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*Former Justice specially assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 (“Appellant”) appeals from the order denying his 

latest petition for relief under the Post Conviction Relief Act (“PCRA”)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 

cohorts armed themselves and entered the “Sweet Love 

Lounge” at 25th 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.
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Kitchen, Richard Lee, and Carl Cooper at the point of his 

shotgun. After robbing Cooper, Appellant repeatedly

punched him in the face, and yelled, “we ought to kill this 

one.” 

 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 

motions and, citing Appellant’s brutal role in the robberies 

and violent criminal past, sentenced him to an aggregate 

term of 57-115 years’ incarceration. Two months later, 

[the trial court] vacated Appellant’s conviction for PIC and 

the accompanying sentence of 2 to 5 years, rendering an

aggregate sentence of 55 to 110 years’ incarceration.

 Represented by new counsel, Appellant filed a direct 

appeal. On May 10, 1985, the Superior Court affirmed 

Appellant’s judgment of sentence. On January 1994 - - 

nearly ten (10) years later - - Appellant filed his first PCRA 

petition. New counsel was appointed[.] On August 7, 

1995, [the PCRA court] denied Appellant’s petition both on 

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 

court] dismissed it as untimely under the PCRA’s 

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 - - which he styled as a “Motion 

to Correct Illegal Sentence”. [N]ew counsel was 

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 (31⁄2) 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 

intent to dismiss Appellant’s petition. Appellant did not file a response. By 

order entered July 15, 2013, the PCRA court dismissed Appellant’s latest 

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 

Appellant’s PCRA petition without an evidentiary hearing 

on the issues raise[d] in the amended PCRA petition. 
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Appellant’s Brief at 7. We address Appellant’s claims together. 

This Court’s standard of review regarding an order dismissing a 

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 

court’s findings will not be disturbed unless there is no support for the 

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 

hearing on the petition if the PCRA court determines that the petitioner’s 

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 postconviction relief, Appellant must meet a 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). “A 

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 

that he was innocent of the crimes for which he was charged.” Id. 

We first determine whether Appellant’s PCRA petition was timely. The 

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. “Without jurisdiction, we simply do not 

have the legal authority to address the substantive claims” raised in an 

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. GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under 

these exceptions, the petitioner must plead and prove that: “(1) there has 

been interference by government officials in the presentation of the claim; or 

(2) there exists after-discovered facts or evidence; or (3) a new 

constitutional right has been recognized.” Commonwealth v. Fowler, 930 

A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition 

invoking one of these statutory exceptions must “be filed within sixty days of 

the date the claim first could have been presented.” 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 Pa.R.A.P. 302(a) (“Issues not 

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

time on appeal.”).
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Appellant did not file a petition for allocatur following this Court’s 

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). 

Appellant has failed to plead and prove any exception to the PCRA’s 

time bar. Within his latest PCRA petition, Appellant asserts that his recent 

discovery of affidavits from various witnesses rendered his latest petition 

timely under section 9545(b)(1)(ii). This exception requires that “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.” 42 Pa.C.S.A. § 

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, 

this grace period does not apply to serial petitions such as Appellant’s fourth. 

See Commonwealth v. Crawley, 739 A.2d 108 (Pa. 1999). 

 
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 The PCRA court found no merit to Appellant’s claim, reasoning as 

follows: 

 In the instant petition, Appellant alleges that he 

commenced the current PCRA proceedings within 60 days 

of discovering “new” evidence, to wit, that Carl Cooper - - 

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 convenience store that Mr. Cooper had “run” 

(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 

information to light, alleging that “the essential problem is 

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-conviction counsel.” 

Dismissal of Appellant’s petition was appropriate in this 

case. It is well settled that ineffective assistance claims do 

not comprise an exception to the PCRA’s time-bar 

provision. 42 Pa.C.S. § 9545(b)(4)[.] Moreover, while a 

petitioner may obtain otherwise untimely PCRA relief

where there has been a “complete denial” or 

“abandonment” of counsel - - such very limited 

circumstances are neither alleged, nor apply here. 

 Here, conversely, Appellant alleges that prior counsel 

“dropped the issues [Appellant] raised in his original 

petition” in favor of pursuing a claim that “trial counsel was 

ineffective for not properly arguing against the excessive 

sentence of the trial judge.” This does not amount to per 

se ineffectiveness as promulgated by the Pennsylvania 

Supreme Court. As such, Appellant’s petition is timebarred. 

 Moreover, even if there were a complete deprivation of 

counsel in this case - - and the record, including 
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Appellant’s own allegations, make plain there was not - - 

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 

facts “after encountering other prisoners who had been 

convicted on the strength of Cooper’s testimony.” 

Critically, Appellant does not allege when he specifically 

discovered this information. Rather, he alleges that after 

learning of this information from fellow inmates, he 

contacted Mr. Starger to further investigate Mr. Cooper’s 

background. 

In Mr. Starger’s Affidavit, he swears and deposes that 

“[i]n May of 2008, at the request of [Appellant] I began an 

investigation into claims made by a witness in [Appellant’s] 

trial - - Carl Cooper.” Thus, even calculating from any day 

in May 2008, Appellant’s petition, filed on August 22, 

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 challenges the PCRA court’s determination that he did 

not plead and prove that he filed his latest petition within sixty days of 

discovering the evidence regarding Mr. Cooper’s testimony. According to 

Appellant, the PCRA court erred in determining “he fell afoul of the 60-day 

requirement” of section 9545(b)(2), because that conclusion was based “on 

contested material facts” requiring an evidentiary hearing. Appellant’s Brief 

at 14. 

“[T]he 60-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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despite the exercise of due diligence.” 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 discovering this “new 

evidence,” we nevertheless agree with the PCRA court’s conclusion that 

Appellant failed to establish an exception to the PCRA’s time-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 evidence regarding Mr. Cooper’s testimony could 

have been discovered by due diligence had all of his prior counsel not been 

ineffective. Accordingly, Appellant has invoked “attorney abandonment” as 

a basis for invoking a timeliness exception to the PCRA. See 

Commonwealth v. Huddleston, 55 A.3d 1217, 1220-21 (Pa. Super. 2012) 

(examining precedent regarding “attorney abandonment” basis as an 

exception to the PCRA’s time bar). Our review of the record supports the 

PCRA court’s conclusion that Appellant cannot benefit from such a claim. 

Although Appellant’s sentencing claim raised in a previous PCRA petition was 

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, 

belie his “attorney abandonment” claim.

Moreover, Appellant cannot establish that his “new evidence” 

regarding Mr. Cooper’s testimony warranted post-conviction relief. Clearly, 

Mr. Cooper’s testimony was cumulative of the other six witnesses who 

positively identified Appellant as one of the men who robbed them. In 

addition, Appellant’s allegation that Mr. Cooper “perjured” himself with 

regard to certain parts of his testimony, could only be used to impeach Mr. 

Cooper’s testimony. Finally, the matters of which Appellant complains, the 

fact that Mr. Cooper was never a police officer, and did not “run” a 7-Eleven, 

were only of tangential relevance to Appellant’s trial. A review of the record 

indicates that, over defense counsel’s relevancy objection, Mr. Cooper 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 

other witnesses, that they would “compel a different verdict.” Holmes, 

supra. 

In sum, our review of the record supports the PCRA court’s 

determination that Appellant’s latest PCRA is patently untimely, and 

Appellant has not met his burden of establishing an exception to the PCRA’s 

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. 

Accordingly, the PCRA court did not err in denying Appellant’s claim without 

a hearing. Jordan, supra. We thus affirm the PCRA court’s order denying 

Appellant post-conviction relief. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/28/2014