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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DENNIS MCKEITHAN,
Appellant No. 2318 EDA 2013
Appeal from the PCRA Order entered July 15, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0101441-1983,
CP-51-CR-0101451-1983, CP-51-CR-0101481-1983,
CP-51-CR-0101491-1983, CP-51-CR-010-1501-1983,
CP-51-CR-0101561-1983 & CP-51-CR-0101641-1983
BEFORE: GANTMAN, P.J., ALLEN and FITZGERALD*, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 28, 2014
Dennis McKeithan
1
as
time-barred. We affirm.
The PCRA court summarized the pertinent facts and protracted
procedural history as follows:
On October 26, 1982, Appellant and three (3) of his
th
and Cambria Streets in Philadelphia, and
proceeded to rob twelve (12) patrons. Appellant
personally robbed victims Theresa Samuels, Lynewood
____________________________________________
1
42 Pa.C.S.A. §§ 9541-46.
*Former Justice specially assigned to the Superior Court.
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Kitchen, Richard Lee, and Carl Cooper at the point of his
shotgun. After robbing Cooper, Appellant repeatedly
At a jury trial . . . seven (7) eyewitnesses positively
identified Appellant as one of the robbers. Five (5) of the
witnesses had recognized Appellant from having seen him
around the neighborhood. Appellant also testified,
admitting that he was in the bar at the time of the
robberies, but denying he was a perpetrator.
On June 3, 1983, the jury found Appellant guilty of five
(5) counts of robbery, and one (1) count each of criminal
conspiracy and possession of an instrument of crime (PIC).
On April 10, 1984, [the trial court] denied post-verdict
l role in the robberies
and violent criminal past, sentenced him to an aggregate
term of 57-
the accompanying sentence of 2 to 5 years, rendering an
ag
Represented by new counsel, Appellant filed a direct
appeal. On May 10, 1985, the Superior Court affirmed
- -
nearly ten (10) years later - - Appellant filed his first PCRA
petition. New counsel was appointed[.] On August 7,
procedural and substantive grounds.
Appellant alleges that he thereafter timely filed a notice
of appeal, but that, on June 6, 1996, the Superior Court
informed him that it had not received any filings. On
January 16, 1997, more than seven (7) months after
allegedly learning that the [Superior] Court had no record
of his alleged notice of appeal, Appellant filed a second
PCRA petition. [O]n September 18, 1997, [the PCRA
jurisdictional time bar. The Superior Court affirmed the
dismissal on July 20, 1999.
More than one (1) year later, Appellant filed another
PCRA petition - - his third - -
appointed. On May 8, 2001, [the PCRA court] dismissed
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the petition as untimely. While his third petition was
pending, on February 26, 2001, Appellant filed a habeas
corpus petition in the U.S. District Court for the Eastern
District of Pennsylvania. [A] fifth attorney was appointed
to represent him. [The federal district court] dismissed the
petition with prejudice as untimely. The Third Circuit Court
of Appeals affirmed the dismissal, and on February 22,
2005, the United States Supreme Court denied certiorari.
On August 22, 2008 - - three and one-half (3½) years
later - - Appellant commenced the current proceedings by
filing a fourth pro se PCRA petition. On July 8, 2010, [the
PCRA court] issued a notice of intent to dismiss the
petition as untimely filed, pursuant to [Pa.R.Crim.P.] 907.
On July 23, 2010, Appellant filed a response and objection
to the Rule 907 notice, followed by an amended petition on
December 8, 2010.
The matter subsequently was reassigned . . . and on
July 19, 2012, current counsel was appointed to represent
Appellant. On January 18, 2013, counsel filed an amended
PCRA petition, and on April 25, 2013, the Commonwealth
filed a Motion to Dismiss.
PCRA Court Opinion, 12/10/13, at 1-3 (footnote omitted).
On June 18, 2013, the PCRA court issued Pa.R.A.P. 907 notice of its
order entered July 15, 2013, the PCRA
PCRA petition as untimely. This timely appeal followed. Both Appellant and
the PCRA court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues:
I. Whether the PCRA [court] was in error in finding that
the PCRA petition was untimely.
II. Whether the PCRA [court] was in error in denying
on the issues raise[d] in the amended PCRA petition.
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petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001). Finally, because this is a serial petition for post-
or any subsequent post-conviction request for relief will not be entertained
unless a strong prima facie showing is offered to demonstrate that a
Commonwealth v. Burkhardt,
833 A.2d 233, 236 (Pa. Super. 2003) (en banc
petitioner makes a prima facie showing if he demonstrates that either the
proceedings which resulted in his conviction were so unfair that a
miscarriage of justice occurred which no civilized society could tolerate, or
Id.
timeliness of a post-conviction petition is jurisdictional. Commonwealth v.
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Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). Thus, if a
petition is untimely, neither an appellate court nor the PCRA court has
jurisdiction over the petition. Id
untimely petition. Id.
