Com. v. Mckeithan, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENNIS MCKEITHAN :
:
Appellant : No. 427 EDA 2021
Appeal from the PCRA Order Entered January 25, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0101441-1983
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 26, 2022
Dennis McKeithan appeals from the denial of his petition for relief under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He
argues that the PCRA court erred by dismissing his petition as untimely. We
affirm.
A jury convicted McKeithan of five counts of robbery, one count of
conspiracy, and one count of possessing an instrument of crime. The trial court
sentenced him to an aggregate term of 57 to 115 years’ incarceration. We
affirmed the judgment of sentence and McKeithan did not file a petition for
allowance of appeal to our Supreme Court. See Commonwealth v.
McKeithan, 496 A.2d 852 (Pa.Super. filed May 10, 1985) (unpublished
memorandum).
McKeithan filed the instant counseled petition, his sixth, seeking in the
alternative a reversal of his convictions, the vacation of his sentence, or the
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grant of a new trial. PCRA Petition, filed 8/30/19. He acknowledged the
untimeliness of the petition and raised both the governmental interference
and newly discovered fact time-bar exceptions. Id. at 29. For the
governmental interference exception, McKeithan alleged the Commonwealth
had presented perjured testimony, withheld exculpatory evidence, and
committed prosecutorial misconduct. Id. at 29-30. For the newly discovered
fact exception, he alleged that the Commonwealth’s star witness, Jean Wilson,
had recanted. Id. at 31.
Regarding Jean Wilson’s testimony, McKeithan alleged that he raised the
claim within one year of learning this information, as Wilson was interviewed
on May 31, 2018. Id. at ¶ 111. He also maintained that he was diligent in
contacting Wilson. He alleged that “[w]hen he learned from a fellow
parishioner that she was a member of a Philadelphia church he wrote to the
pastor. He attempted to have outside supporters call and reach Wilson for an
interview.” Id. at ¶ 112. McKeithan did not specify when he learned this
information from the parishioner. He did allege that investigators contacted
Wilson in January 2018 and she eventually agreed to be interviewed in May
2018. Id. She also signed an affidavit in August 2018. A portion of Wilson’s
affidavit is below, in which she claimed that she was pressured to identify
McKeithan as a participant in the robbery and that her trial testimony was not
correct.
The police and the prosecution asked me to identify Dennis
McKeithan as one of the individuals who came into the bar
and robbed the bar and the patrons. I had repeatedly told
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them that [McKeithan] did not rob the bar and that he was
not in the bar during the robbery. However, they kept on
telling me that he was there and showing me pictures. They
kept on and on.
All of this pressure confused me. Since [McKeithan] was
sitting at the defense table at trial, it seemed like I had to
name him as a robber. So, I did identify him as a robber at
trial.
However, my testimony at trial was not correct. Dennis
McKeithan was not in the Sweet Love Lounge that night. I
did not see him during the robbery. He was not one of the
robbers.
Id. at Exhibit B (Wilson Affidavit), dated 8/22/18, at ¶¶ 8-10.
On March 4, 2020, McKeithan filed an amended PCRA petition with
permission of the court, alleging new evidence from his co-defendant, Derrick
Harold, and a trial witness, Robin Fears. He attached statements from both.
See Amended PCRA Petition, filed 3/4/20, at Exhibit S (Harold Statement,
dated 8/25/19) and T (Fears Statement, dated 9/2/19). He noted that his pro
bono team initially contacted Harold in the Summer of 2019 “after an intensive
internet search[.]” Amended PCRA Petition at ¶ 136. McKeithan stated that
Harold gave a statement on August 25, 2019, after being contacted by
McKeithan’s attorneys. Id. at ¶ 119. In his statement, Harold alleged that
McKeithan was not at the Sweet Love Lounge and had no part in the robbery.
Harold Statement, at ¶ 4. He also stated that he was brought to the
courthouse to testify in McKeithan’s case but was not called to testify. Id. at
¶ 14.
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Regarding Fears, McKeithan stated that after his attorneys contacted
her on September 3, 2019, Fears gave a statement. Amended PCRA Petition
at ¶ 121. In her statement, Fears reported that she “may have been confused
about the identification of [McKeithan] as a robber.” Fears Statement at ¶14.
Additionally, she stated that “because everyone was saying that it was him
Dennis Solo McKeithan, I assumed it was him.” Id. at ¶ 15.
