J-S26013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    DARRELL MCKELVIE,

                             Appellant                 No. 1773 EDA 2017


                  Appeal from the PCRA Order Entered May 1, 2017
                In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-1009871-1974


BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED JULY 16, 2018

        Appellant, Darrell McKelvie, appeals pro se from the May 1, 2017 order

denying, as untimely, his serial petition filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court summarized the procedural history of Appellant’s case,

as follows:

              On January 25, 1975, … [Appellant] was tried and convicted
        by a jury before the Honorable Eugene Gelfand, of murder in the
        first degree, two counts of aggravated assault and criminal
        conspiracy[. Appellant] was sentenced to life imprisonment
        without the eligibility of parole. [Appellant’s] direct appeal from
        his judgment of sentence was affirmed by the Pennsylvania
        Supreme Court on February 28, 1977.2
           2   Commonwealth v. McKelvie, 370 A.2d 1155 (Pa 1977).


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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            On May 9, 1977, [Appellant] filed his first pro se petition
      pursuant to the Post Conviction Hearing Act (PCHA).3 Counsel was
      appointed and subsequently filed an amended petition, which was
      dismissed on December 6, 1979. [Appellant] appealed, and on
      March 11, 1983[,] the Pennsylvania Superior Court affirmed the
      court’s order dismissing his PCHA petition. The Pennsylvania
      Supreme Court denied allocatur on March 31, 1983. Thereafter,
      [Appellant] filed a number of petitions under the PCRA; all were
      denied.
         3 The legislature enacted the Post[]Conviction Hearing Act
         in 1968. In 1988, it was renamed the Post[]Conviction
         Relief Act and modified in part and repealed in part[.]

          [Appellant] filed the instant pro se petition on August 20, 2012,
      followed by … amended petition[s] on April 6, 2016 and June 3,
      2016. Pursuant to Pa.R.Crim.P. 907, this court sent a notice of
      [its] intent to dismiss the petition as untimely without exception
      on February 28, 2017. [Appellant] filed a response to the court’s
      [Rule] 907 notice on March 21, 2017[.] This court formally
      dismissed the petition on May 1, 2017[. Appellant] timely filed a
      notice of appeal to the Pennsylvania Superior Court on May 16,
      2017.

PCRA Court Opinion (PCO), 7/17/17, at 1-2 (some footnotes omitted). The

PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal; however, the court issued a Rule

1925(a) opinion on July 17, 2017.

      Herein, Appellant fails to set forth a ‘Statement of the Questions

Involved’ section in his appellate brief as required by Pa.R.A.P. 2116(a). That

rule mandates that “[n]o question will be considered unless it is stated in the

statement of questions involved or is fairly suggested thereby.”       Pa.R.A.P.

2116(a). Consequently, we deem Appellant’s arguments waived on appeal.

Id.; see also Commonwealth v. Bryant, 57 A.3d 191, 196 n.7 (Pa. Super.


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2012) (finding claims waived where they were raised in the argument portion

of the appellant’s brief, but were not set forth in the Statement of the

Questions presented) (citing Pa.R.A.P. 2116).

      Nevertheless, even if not waived, we would conclude that Appellant is

not entitled to post-conviction relief. This Court’s standard of review regarding

an order denying 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. Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

      We must begin by addressing the timeliness of Appellant’s petition,

because the PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to examine the merits of a petition.

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for post-conviction relief, including a second or subsequent

one, must be filed within one year of the date the judgment of sentence

becomes final, unless one of the following exceptions set forth in 42 Pa.C.S. §

9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition alleges
         and the petitioner proves that:

            (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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             (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).     Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

      In the case sub judice, Appellant concedes that his judgment of sentence

became final in 1977 and, thus, his present petition filed in 2012 is patently

untimely. See Appellant’s Brief at 10. Appellant contends, however, that he

meets the after-discovered evidence exception of section 9545(b)(1)(ii), as

well as the governmental interference exception of section 9545(b)(1)(i).

Both of these exceptions require the petitioner to demonstrate, inter alia, that

he could not have raised the claim earlier with the exercise of due diligence.

Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008). “Due diligence

demands that the petitioner take reasonable steps to protect his own

interests[,]” and “explain why he could not have learned the new fact(s)

earlier with the exercise of due diligence.” Commonwealth v. Brown, 111

A.3d 171, 176 (Pa. Super. 2015) (citations omitted).          “This rule is strictly

enforced.”    Id. (citation omitted).      Additionally, with regard to section

9545(b)(1)(ii), the petitioner is required “to demonstrate he did not know the

facts upon which he based his petition….” Id. (citation omitted).


