J-S38032-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL ALAN WILKINS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 432 MDA 2020

Appeal from the PCRA Order Entered January 8, 2020

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0003315-2013

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 22, 2020

Appellant, Michael Alan Wilkins, appeals from the January 8, 2020, order 

entered in the Court of Common Pleas of Berks County denying his first 

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 

9541-9546, following an evidentiary hearing. After a careful review, we 

affirm.

The relevant facts and procedural history underlying this appeal have 

been set forth previously, in part, by this Court as follows:

In the early morning of December 4, 2012, gunmen shot 

and killed Dario R. McLemore and Rafael Alequin in Reading. 

Three weeks later, the charred body of Jennifer Velez-Negron was 

found near a road in Lehigh County. A wad of cloth was taped 

into her mouth, and heroin and cocaine were found in her system.

____________________________________________

* Former Justice specially assigned to the Superior Court.
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The Commonwealth charged [Appellant] with the murder of 

all three victims. At trial, the Commonwealth presented the 

following evidence to supports its charges. Carlos Vargas-Osario 

testified that he lived with [Appellant] and [Appellant’s] brother, 

Maurice. In the early morning of December 4, 2012, VargasOsario drove to Reading in his blue Camaro to find narcotics to 

purchase. While there, [Appellant] pulled alongside him in an 

SUV. Vargas-Osario noticed that both Maurice and [Appellant’s] 

girlfriend, Velez-Negron, were in [Appellant’s] SUV.

[Appellant] instructed Vargas-Osario to follow him. VargasOsario proceeded to follow the SUV in his Camaro. Shortly 

thereafter, he observed Maurice leave the SUV and discharge a 

firearm several times into a nearby vehicle. Maurice then got in 

the Camaro, and Vargas-Osario began to drive away. As he left 

the scene, he watched as someone fled the vehicle Maurice had 

shot at. He heard gunfire erupt from [the] driver’s side of 

[Appellant’s] SUV. 

Reading Police Officer Tina Fallstich was on patrol at the 

time of the shooting and heard the shots from a nearby 

intersection. She proceeded to the location of the shooting and 

eventually discovered the body of Rafael Alequin slumped over in 

the passenger seat of a vehicle double parked in the road. As she 

was radioing in her observation, she noticed the body of Dario 

McLemore face down several feet away on the sidewalk.

The Commonwealth presented video from a nearby security 

camera. Investigator Eric Driesbach described the video as it 

played to the jury:

The video...shows...three vehicles pulling up, 

stopping for what appears to be a red light, obviously, 

because they all stopped. A gentleman gets out of the 

passenger side of the second vehicle in line, walks 

over to the curb on the north side of the block right 

next to the first parked car, approaches the car, [and] 

appears to fire at least two gunshots at the car. The 

first car pulls through the intersection. The gentleman 

walks a little bit north on South Tenth Street. The 

other two vehicles go through the intersection and 

then the male returns to the third vehicle in line that 

was originally stopped in line. 

While the video did not display the shooting of Dario 

McLemore, spent cartridges found near his body were of a 
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different caliber than those found in the area of the body of Rafeal 

[sic] Alequin.

Vargas-Osario testified that [Appellant] later admitted to 

the killing by explaining his motive. McLemore and Alequin had 

previously sold [Appellant] fake narcotics for $800. Furthermore, 

he testified that [Appellant] was angry with his girlfriend, VelezNegron, as she had introduced [Appellant] to McLemore and

Alequin.

Javonda Lebo testified that [Appellant] and his brother had 

confessed to the shootings later in the morning of December 4. 

[Appellant] expressed to her that Velez-Negron was at fault for 

the drug deal gone wrong, and that Velez-Negron “got to go, like 

for setting them up.” Approximately two weeks later, [Appellant] 

and Maurice asked Lebo to create a mixture of cocaine and heroin 

in an effort to get Velez-Negron to overdose. When this attempt 

failed, [Appellant] and his brother [then] attempted to convince 

Velez-Negron to administer [a] fatal narcotic cocktail to VargasOsario. 