The Commonwealth filed a motion to dismiss the petition as untimely.
The PCRA court filed a notice of its intent to dismiss the petition pursuant to
Pa.R.Crim.P. 907 and denied McKeithan’s petition, concluding that it was
untimely and that he failed to satisfy any time-bar exception. This timely
appeal followed.
McKeithan raises the following issues:
I. Whether the PCRA Court erred in dismissing Mr.
McKeithan’s petition as untimely filed on its face when
Mr. McKeithan properly pleaded that he had met the
government interference exception to the timeliness
requirement under § 9545(b)(1)(i)?
II. Whether the PCRA Court erred in dismissing Mr.
McKeithan’s petition as untimely filed on its face when
Mr. McKeithan properly pleaded that he had met the
“unknown facts” exception to the timeliness
requirement under § 9545(b)(1)(ii)?
III. Whether the PCRA Court abused its discretion in
dismissing Mr. McKeithan’s petition as untimely filed
on its face without first granting leave for Mr.
McKeithan to amend his pleadings under Pa.R.C.P.
905(A) and Pa.R.C.P. 907(1)?
IV. Whether the PCRA Court abused its discretion in
dismissing Mr. McKeithan’s petition as untimely filed
as a matter of fact without first holding an evidentiary
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hearing when Mr. McKeithan raised material issues of
fact underlying his claim that met the government
interference exception to the timeline requirement
under § 9545(b)(1)(i)?
V. Whether the PCRA Court abused its discretion in
dismissing Mr. McKeithan’s petition as untimely filed
as a matter of fact without first holding an evidentiary
hearing when Mr. McKeithan raised material issues of
fact underlying his claim that met the “unknown facts”
exception to the timeliness requirement under §
9545(b)(1)(ii)?
VI. Whether the PCRA court err[ed] by improperly
imposing a “due diligence” requirement on the
government interference exception to the timeliness
requirement under § 9545(b)(1)(i) when no due
diligence requirement appears in the statutory text?
VII. Whether [McKeithan’s] right to an impartial tribunal
was violated when the PCRA court ruled on his claims
before the court examined the evidence proffered in
support of those claims – as revealed after the filing
of [McKeithan’s] statement of issues complained of an
appeal?
McKeithan’s Br. at 2-4 (answers of trial court omitted).
We review the grant or denial of PCRA relief by determining “whether
the PCRA court's ruling is supported by the record and free of legal error.”
Commonwealth v. Presley, 193 A.3d 436, 442 (Pa.Super. 2018) (citation
omitted).
In his first issue,1 McKeithan claims that he satisfied the governmental
interference time-bar exception based on “the new evidence provided by Jean
____________________________________________
1McKeithan’s brief violates Pa.R.A.P. 2119(a), which requires the argument
portion of an appellate brief to be divided into as many parts as there are
questions to be argued. McKeithan’s statement of questions involved lists
(Footnote Continued Next Page)
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Wilson and [] the new evidence provided by the [District Attorney’s Conviction
Integrity Unit (“CIU”)].” McKeithan’s Br. at 27. He alleges that the 2018
interview that she gave shows that she gave a statement to police exonerating
him but that it was destroyed when the case file was destroyed, which he
learned from the CIU. He maintains that this rises to the level of a Brady2
violation.
A petitioner must file a PCRA petition within one year after the judgment
of sentence becomes final. “[A] judgment of sentence becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). After
the one-year deadline, a petitioner must plead and prove at least one of the
time-bar exceptions:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation
of the claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United
States;
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seven issues, but the argument is divided into only four sections. Although
confusing, we will not quash as we believe we have been able to understand
McKeithan’s arguments. To the extent we have misunderstood an issue or
failed to address a point, it is waived. See Lemenestrel v. Warden, 964
A.2d 902, 911 n.5 (Pa.Super.2008).
2 Brady v. Maryland, 373 U.S. 83 (1963).
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(ii) 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; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or
the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to
apply retroactively.
Id. at § 9545(b)(1)(i)-(iii). The exception must be raised within one year of
the date that the claim could have been presented. Id. at § 9545(b)(2).3
To establish the governmental interference time-bar exception,
McKeithan had to plead and prove that the government interfered with his
ability to raise a claim “in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States.” 42 Pa.C.S.A.
