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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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Relief Act and modified in part and repealed in part[.]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