Com. v. McIntyre, L.

• Court: Superior Court of Pennsylvania
• Decided: June 10, 2025
• Docket: 1174 WDA 2024
• Status: Unpublished

Opinion

J-A09012-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LINDSAY ERIN ORTON-MCINTYRE : : Appellant : No. 1174 WDA 2024

Appeal from the PCRA Order Entered September 12, 2024 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001252-2021

BEFORE: KUNSELMAN, J., NICHOLS, J., and LANE, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: June 10, 2025

Lindsey Erin Orton-McIntyre appeals pro se from the order denying her

second petition under the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A.

§§ 9541-46. For the reasons that follow, we affirm.

The PCRA court summarized the pertinent facts as follows:

On July 22, 2020, a North East Police Department patrol officer was dispatched to [Orton-McIntyre’s] apartment to check the welfare of [K.M., Orton-McIntyre’s] four-week old infant. Upon arrival, the [p]atrolman found [K.M.] to be listless and unresponsive. [K.M.] was immediately transported to UPMC Hamot in Erie, Pennsylvania and then due to [K.M’s] critical injuries, she was transferred to UPMC Children’s Hospital of Pittsburgh. K.M. was found to have intracranial hemorrhaging and a transverse radius fracture. Upon further assessment, K.M. had a fracture of her right forearm, injury to her cervical spine, brain swelling and bleeding, retinal hemorrhaging, and was suffering strokes. Tragically, K.M. succumbed to her injuries on July 28, 2020. J-A09012-25

PCRA Court Opinion, 11/13/24, at 1.

Following her arrest, the Commonwealth charged Orton-McIntyre with

criminal homicide, endangering the welfare of a child, and aggravated assault.

A jury trial was scheduled for October 2021. At a status conference in

September 2021, however, Orton-McIntyre moved for a continuance and

application for funds to allow the procurement of a “pediatric expert” and to

allow for a potential psychiatric evaluation. The trial court granted the motion.

Thereafter, Orton-McIntyre’s trial was continued twice so that defense counsel

could review the voluminous discovery. Ultimately, Orton-McIntyre’s trial was

scheduled for August 12, 2022.

The day before trial was scheduled to begin, Orton-McIntyre entered an

open guilty plea to third-degree murder in return for the Commonwealth’s

dismissal of the remaining charges. On October 10, 2022, the trial court

imposed a sentence of ten to twenty years of imprisonment.

On October 27, 2022, Orton-McIntyre’s trial counsel filed a petition to

withdraw and for an extension of time for Orton-McIntyre to file a pro se

appeal. In this petition, trial counsel referenced a letter that Orton-McIntyre

filed with the county clerk of courts stating that she wanted to file an appeal,

but wanted a new attorney to assist her in the appellate process. On

November 2, 2022, the trial court granted trial counsel permission to withdraw

and provided Orton-McIntyre forty-five days in which to file an appeal.

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Orton-McIntyre filed neither a post-sentence motion nor a direct

appeal.1 Instead, on November 28, 2022, she filed a “Motion to Vacate

Conviction,” in which she raised multiple claims of ineffective assistance. The

court treated this filing as a PCRA petition and appointed counsel. On February

21, 2023, PCRA counsel filed a no-merit letter and petition to withdraw

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

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

March 20, 2022, the PCRA court issued a Criminal Rule 907 notice of its intent

to dismiss Orton-McIntyre’s petition without a hearing. Orton-McIntyre did

not file a response. On April 17, 2023, the PCRA court denied the petition.

Thereafter, PCRA counsel was permitted to withdraw by separate order.

Orton-McIntyre did not appeal.

On June 26, 2024, Orton-McIntyre filed the pro se PCRA petition at

issue, her second. On August 1, 2024, the PCRA court issued a Criminal Rule

907 notice of its intent to dismiss Orton-McIntyre’s petition without a hearing.

Orton McIntyre filed a response. By order entered September 12, 2024, the

PCRA court dismissed Orton-McIntyre’s second petition as untimely and

otherwise without merit. This timely appeal followed. Both Orton-McIntyre

and the PCRA court have complied with Appellate Rule 1925.

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1 Logan Blaize Miller, K.M.’s father, also pled guilty to third-degree murder.

His conviction was affirmed on appeal. See Commonwealth v. Miller, 307 A.3d 695 (Pa. Super. 2023) (non-precedential decision).

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Orton-McIntyre raises the following issues on appeal:

A. Whether the PCRA Court erred when it did not grant relief on the [PCRA] Petition that alleged Trial and [PCRA] Counsel were ineffective?

B. Whether the PCRA court erred when it did not grant relief on the [PCRA] Petition that alleged ineffective counsel as inducement to plead guilty?