§ 9545(b)(1)(i). A Brady violation exists where: “(1) the evidence at issue
was favorable to the accused, either because it is exculpatory or because it
impeaches; (2) the prosecution has suppressed the evidence, either willfully
or inadvertently; and (3) the evidence was material, meaning that prejudice
must have ensued.” Commonwealth v. Bagnall, 235 A.3d 1075, 1086 (Pa.
2020) .
A Brady violation may meet the governmental interference exception,
but the petitioner must show that the withheld information could not have
been ascertained earlier through the exercise of due diligence. See
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3 For claims arising before December 24, 2017, a petitioner must raise the
exception within 60 days of the date the claim could have been presented.
See Act 2018, Oct. 24, P.L. 894, No. 146, § 3.
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Commonwealth v. Abu-Jamal, 941 A.2d 1263,1268 (Pa. 2008). Due
diligence does not require “perfect vigilance [or] punctilious care” but rather
“reasonable efforts by a petitioner, based on the particular circumstances, to
uncover facts that may support a claim for collateral relief[.]”
Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa.Super. 2015).
Here, McKeithan’s claim under the governmental interference time-bar
fails. First, his claim of a Brady violation is one of speculation. In her
statement to McKeithan’s investigators, Wilson stated that she told the police
that McKeithan did not rob the bar and was not in the bar. There is nothing in
her statement in support of McKeithan’s PCRA petition suggesting that the
police memorialized this into a written statement. Thus, McKeithan fails to
show that his failure to raise his claim was a result of governmental
interference.
Furthermore, his claim regarding potential exculpatory information in
the police file is meritless as it is also speculative. McKeithan claims that it is
not speculative that “the CIU has uncovered evidence of widespread Brady
violations that generally plagued the Philadelphia police department during
this time; and (b) new evidence was located in [McKeithan’s] case by the CIU
that gives weight to his specific Brady claim.” McKeithan’s Br. at 30. He also
maintains that he did not have access to the information provided by the CIU
before 2018. See id.McKeithan in effect asks us to assume misconduct occurred in his case
because the CIU has found alleged misconduct in other cases. We cannot do
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as he asks. As the PCRA petitioner, McKeithan bears the burden of pleading
and proving the applicability of a time-bar exception. Even accepting as true
everything McKeithan has pleaded, for purposes of argument, his allegations
of occurrences in other cases is insufficient to raise an inference that similar
things happened in McKeithan’s case. As the PCRA court concluded,
McKeithan’s suggestion that exculpatory information had to have been within
the police files that were destroyed is speculative. It does not satisfy the
governmental interference time-bar exception.
McKeithan also failed to satisfy the due diligence requirement of this
exception. McKeithan did not plead any reason he could not have obtained
this evidence earlier. He has not explained why he could not have received
this information from Wilson before 2018.
In his second issue, McKeithan claims he met the unknown facts time-
bar exception. The “unknown facts” on which McKeithan predicates his claim
include Wilson’s recantation, Harold’s statement, and Fears’ statement. See
McKeithan’s Br. at 35. He maintains that he acted with due diligence in
obtaining the new facts, citing his pro se incarcerated status. He argues that
“the Pennsylvania Supreme Court has noted that incarcerated prisoners have
a particular lack of access to public records and legal research that is relevant
to timeliness inquiries.” Id. at 22-23, 36, 38 (citing Commonwealth v.
Burton, 158 A.3d 618, 637-38 (Pa. 2017)).
To establish the unknown fact time-bar exception, McKeithan had to
plead and prove that “(1) the facts upon which the claim [is] predicated were
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unknown and (2) could not have been ascertained by the exercise of due
diligence.” Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007)
(citing 42 Pa.C.S.A. § 9545(b)(1)(ii)). “[T]he focus of this exception is on the
newly discovered facts, not on a newly discovered or newly willing source for
previously known facts.” Commonwealth v. Brown, 111 A.3d 171, 176
(Pa.Super. 2015) (citations and quotation marks omitted). The PCRA court
again concluded that McKeithan failed to satisfy the due diligence prong of the
time bar exception. It concluded that McKeithan did not explain what efforts
he took to obtain these new facts from the witnesses presented in his PCRA
petition.
McKeithan did not meet the unknown fact time-bar exception because
he did not plead sufficient facts to meet the due diligence requirement. He did
not explain why he could not have attained the “unknown facts” earlier with
the exercise of due diligence. His petition alleged that he had outside
supporters reach out to Wilson, but he did not specify when this occurred or
why this could not have happened sooner.
