Com. v. McKeithan, D.

• Court: Superior Court of Pennsylvania
• Decided: August 28, 2014
• Docket: 2318 EDA 2013
• Status: Unpublished

Opinion

J-S52020-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S52020-14

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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