Orton-McIntyre’s Brief at 4.

Before addressing these claims, however, we must first determine

whether the PCRA court correctly concluded that Orton-McIntyre’s second

PCRA petition was untimely filed.

The timeliness of a post-conviction petition is jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA must be filed within one year

of the date the judgment becomes final unless the petition alleges, and the

petitioner proves, that an exception to the time for filing the petition is met.

The three narrow statutory exceptions to the one-year time bar are as follows:

“(1) interference by government officials in the presentation of the claim; (2)

newly discovered facts; and (3) an after-recognized constitutional right.”

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012) (citing

42 Pa.C.S.A. § 9545(b)(1)(i-iii)). In addition, exceptions to the PCRA’s time

bar must be pled in the petition and may not be raised for the first time on

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

see also Pa.R.A.P. 302(a) (providing that issues not raised before the lower

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court are waived and cannot be raised for the first time on appeal). Moreover,

a PCRA petition invoking one of these statutory exceptions must be filed within

one year of the date the claim could have been presented. 42 Pa.C.S.A. §

9545(b)(2).

Finally, if a PCRA petition is untimely and the petitioner has not pled and

proven an exception “neither this Court nor the [PCRA] court has jurisdiction

over the petition. Without jurisdiction, we simply do not have the legal

authority to address the substantive claims.” Commonwealth v.

Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).

Here, Orton-McIntyre’s judgment of sentence became final on

November 9, 2022, thirty days after the time for filing an appeal to this Court

expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Orton-McIntyre had until

November 9, 2023, to file a timely petition. Because Orton-McIntyre filed the

petition at issue in June 2024, it is untimely, unless she has satisfied her

burden of pleading and proving that one of the enumerated exceptions

applies. See Hernandez, supra.

Orton-McIntyre has failed to plead and prove an exception to the PCRA’s

time bar. In her second PCRA petition, Orton-McIntyre alleged that she could

establish the newly-discovered fact exception. 42 Pa.C.S.A. § 9545(b)(1)(ii).

According to Orton-McIntyre, in October 2023, while working at the prison law

library, she discovered a report published by the Innocence Project which

“stated the diagnosis of [shaken baby syndrome/abusive head trauma] was

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insufficient and unreliable.” Orton-McIntyre’s Brief, at 7. Orton-McIntyre then

contends that trial counsel “failed to object to the prosecution’s expert

testimony and moved [sic] for it to be inadmissible.” Id.2

Here, the PCRA court found that Orton-McIntyre’s petition contained “no

new facts,” and that her second petition “was duplicative of her first PCRA

[petition] with the addition of a claim of ineffective assistance of PCRA

counsel.” PCRA Court Opinion, 11/13/24, at 3. We agree.

Following our review, it is clear that Orton-McIntyre proposed this

recently discovered report as additional support to relitigate the claim in her

prior petition that trial counsel was ineffective for failing to fully investigate a

defense and advising her to enter a guilty plea. As noted above, Orton-

McIntyre did not appeal the denial of her first petition. Moreover, claims of

counsel’s ineffectiveness cannot be used to salvage an otherwise untimely

PCRA petition. Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa.

2005).3 At best, Orton-McIntyre’s discovery of the report constitutes a newly

discovered fact to support her previously raised claim of trial counsel’s

2 Given that she pled guilty, Orton-McIntyre is referring to expert testimony

presented at her preliminary hearing. See Orton-McIntyre’s Brief at 5.

3 Regarding Orton-McIntyre’s claim that PCRA counsel was ineffective, we note

that in Commonwealth v. Bradley, 261 A.3d 381, 404 n.18 (Pa. 2021), our Supreme Court rejected the Pennsylvania Innocence Project’s contention in an amicus brief that the “discovery” of initial PCRA’s ineffectiveness would constitute a “new fact” allowing a petitioner to overcome the PCRA’s time bar in a serial PCRA petition.

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ineffectiveness. See Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.

2015) (explaining that focus of PCRA’s time-bar exception is on newly

discovered facts, not a newly discovered or newly willing source for previously

known facts).

Thus, because Orton-McIntyre’s second PCRA petition was untimely,

both the PCRA court and this Court lack jurisdiction to consider its merits.

Derrickson, supra. We therefore affirm the PCRA court’s order dismissing

Orton-McIntyre’s petition.4

Order affirmed.

DATE: 06/10/2025

4 Even if we had jurisdiction, Orton-McIntyre’s challenges to the validity of her

guilty plea would not entitle her to relief because this was previously litigated in her first PCRA petition. See 42 Pa.C.S.A. § 9544(a)(3).

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