As to the remaining witnesses, Fears and Harold, he did not identify the
efforts he made to contact them before 2018. We therefore cannot assess
whether he exercised due diligence during that time. McKeithan mentions his
pro se incarcerated status as a reason for his inability to obtain this
information, but this does not cure his failure to allege the efforts, if any, he
made to contact any of these individuals. Furthermore, McKeithan has not
always proceeded pro se, which he admits. Even assuming his pro se status
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at certain times excuses his failure to act during those times, it does not
explain his inaction when he has had counsel.4
McKeithan maintains that the “mere fact” that he “knew that Ms. Wilson
had lied at trial does not mean that he could have obtained her recantation
near or at the time of trial.” Id. at 41. In support, he cites Commonwealth
v. Cobbs, 759 A.2d 932, 934-35 (Pa.Super. 2000), Commonwealth v.
McCracken, 659 A.2d 541, 545 (Pa. 1995), and Commonwealth v. Medina,
92 A.3d 1210, 1217-18 (Pa.Super. 2014). These cases are distinguishable. In
Medina, we concluded that the petitioner had satisfied the unknown fact
exception based on a recantation from a witness. The recanting witness in
Medina unequivocally identified Medina at trial as the perpetrator of the
crime. Medina, 92 A.3d at 1217. Similarly, in McCracken, our Supreme Court
noted that the recanting witness consistently identified McCracken at trial
and at the preliminary hearing. McCracken, 659 A.2d at 549. In both cases,
the appellate court concluded that the witnesses’ consistent testimony at trial
gave the appellant no reason to believe that the witnesses would later recant
their testimony. See McCracken, 659 A.2d at 549; Medina, 92 A.3d at 1217-
18.
The same cannot be said for the case herein. Unlike the cases discussed
above, McKeithan stated in his PCRA petition that Wilson’s identification of him
____________________________________________
4 McKeithan stated in the court below that although he “refers to prior counsel
being ‘less than-competent’ and that he has been ‘effectively abandoned by
counsel,’ he does not do so to assert Ineffective Assistance of Counsel (IAC)
claims.” Response to Notice of Intent to Dismiss at 13.
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was “always hesitant.” Amended Petition at ¶ 32. He admitted that she did
not identify him at trial as a one of the individuals “who first entered the bar.”
Id. He also noted that she testified at trial that she told police on the night in
question that the bar was robbed by three people, “none of whom were
[McKeithan].” See Amended Petition at ¶ 32. As for Fears, McKeithan stated
in his petition that he noted Fears “only half-heartedly implicated [McKeithan]”
and contradicted the testimony of other witnesses by stating that no one
mentioned “Solo,” McKeithan’s nickname, on the night of the robbery. See
Amended Petition at ¶ 50.
This case thus presents a different situation than that in McCracken
and Medina. In those cases, the courts determined that the witnesses’ solid
testimony did not give the defendant a reason to investigate the validity of
the testimony. Here, McKeithan himself terms the testimony in question as
“always hesitant” and “half-hearted.” Pursuant to McCracken and Medina,
McKeithan had reason to investigate. He thus failed to meet the due diligence
requirement by failing to explain why he delayed in doing so.
As for Harold, who did not testify at trial, McKeithan did not explain what
efforts he made to discover what Harold’s testimony would have been if he
had decided to testify. See Brown, 111 A.3d at178 (concluding appellant
failed to meet due diligence prong of newly discovered fact time-bar exception
where appellant failed to explain the efforts he made to contact witness
regarding additional details he had about the case).
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Finally, McKeithan’s reference to Cobbs is utterly inapposite. Cobbs is
distinguishable as it involved the substantive after-discovered evidence
exception, not the unknown fact time-bar exception. See Cobbs, 759 A.2d at
934-35. Moreover, the evidence at issue there was deposition testimony
obtained in a post-conviction civil suit. This Court summarily declared that
such testimony “could not have been discovered prior to or at the trial.” 759
A.2d at 935. That is a different situation than the one we face in this case.
Here, McKeithan failed to plead facts that, if true, would establish he exercised
due diligence. The court did not err in concluding that McKeithan failed to
properly plead this exception.
McKeithan next claims that the PCRA court erred by not allowing him to
amend his petition “to provide additional details and/or dates regarding his
prior efforts to obtain the new evidence of innocence presented in his petition."
