J-S52020- 14

*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 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

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- CR -0101441-1983, CP

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- CR -0101451-1983, CP- 51

- CR -0101481-1983, CP

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- CR -0101491-1983, CP- 51

- CR -010-1501-1983, CP

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- 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 prot racted procedural history as follows:

On October 26, 1982, Appellant and three (3) of his cohorts armed themselves and entered the “Sweet Love Lounge” at 25 th and Cambria Streets in Philadelphia, and proceeded to rob twelve (12) patrons. Appellant personally robbed victims Theresa Samuels, Lynewood

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1 42 Pa.C.S.A. §§ 9541- 46.J-S52020- 14

- 2 - Kitchen, Richard Lee, and Carl Cooper at the point o f 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 o f five (5) counts of robbery, and one (1) count each of crimina l conspiracy and possession of an instrument of crime (PIC). On April 10, 1984, [the trial court] denied post-verd ict motions and, citing Appellant’s bruta l role in the robberies and violent criminal past, sentenced him to an aggregat e term of 57- 115 years’ incarceration. Two months later, [the trial court] vacated Appellant’s conviction for P IC and the accompanying sentence of 2 to 5 years, rendering an ag gregate sentence of 55 to 110 years’ incarceration. Represented by new counsel, Appellant filed a direct appeal. On May 10, 1985, the Superior Court affirm ed Appellant’s judgment of sentence. On January 1994 - - nearly ten (10) years later - - Appellant filed his f irst PCRA petition. New counsel was appointed[.] On August 7, 1995, [the PCRA court] denied Appellant’s petition bo th 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. O n 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 anot her 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] dismissedJ-S52020- 14

- 3 - the petition as untimely. While his third petition was pending, on February 26, 2001, Appellant filed a ha beas corpus petition in the U.S. District Court for the Eastern District of Pennsylvania. [A] fifth attorney was appo inted to represent him. [The federal district court] dismisse d the petition with prejudice as untimely. The Third Circui t 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) year s later - - Appellant commenced the current proceedings b y 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 obje ction to the Rule 907 notice, followed by an amended petit ion on December 8, 2010. The matter subsequently was reassigned . . . and on July 19, 2012, current counsel was appointed to represen t Appellant. On January 18, 2013, counsel filed an ame nded PCRA petition, and on April 25, 2013, the Commonwea lth filed a Motion to Dismiss. PCRA Court Opinion, 12/10/13, at 1-3 (footnote omit ted). On June 18, 2013, the PCRA court issued Pa.R.A.P. 90 7 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 follo wed. 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 tha t the PCRA petition was untimely. II. Whether the PCRA [court] was in error in denying Appellant’s PCRA petition without an evidentiary hea ring on the issues raise[d] in the amended PCRA petition.J-S52020- 14

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Appellant’s Brief at 7. We address Appellant’s claims together. This Court’s standard of review regarding an order di smissing a petition under the PCRA is whether the determinatio n of the PCRA court is supported by the evidence of record and is free of leg al 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 sup port in either the record or from other evidence. Commonwealth v. Jordan , 772 A.2d 1011 (Pa. Super. 2001). Finally, because this is a serial pe tition 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 unfa ir that a miscarriage of justice occurred which no civilized society co uld tolerate, or that he was innocent of the crimes for which he was char ged.” Id. We first determine whether Appellant’s PCRA petition was timely. The timeliness of a post-conviction petition is jurisdictional

. Commonwealth v.J-S52020- 14

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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 clai ms” raised in an untimely petition. Id. Generally, a petition for relief under the PCRA, i ncluding a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petit ioner 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 presen tation 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 file d 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 p etition, 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 b e raised for the first time on appeal.”).J-S52020- 14

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Appellant did not file a petition for allocatur followin g 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 enum erated exceptions applies. See Commonwealth v. Beasley , 741 A.2d 1258, 1261 (Pa. 1999). Appellant has failed to plead and prove any exceptio n to the PCRA’s time bar. Within his latest PCRA petition, Appellant asserts that his recent discovery of affidavits from various witnesses rendered hi s latest petition timely under section 9545(b)(1)(ii). This exception requires that “t he facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due dilig ence.” 42 Pa.C.S.A. § 9545(b)(1)(ii).

