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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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Relief Act and modified in part and repealed in part[.]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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