J-S20012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MATTHEW BENDEL,

Appellant No. 720 WDA 2015

Appeal from the PCRA Order May 4, 2015,

in the Court of Common Pleas of Allegheny County, 

Criminal Division, at No(s): CP-02-CR-0005192-2011.

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.

MEMORANDUM BY PANELLA, J. FILED MAY 06, 2016

Matthew Bendel appeals pro se from the order dismissing his second 

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

§§ 9541-9546, as untimely.1 We affirm.

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 Appellant filed his notice of appeal prematurely. Although the trial court 

dated its order denying Appellant’s PCRA petition on February 6, 2015, it 

was not entered onto the docket until May 4, 2015. See, e.g., 

Commonwealth v. Gordon, 652 A.2d 317, 320-21 (Pa. Super. 1994) 

(explaining that an order is not appealable until it is entered on the docket). 

See also Pa.R.Crim.P. 114; Pa.R.A.P. 903(a). Appellant filed his notice of 

appeal in the lower court on February 24, 2015. The premature filing of the 

notice of appeal does not affect the appeal. See Pa.R.A.P. 905(a)(5). We 

have amended the appeal paragraph to indicate the correct date.
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On November 9, 2011, Appellant entered a negotiated guilty plea to 

multiple counts of sex offenses that he perpetrated upon two minor females 

over the course of five years. The sexual encounters with the girls began 

when they were just thirteen years old.

The trial court sentenced Appellant in accordance with the plea 

agreement to a term of ten to twenty years of imprisonment for the first 

count, and no further penalty on the remaining sixteen counts. Appellant 

filed neither a post-sentence motion nor a direct appeal.

Appellant filed a timely, counseled PCRA petition, and the 

Commonwealth filed an answer. The PCRA court held an evidentiary hearing. 

By order entered September 18, 2013, the PCRA court denied relief.

Represented by new counsel, Appellant filed an appeal to this Court in 

which he claimed that the trial court erred in concluding that plea counsel 

was not ineffective for permitting him to plead guilty to crimes that were not 

supported by the factual record. In a memorandum filed on June 11, 2014, 

the Court affirmed the PCRA court’s order denying post-conviction relief. 

See Commonwealth v. Bendel, 1633 WDA 2013 (Pa. Super., filed June 

11, 2014) (unpublished memorandum). On November 18, 2014, our 

Supreme Court denied Appellant’s petition for allowance of appeal. See 

Commonwealth v. Bendel, 104 A.3d 1 (Pa. 2014) (Table).

Appellant filed his second PCRA petition pro se on January 5, 2015. 

The PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss the 

petition without a hearing. Appellant did not file a response. The PCRA court 
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later denied Appellant’s second PCRA petition as patently untimely. This 

appeal follows.

Appellant raises the following issue:

[1] Whether the PCRA court erred in dismissing 

Appellant’s pro se PCRA petition filed pursuant to Title 42 Pa.C.S. 

§9545(b)(1)(ii), §9545(b)(1)(iii), §9545(b)(2), and 

§9543(a)(2)(ii). Whereas [] Appellant made a strong prima 

facie showing that a miscarriage of justice occurred?

Appellant’s Brief at 5.

Our scope and standard of review is well-settled.

In PCRA appeals, our scope of review is limited to the findings of 

the PCRA court and the evidence on the record of the PCRA 

court’s hearing, viewed in the light most favorable to the 

prevailing party. Because most PCRA appeals involve questions 

of fact and law, we employ a mixed standard of review. We defer 

to the PCRA court’s factual findings and credibility 

determinations supported by the record. In contrast, we review 

the PCRA court’s legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 

2015) (internal citations and quotations omitted).

Appellant correctly notes that, because this is his second PCRA petition 

for post-conviction relief, he must meet a far more stringent standard. “A 

second or any subsequent post-conviction request for relief will not be 

entertained unless a strong prima facie showing is offered to demonstrate 

that a miscarriage of justice may have occurred.” Commonwealth v. 

Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en banc) (citations 

omitted). In order to address issue, however, we must first determine 
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whether the PCRA court correctly determined that Appellant’s second PCRA 

petition was untimely filed. 

The timeliness of a post-conviction petition is jurisdictional. See 

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). A petition for 

relief under the PCRA, including a second or subsequent petition, must be 

filed within one year of the date the judgment is final unless the petition 

alleges, and the petitioner proves, that an exception to the time for filing the 

petition, set forth at 42 Pa.C.S.A. sections 9545(b)(1)(i), (ii), and (iii), is 

met.2 See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 

2000); 42 Pa.C.S.A. § 9545. A PCRA petition invoking one of these statutory 

exceptions must “be filed within 60 days of the date the claims could have 

____________________________________________

2 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of 

interference of 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), (ii), and (iii).

 
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been presented.” Gamboa-Taylor, 753 A.2d at 783; see also 42 Pa.C.S.A. 

§ 9545(b)(2).