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2 When, as here, the judgment of sentence became final p rior to January 16, 1996, the effective date of the 1995 amendments to th e PCRA, a first PCRA petition would be deemed timely filed if it was file d 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 su ch as Appellant’s fourth. See Commonwealth v. Crawley , 739 A.2d 108 (Pa. 1999).J-S52020- 14

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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] atte nded the police academy). Appellant also contends that Mr. Cooper lied about previously encountering Appellant a t 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 previou s three (3) court-appointed counsel for not bringing thi s information to light, alleging that “the essential pro blem 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 th is case. It is well settled that ineffective assistance claims do not comprise an exception to the PCRA’s ti me -bar provision. 42 Pa.C.S. § 9545(b)(4)[.] Moreover, wh ile 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 cou nsel was ineffective for not properly arguing against the exc essive sentence of the tri al judge.” This does not amount to per se ineffectiveness as promulgated by the Pennsylvania Supreme Court. As such, Appellant’s petition is time

barred. Moreover, even if there were a complete deprivation of counsel in this case - - and the record, includingJ-S52020- 14

- 8 - 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 discoveri ng 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 specifical ly discovered this information. Rather, he alleges that a fter learning of this information from fellow inmates, he contacted Mr. Starger to further investigate Mr. Coope r’s background. In Mr. Starger’s Affidavit, he swears and deposes that “[i]n May of 2008, at the request of [Appellant] I be gan an investigation into claims made by a wit ness 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 limitati on. As such it is plain from the record that Appellant has not sa tisfied, nor could he satisfy, his burden of pleading an d 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 es 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 testimo ny. According to Appellant, the PCRA court erred in determining “he fe ll afoul of the 60-day requirement” of section 9545(b)(2), because that conclusi on was based “on contested material facts” requiring an evidentiary heari ng. 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 hav e been obtained earlier,J-S52020- 14

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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 concl ude that Appellant arguably established his own due diligence in d iscovering this “new evidence,” we nevertheless agree with the PCRA court’s con clusion 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 aft er trial and it could not have been obtained at or prio r to trial through reasonable diligence; (2) the evidence is not cumulative; (3) the evidence is not being used solely t o 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 idence regarding Mr. Cooper’s testimony could have been discovered by due diligence had all of his pr ior counsel not been ineffective. Accordingly, Appellant has invoked “attor ney abandonment” as a basis for invoking a timeliness exception to the PCR A. 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 th e record supports the PCRA court’s conclusion that Appellant cannot benefit from such a claim. Although Appellant’s sentencing claim raised in a prev ious PCRA petition was found to be non-cognizable under the PCRA, the multi ple, subsequent post-J-S52020- 14

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conviction filings by Appellant in both state and feder al court, see supra , b elie his “attorney abandonment” claim. Moreover, Appellant cannot establish that his “new evide nce” 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 “per jured” himself with regard to certain parts of his testimony, could only b e 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 di d not “run” a 7 -Eleven, were only of tangential relevance to Appellant’s tria l. A review of the record indicates that, over defense counsel’s relevancy objection, Mr. C ooper was permitted to explain why, as a businessman, he had app roximately $500.00 on his person, and although Mr. Cooper never was a pol ice officer, his training at a police academy led to his familiarity wi th 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 identificat ion evidence from six other witnesses, that they would “compel a different ver dict.” 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 exc eption to the PCRA’s time bar. The PCRA court correctly determined that it lacked jurisdiction toJ-S52020- 14

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address the substantive claims raised by Appellant. Beasley , supra . Accordingly, the PCRA court did not err in denying App ellant’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