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      Appellant attempts to satisfy the two above-discussed timeliness

exceptions based on affidavits from four witnesses who testified in his case,

and who are now recanting their testimony.       These witnesses are Darwen

Jones, Kevin Creamer, Sheila Booker, and Winston Burney.           All of these

individuals were between the ages of 12 and 14 when they witnessed the

shooting for which Appellant was ultimately convicted, and each of them

identified Appellant as the shooter at trial.     However, in their separate

affidavits, they now contend that they were threatened, coerced, and

otherwise manipulated by the police and the Commonwealth into naming

Appellant as the shooter, while the actual shooter was an individual known by

the nickname ‘Lil-man.’

      Appellant also attached to his PCRA petition, and includes as an

attachment to his appellate brief, an affidavit from Rosalyn Wrotten, who

obtained the affidavits from Jones, Creamer, Booker, and Burney.         In her

affidavit, dated March 25, 2016, Wrotten states, in pertinent part:

           I, Rosalyn Wrotten, certify and affirm that I got in touch with
      Mr. Darwin Jones, Mr. Kevin Creamer, Mr. Winston Burney, and
      Ms. Sheila Booker.

            I learned of their presence through [F]acebook and from
      attending [the] Valley and Norris Street Reunions. Once I met
      them, I ask[ed] each one was it true that [Appellant] is innocent.
      They [were] each … reluctant to [a]nswer, but eventually [they]
      opened up and stated equivocally that [Appellant] was innocent.

            I ask[ed] each person [if they] would … be willing to put an
      affidavit together and explain in truth what happened on that night
      and they agreed. … I will be forwarding [those affidavits] to
      [Appellant].


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See Appellant’s Brief at Exhibit E. According to Appellant, Wrotten obtained

the affidavits from the witnesses and “immediately turn[ed] [them] over to

[Appellant,]” after which he filed an amended petition on April 6, 2016,

asserting that he meets a timeliness exception based on those affidavits.1

Appellant’s Brief at 19.

       In concluding that Appellant could not satisfy a timeliness exception

based on these witnesses’ recantations, the PCRA court first stressed that

Appellant had filed a PCRA petition in 2004 based on Burney’s and Creamer’s

recantations. See PCO at 3. The PCRA court denied that petition, and on

appeal, this Court affirmed. See Commonwealth v. McKelvie, No. 2021

EDA 2005, unpublished memorandum (Pa. Super. filed March 22, 2007). In

our decision in McKelvie, we elaborated on the assertions that Appellant had

presented in his 2004 petition, stating:

             In his third PCRA petition, Appellant alleged that his counsel
       received a telephone call from Appellant’s friend, Rosalyn Wrotten,
       on November 14, 2003. During this call, Ms. Wrotten informed
       counsel that “after-discovered evidence existed in the form of
       testimonial recantations from Commonwealth eye witnesses
       Winston Burney and Kevin [C]reamer.” Certified Record, at D-39.
       Appellant also alleged that his counsel interviewed Creamer on
       November 20, 2003 and interviewed Burney on December 10,
       2003. Id. Appellant attached a signed affidavit from Burney to
       his petition and averred that an affidavit from Creamer was
       forthcoming. Id. In his affidavit, Burney stated that he provided

____________________________________________


1  In Appellant’s initial petition filed in 2012, he argued only that his mandatory
life-without-parole sentence is illegal under Miller v. Alabama, 132 S.Ct.
2455 (2012), and related cases. While that petition was pending, he filed the
amended petition asserting the witnesses’ recantation evidence. He has
abandoned his Miller claim on appeal.

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      false testimony during Appellant’s trial. Id. Burney indicated that
      he could not identify the person who shot and killed Robert Henry
      Davis and that he only testified falsely when the police began to
      harass him and other eyewitnesses. Id.

             On April 16, 2004, Appellant filed an appendix to his third
      PCRA petition, which contained Kevin Creamer’s signed affidavit.
      Certified Record, at D-40. In his affidavit, Creamer stated that he
      incorrectly identified Appellant as the individual who shot the
      victim. Id. Creamer indicated that, after he finished testifying at
      trial, he observed the actual shooter in the gallery and told the
      Assistant District Attorney that the other man was the real killer.
      Id. Creamer stated that that prosecutor had Creamer removed
      from the courtroom and never gave Creamer the opportunity to
      correct his erroneous testimony. Id.

McKelvie, No. 2021 EDA 2005, unpublished memorandum at 5-6.