Appellant’s judgment of sentence became final on December 9, 2011, 

when the thirty-day time period for filing a direct appeal to this Court 

expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant needed to file 

the PCRA petition at issue by December 9, 2012, in order for it to be timely. 

Appellant filed the instant petition on January 5, 2015; it is untimely unless 

he has satisfied his burden of pleading and proving that one of the 

enumerated exceptions applies. See Commonwealth v. Beasley, 741 A.2d 

1258, 1261 (Pa. 1999).

Within his brief he claims a newly-discovered evidence claim pursuant 

to Section 9545(b)(1)(ii).3 As this Court recently has summarized:

The timeliness exception set forth in Section 9545(b)(1)(ii) 

requires a petitioner to demonstrate he did not know the facts 

upon which he based his petition and could not have learned 

those facts by the exercise of due diligence. Due diligence 

demands that the petitioner take reasonable steps to protect his 

own interests. A petitioner must explain why he could not have 

learned the new fact(s) earlier with the exercise of due diligence. 

This rule is strictly enforced. Additionally, the focus of the 

exception is focused on the newly discovered facts, not a newly 

discovered or newly willing source for previously known facts.

The timeliness exception set forth at Section 9545(b)(1)(ii) has 

often mistakenly been referred to as the “after-discovered 

____________________________________________

3 Although Appellant also refers to the section 9545(b)(1)(iii) in his 

statement of his issue, he provides no argument on this exception to the 

PCRA’s time bar.
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evidence” exception. This shorthand reference was a misnomer, 

since the plain language of subsection (b)(1)(ii) does not require 

the petitioner to allege and prove a claim of “after discovered 

evidence.” Rather, as an initial jurisdictional threshold, Section 

9545(b)(1)(ii) requires a petitioner to allege and prove that 

there were facts unknown to him and that he exercised due 

diligence in discovering those facts. See 42 Pa.C.S.A.

§ 9545(b)(1)(ii). Once jurisdiction is established, a PCRA 

petitioner can present a substantive after-discovered-evidence 

claim. See Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be 

eligible for relief under PCRA, petitioner must plead and prove by 

preponderance of the evidence that conviction or sentence 

resulted from, inter alia, unavailability at the time of trial of 

exculpatory evidence that has subsequently become available 

and would have changed the outcome of the trial if it had been 

introduced). In other words, the “new facts” exception at:

Subsection (b)(1)(ii) has two components, which must 

be alleged and proved. Namely, the petitioner must 

establish that: 1) the facts upon which the claim was 

predicated were unknown and 2) could not have been 

ascertained by the exercise of due diligence. If the 

petitioner alleges and proves these two components, then 

the PCRA court has jurisdiction over the claim under this 

subsection.

Thus the “new facts” exception at Section 9545(b)(1)(ii) does 

not require any merits analysis of an underlying afterdiscovered-evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015) (some 

internal quotation marks and citations omitted; footnote omitted; emphasis 

in original).

In dismissing Appellant’s claim, the PCRA court reasoned that

Appellant has failed to plead and prove that the facts upon which 

his claim is based were unknown and unknowable even with the 

exercise of due diligence. In fact, Appellant fails to state exactly 

what evidence was newly discovered. He states that he “was 

made aware by the SCI-Para-Legal Department of the newly 

discovered evidence contained herein” on December 27, 2014. 

Without further clarification, this Court is unable to make a 
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searching inquiry as to the validity of Appellant’s claim. This 

Court is unable to consider if the evidence was discoverable with 

due diligence, if it was material, authentic or would cause a new 

trial to likely produce a different result. This Court, therefore, 

determined that the after-discovered exception [sic] to the 

PCRA’s timeliness requirement could not be applied to this case.

PCRA Court Opinion, 8/26/15, at 5. 

Appellant vaguely phrases his newly discovered evidence claim on 

appeal. As recognized by the PCRA court, to the extent Appellant raises 

claims regarding the effectiveness of counsel during the plea process, 

because that claim was disposed of in Appellant’s prior PCRA proceeding, it 

is considered “previously litigated” under the PCRA. See 42 Pa.C.S.A. § 

9544(a). To the extent Appellant raises claims of trial court error regarding 

the discretionary aspects of his sentence, such direct challenges are not 

cognizable under the PCRA. See, e.g., Commonwealth ex rel. Dadario v. 

Goldberg, 773 A.2d 126 (Pa. 2001); 42 Pa.C.S.A. § 9544(b). (In any event, 

because Appellant’s negotiated guilty plea contained an agreed to sentence, 

he cannot raise a discretionary aspect claim. See Commonwealth v. 

Dalberto, 648 A.2d 16 (Pa. Super. 1994).) 

The PCRA court correctly concluded that Appellant failed to establish 

any exception to the PCRA’s time-bar. The PCRA court therefore properly 

dismissed Appellant’s second PCRA petition as untimely filed.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/6/2016