certified record in this matter is imprecise as to the date and 

details of Appellant’s underlying conviction, we are able to glean that Appellant 

was convicted of involuntary deviate sexual intercourse in 2006. He was later 

subject to sex offender registration under the Sexual Offender Registration 

and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.14, 9799.15. 

On June 15, 2016, Appellant pled guilty to one count of failure to comply 

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

 Retired Senior Judge assigned to the Superior Court.
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with sexual offender registration requirements. The court imposed a sentence 

of four to ten years’ incarceration. Appellant did not file a direct appeal;

instead, he filed a timely pro se PCRA petition on February 8, 2017. The PCRA 

court appointed counsel, who filed a Turner/Finley1 no-merit letter and was 

permitted to withdraw. The court issued notice of its intent to dismiss the 

petition without a hearing pursuant to Pa.R.Crim.P. 907, and later dismissed 

it. Appellant did not appeal that ruling. 

Appellant then filed the instant pro se petition, his second, on July 31, 

2017. In it, Appellant claimed the Pennsylvania Supreme Court’s decision in 

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), determined 

retroactive application of sexual offender registration requirements under 

SORNA to be unconstitutionally punitive. Appellant averred his recent 

discovery of the Muniz case constituted newly-discovered evidence, and thus 

an exception to the PCRA’s time-bar. The PCRA court issued Rule 907 notice. 

Appellant objected to the notice, but the court ultimately dismissed his 

petition. Appellant filed a timely notice of appeal.2 This case is now properly 

before us. 

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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2 The PCRA court’s order dismissing Appellant’s petition was entered on May 

9, 2018. Appellant filed a notice of appeal on Monday, June 11, 2018. See

Pa.R.A.P. 903(a) (timely notice of appeal must be filed within thirty days); 

see also 1 Pa.C.S.A. § 1908 (when the thirtieth day of an appeal period falls 

on Saturday or Sunday, that day shall be omitted from the timeliness 

computation). Thus, his notice of appeal was timely filed. 
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Before we may review the merits of Appellant’s argument, we must first 

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

102 A.3d 988, 992 (Pa. Super. 2014). The PCRA’s timeliness requirements are 

jurisdictional; we may not address the merits of issues raised in untimely 

petitions. See id.

“A PCRA petition, including a second or subsequent one, must be filed 

within one year of the date the petitioner’s judgment of sentence became final, 

unless he pleads and proves one of the three exceptions outlined in 42 

Pa.C.S.[A.] § 9545(b)(1).” Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 

2012) (citation and footnote omitted). A judgment of sentence becomes final 

at the conclusion of direct review, or at the expiration of time for seeking such 

review. See id., at 17. 

Here, Appellant’s judgment of sentence became final on July 15, 2016, 

at the expiration of time for seeking direct review with this Court. See

Pa.R.A.P. 903(a). Thus, he had until July 15, 2017 to timely file his PCRA 

petition. Appellant filed the instant petition on July 31, 2017. As it is facially 

untimely, the PCRA court lacked jurisdiction to review Appellant’s claims 

unless he successfully pled and proved one of the following statutory 

exceptions to the PCRA’s 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 
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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). A petitioner asserting one of these 

exceptions must file a petition within 60 days of the date the claim could have 

first been presented. See 42 Pa.C.S.A. § 9545(b)(2).3 “Exceptions to the timebar must be pled in the petition, and may not be raised for the first time on 

appeal.” See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 

2007) (citation omitted); see also Pa.R.A.P. 302(a) (providing that issues not 

raised before the lower court are waived and cannot be raised for the first 

time on appeal). 

In his PCRA petition, Appellant claimed Muniz amounted to newlydiscovered evidence in his case. However, this Court has repeatedly held that 

“judicial decisions do not constitute new ‘facts’ for purposes of the newlydiscovered evidence exception set forth in Section 9545(b)(1)(ii).” 

Commonwealth v. Kretchmar, 189 A.3d 459, 467 (Pa. Super. 2018) 

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3 On October 24, 2018, the General Assembly amended section 9545(b)(2) in 

order to extend the time for filing a petition from 60 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. However, this 

amendment applies only to claims arising one year before the effective date 

of this section, i.e., December 24, 2017, or thereafter. Appellant’s claim of 

“newly-discovered evidence” arose on July 19, 2017, when he received 

information regarding the Pennsylvania Supreme Court’s decision in Muniz. 

Therefore, the amendment is inapplicable to Appellant’s claim. 
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(citation omitted); see also Commonwealth v. Brandon, 51 A.3d 231, 235 

(Pa. Super. 2012). “New legal decisions can only overcome the PCRA’s 

timeliness requirements in the context of Section 9545(b)(1)(iii)[,]” the 

PCRA’s provision for new, retroactive constitutional rights. Kretchmar, 189 

A.3d at 467. 

And even if Appellant had presented his Muniz claim under the new 

constitutional right framework, as he does in his appellate brief, he would still

be due no relief. “Because Appellant’s PCRA petition is untimely ... he must 

demonstrate that the Pennsylvania Supreme Court has held that Muniz

applies retroactively in order to satisfy [S]ection 9545(b)(1)(iii).” 

Commonwealth v. Murphy, 180 A.3d 402, 405-406 (Pa. Super. 2018)

(citation and emphasis omitted). The Pennsylvania Supreme Court has yet to 

issue such a holding. Therefore, Appellant cannot rely on Muniz to meet the 

new constitutional right timeliness exception. Accordingly, as Appellant has 

failed to present an issue for relief, we affirm the PCRA court’s order dismissing 

his untimely petition.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/15/2019
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