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
the Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA 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
raised before the lower court are waived and cannot be raised for the first
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Appellant did not file a petition for allocatur followin
affirmance of his judgment of sentence on or about June 10, 1985, after the
thirty-day period for requesting such relief expired. See 42 Pa.C.S.A.
9543(b)(3). Appellant had to file this petition on or about June 10, 1986, in
order for it to be timely.2 As Appellant filed the instant petition almost
fourteen years later, it is patently 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).
time bar. Within his latest PCRA petition, Appellant asserts that his recent
discovery of affidavits from various witnesses rendered his latest petition
timely under
upon which the claim is predicated were unknown to the petitioner and could
9545(b)(1)(ii).
____________________________________________
2
When, as here, the judgment of sentence became final prior to January 16,
1996, the effective date of the 1995 amendments to the PCRA, a first PCRA
petition would be deemed timely filed if it was filed within one year of that
date. See Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999). However,
See Commonwealth v. Crawley, 739 A.2d 108 (Pa. 1999).
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The PCRA court found
follows:
In the instant petition, Appellant alleges that he
commenced the current PCRA proceedings within 60 days
- -
one of seven (7) eyewitnesses who positively identified
Appellant as one of the robbers - had lied about being a
former police officer (when he really had [only] attended
the police academy). Appellant also contends that Mr.
Cooper lied about previously encountering Appellant at a
7-Eleven
(when he allegedly was not a manager there).
Appellant concedes that the above information could
have been ascertained decades earlier with the exercise of
due diligence. He nonetheless faults each of his previous
three (3) court-appointed counsel for not bringing this
that [Appellant] was denied the assistance of competent
trial counsel and was denied the ability to challenge this
ineffectiveness because of the subsequent ineffectiveness
of his appellate and post-
case. It is well settled that ineffective assistance claims do
me-bar
provision. 42 Pa.C.S. § 9545(b)(4)[.] Moreover, while a
petitioner may obtain otherwise untimely PCRA relief
- - such very limited
circumstances are neither alleged, nor apply here.
Here, conversely, Appellant alleges that prior counsel
ineffective for not properly arguing against the excessive
sentence of the tri not amount to per
se ineffectiveness as promulgated by the Pennsylvania
-
barred.
Moreover, even if there were a complete deprivation of
counsel in this case - - and the record, including
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- -
Appellant still would have to plead and prove that he filed
the instant PCRA petition within sixty days of discovering
the alleged deprivation.
Here, Appellant alleges that he discovered the above
after encountering other prisoners who had been
Critically, Appellant does not allege when he specifically
discovered this information. Rather, he alleges that after
learning of this information from fellow inmates, he
background.
investigation into claims made by a wit
trial - - any day
2008, was filed well beyond the 60-day time limitation. As
such it is plain from the record that Appellant has not
satisfied, nor could he satisfy, his burden of pleading and
proving the requirements of section 9545(b)(2).
Accordingly, his petition was correctly dismissed.
PCRA Court Opinion, 12/10/13, at 8-10 (citations and footnotes omitted).
Appellant first challeng
not plead and prove that he filed his latest petition within sixty days of
of the 60-day
at 14.
-day rule requires a [PCRA] petitioner to plead and prove
that the information on which he relies could not have been obtained earlier,
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Commonwealth v. Albrecht, 994
A.2d 1091, 1094 (Pa. 2010). Even if we were to conclude that Appellant
arguably established his own due diligence in d
-bar.
This Court explained:
To invoke the after-discovered evidence exception to the
PCRA time-bar successfully, [a PCRA petitioner] must
establish that: (1) the evidence has been discovered after
trial and it could not have been obtained at or prior to trial
through reasonable diligence; (2) the evidence is not
cumulative; (3) the evidence is not being used solely to
impeach credibility; and (4) the evidence would likely
compel a different verdict.
Commonwealth v. Holmes, 905 A.2d 507, 511 (Pa. Super. 2006).
Appellant does not even attempt to establish any of these factors.
Instead, he claims that the ev
have been discovered by due diligence had all of his prior counsel not been
a basis for invoking a timeliness exception to the PCRA. See
Commonwealth v. Huddleston, 55 A.3d 1217, 1220-21 (Pa. Super. 2012)
benefit from such a claim.
found to be non-cognizable under the PCRA, the multiple, subsequent post-
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conviction filings by Appellant in both state and federal court, see supra,
b
-conviction relief. Clearly,
six witnesses who
positively identified Appellant as one of the men who robbed them. In
regard to certain parts of his testimony, could only be used to impeach Mr.
which Appellant complains, the
-Eleven,
ooper was
permitted to explain why, as a businessman, he had approximately $500.00
on his person, and although Mr. Cooper never was a police officer, his
training at a police academy led to his familiarity with guns. See e.g., N.T.,
5/27/83, at 2.175-2.185. Even if these inconsistencies were presented to a
jury, we cannot conclude, given the positive identification evidence from six
Holmes,
supra.
In sum, our review of the record supports the
time bar. The PCRA court correctly determined that it lacked jurisdiction to
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address the substantive claims raised by Appellant. Beasley, supra.
a hearing. Jordan, supra
Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2014
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