      In concluding that Appellant could not rely on Burney’s and Creamer’s

recantations to satisfy any timeliness exception, the McKelvie panel

reasoned, inter alia, that,

      Appellant has not offered any explanation as to why he could not
      have obtained this recantation information sooner from his friend
      or the eyewitnesses themselves. Appellant has not even indicated
      when Ms. Wrotten learned that these eyewitnesses may have
      given false testimony or the circumstances surrounding her
      discovery of this information. Finally, Appellant has not explained
      why, if Creamer had discovered his mistake during the 1977 trial,
      Appellant could not have obtained a favorable affidavit from him
      much sooner. Appellant simply has not pleaded sufficient facts to
      establish that he can successfully invoke the after-discovered
      evidence exception. See Commonwealth v. Yarris, … 731 A.2d
      581, 590 ([Pa.] 1999) (concluding that the appellant had not
      successfully pleaded and proved the after-discovered evidence
      exception to the time bar where, inter alia, the appellant made no
      effort to explain why he could not have learned of the recantations
      sooner by the exercise of due diligence).

Id. at 7-8.




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      Our prior decision in McKelvie demonstrates that Appellant knew about

Creamer’s and Burney’s recantations in 2003. However, Appellant attempts

to reframe his claim by arguing that the “new fact” presented herein is not the

recantations themselves but, instead, “the evidence of [the] law enforcement

misconduct” that purportedly led to the false identifications and fabricated

testimony by Creamer, Burney, Jones, and Booker. Appellant’s Brief at 10.

Appellant maintains that this official misconduct was unknown to him and

could not have been ascertained with the exercise of due diligence, thus

meeting the after-discovered fact exception. He also avers that the fact that

“the detectives never disclosed their misconduct of bribes, threats, coercing

children witnesses, incarcerating children witnesses, and procuring false

testimony” meets the governmental interference exception of section

9545(b)(1)(i).

      We disagree. The heart of Appellant’s ‘new fact’ claim is the same as

that which he presented in his 2004 petition, i.e., that Creamer and Burney

fabricated their trial testimony and are now recanting it. The reason why

those witnesses lied on the stand - i.e., alleged police misconduct - is a

corollary issue to the fact of their recantations.   Moreover, Burney’s 2003

affidavit specifically mentioned police harassment; therefore, his present

affidavit discussing that police misconduct is not a ‘new fact,’ but merely an

elaboration on what he said in his original affidavit. Appellant also fails to

explain why he could not have further questioned Burney and Creamer in 2003

about their interactions with police and uncovered the present allegations of

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misconduct, given that Burney mentioned harassment by the police in his

2003 affidavit. For all of these reasons, we would conclude that Burney’s and

Creamer’s affidavits cannot satisfy the timeliness exceptions of 9545(b)(1)(i)

or (ii), as Appellant has failed to demonstrate that the information contained

in those affidavits constitutes ‘new facts,’ or that he could not have obtained

it earlier with the exercise of due diligence.

      We would also conclude that Appellant cannot meet a timeliness

exception based on Jones’ and Booker’s affidavits. As the PCRA court points

out, Appellant “failed to state what due diligence, if any, he took to secure the

alleged newly discovered facts.” PCO at 4. We agree. Notably, Appellant was

counseled in 2003 when Creamer and Burney first recanted, with Burney’s

stating that his purportedly false identification of Appellant was due to police

harassment. However, Appellant does not explain what, if any, efforts that

he, or his attorney, undertook at that time to ascertain if Jones and/or Booker

had also been harassed by police into falsely accusing Appellant.

      Additionally, nowhere in Appellant’s petition, his brief to this Court, or

in Wrotten’s affidavit is it stated when Wrotten first discovered that these

witnesses were willing to recant their trial testimony. Wrotten also does not

provide any temporal distinction between her 2003 discovery of Creamer’s

and Burney’s recantations, and her discovery that Jones and Booker were also

willing to recant. Thus, Wrotten may have known, or been able to discover,

all four witnesses’ recantations as early as 2003.         Appellant offers no

discussion of why he could not have obtained the information provided by

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Jones and Booker earlier, through Wrotten’s assistance, had he exercised due

diligence.

      Consequently, we would conclude that Appellant’s lack of clarity

regarding what efforts he undertook to discover Jones’ and Booker’s

recantations, or when Wrotten first learned that these witnesses’ allegedly lied

on the stand, is fatal to his burden of demonstrating that he filed his present

petition within 60 days of the date that the claim could have first been

brought. See 42 Pa.C.S. § 9545(b)(2); see also McKelvie, No. 2021 EDA

2005, unpublished memorandum at 8 (concluding that Appellant failed to

demonstrate due diligence when he did not indicate when Wrotten learned

that Creamer and Burney may have given false testimony).

      Order affirmed.

      Judge Bowes and President Judge Emeritus Stevens concur in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/18




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