McKeithan’s Br. at 47. He argues that pursuant to Pennsylvania Rule of
Criminal Procedure 905, an amendment to a PCRA petition “shall be freely
allowed to achieve substantial justice.” Id. (quoting Pa.R.Crim.P. 905(A)). He
also maintains that in his response to the court’s Rule 907 notice, he requested
leave to amend his petition. Id. at 48-49. McKeithan’s claim is meritless.
It is within the discretion of the PCRA court to grant or deny a request
to amend a PCRA petition. See Commonwealth v. Crispell, 193 A.3d 919,
930 (Pa. 2018); Pa.R.Crim.P. 905(A) (“The judge may grant leave to amend
or withdraw a petition for post-conviction collateral relief at any time”). Rule
905 provides that an amendment to a PCRA petition “shall be freely allowed
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to achieve substantial justice.” Pa.R.Crim.P. 905(A). However, merely asking
the court to amend and the court not ruling on that request is not enough to
show an abuse of discretion. Moreover, when McKeithan asked the PCRA court
for leave to amend, McKeithan did not say what he would include in the
amendment. On appeal, McKeithen belatedly maintains that he should have
been allowed “to provide additional details and/or dates” for his prior efforts
to seek the new evidence presented in his petition. See McKeithan’s Br. at 47.
However, he did not plead this before the PCRA court. He did not specify what
if any details or dates he would have included in the amended petition. We
therefore cannot say that the PCRA court, without knowing something about
what McKeithan intended to put in the amended petition, abused its discretion
in refusing to allow the amendment. See Commonwealth v. Williams, 828
A.2d 981, 988 (Pa. 2003) (“The statutory word ‘may’ as contrasted with ‘shall’
signals a discretionary rather than a mandatory act”).
In his fourth and fifth issues, McKeithan maintains that the PCRA court
erred by not holding an evidentiary hearing on his claims that he satisfied the
governmental interference and newly discovered facts time-bar exceptions. A
PCRA petitioner does not have an automatic right to an evidentiary hearing.
See Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008). A PCRA
court need only hold a hearing if there is a genuine issue of material fact. See
id. Because we have concluded that McKeithan did not adequately plead these
exceptions, the PCRA court did not err in not holding an evidentiary hearing.
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McKeithan also claims that the PCRA court erred by imposing a due
diligence requirement for the governmental interference exception “when no
due diligence requirement appears in the statutory text[.]” McKeithan’s Br. at
4. McKeithan acknowledges that binding precedents include a due diligence
analysis as an element of the governmental interference time-bar exception.
See id. at 31 (citing Abu-Jamal and Commonwealth v. Breakiron, 781
A.2d 94 (Pa. 2001)). However, he argues that “the precedent is in peril and
should be overruled.” Id. We are in no position to do so even if we were so
inclined. This issue warrants no relief. See Commonwealth v. Reed, 107
A.3d 137, 143 (Pa.Super. 2014) (stating this Court follows current precedent
unless overruled by our Supreme Court).
McKeithan’s final claim is that the PCRA court ruled on his PCRA petition
without considering the entire record. See McKeithan’s Br. at 50. He alleges
that after the court had dismissed his PCRA petition, and after he had filed a
Rule 1925(b) statement, the judge’s clerk contacted defense counsel because
the judge could not access some of the exhibits attached to the PCRA petition.
The clerk asked counsel if he would send the exhibits by email. Based on the
court’s request, McKeithan maintains that the court ruled on his petition
“without first reviewing the full record[.]” Id. at 54.
This issue is meritless. This claim is utterly speculative, and indeed, the
sequence of events on its face defeats it. The trial court dismissed his petition,
and then after McKeithan filed his Rule 1925(b) Statement, during the time in
which it would have been drafting its opinion, the court asked McKeithan’s
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counsel for copies of documents because it could not access some of them.
That does not mean that the court did not review all relevant materials before
ruling on the petition. Rather, at most it means that the court wanted to refer
to the documents while it was drafting its opinion.5 We affirm the order of the
PCRA court dismissing the PCRA petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2022
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5 Although McKeithan raised this claim for the first time on appeal, we do not
find waiver. The request occurred almost two months after McKeithan had
filed his Rule 1925(b) statement. See McKeithan’s Br. at Exhibit B.
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