After Velez-Negron’s burnt body was discovered, Maurice 

showed Lebo a video of Velez-Negron taped to a chair. Maurice 

told Lebo that he and [Appellant] had given Velez-Negron three 

bags of heroin. [Appellant] was standing next to the chair, holding 

a clear plastic bag. Maurice asked Velez-Negron whether she 

would set anyone else up, and she shook her head. One of the 

men shoved a white cloth in Velez-Negron’s mouth. [Appellant] 

placed the plastic bag over Velez-Negron’s head as the men 

threatened her. After playing the video, [Appellant] admitted to 

Lebo that he had murdered Velez-Negron.

The jury found [Appellant] guilty of three counts of first 

degree murder, two counts of conspiracy to commit murder, one 

count of kidnapping, one count of criminal solicitation to commit 

[the] murder of Vargas-Osario, and several other lesser charges. 

After a penalty phase trial, on July 16, 2015, the jury reached a 

unanimous verdict of life imprisonment for the murder of Alequin. 

However, the jury could not reach a unanimous verdict for the 

murders of McLemore and Velez-Negron. As a result, the trial 

court imposed an aggregate sentence of three consecutive 

lifetimes. 

Commonwealth v. Wilkins, No. 1401 MDA 2015, at 1-4 (Pa.Super. filed 

8/26/2016) (unpublished memorandum). 
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Appellant filed a timely direct appeal on August 14, 2015, and on August 

26, 2016, this Court affirmed Appellant’s judgment of sentence.1 Appellant 

filed a petition for allowance of appeal nunc pro tunc, which our Supreme 

Court denied on December 12, 2016.

Meanwhile, on October 21, 2015, while Appellant’s direct appeal was 

pending before this Court, Appellant’s brother, Maurice, who was also charged 

with murder as to McLemore, Alequin, and Velez-Negron,2 entered a 

negotiated guilty plea to three counts of first-degree murder.3 During his

guilty plea hearing, Maurice agreed that he was pleading guilty to three counts 

of murder, and Appellant was his accomplice in the murders. N.T., 10/21/15, 

Maurice’s guilty plea/sentencing hearing, at 5. 

However, during the sentencing hearing, which occurred immediately 

thereafter, Maurice suggested Carlos Vargas-Osario, as opposed to Appellant,

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1 On appeal, Appellant contended the trial court erred in failing to sever his 

trial for the charge of murder of Velez-Negron from the trial of the other two 

murder charges, the evidence was insufficient to establish he participated in 

the conspiracy to kill McLemore and Alequin, the trial court erred in failing to 

provide special interrogatories for the jury to answer during deliberations, the 

jury’s verdict was against the weight of the evidence, and the trial court erred 

in admitting evidence that Appellant attempted to interfere with the testimony 

of potential witnesses. This Court found all of Appellant’s issues to be either 

meritless or waived. 

2 Maurice did not testify at Appellant’s trial. 

3

In exchange for Maurice’s guilty plea, the Commonwealth agreed to seek 

three sentences of life in prison, to run concurrently, and withdrew its request 

for the death penalty, as well as other charges.
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was his accomplice. Specifically, in exercising his right to allocution, Maurice 

stated the following (verbatim):

There’s something else I want to clarify, to put on the record 

to make everybody know exactly what happened, not just media. 

This is exactly what took place and what happened and who did 

what and who did do what:

On December 3rd, me, Carlos Vargas,[4] Jen Velez[5] were all 

getting high together and Carlos wanted to buy more crack. And 

we couldn’t get in touch with my brother to get more.

So Jenny called two victims, Dario and Rafael. And we all 

went to meet them. Money was exchanged and drugs was 

exchanged. And after the deal, Carlos noticed the drugs was fake. 

And he lost it and told Jenny, Bitch, you better get my money back 

or he was—so Jenny calls and calls and calls. And the two guys 

give her the run-around.

And in the meantime, Carlos got in touch with my brother 

and told him to meet us to buy some drugs. So we met my brother 

on Franklin. And I was on the phone with Carlos. 

As I left the car to get the drugs for my brother, Carlos tells 

me he sees the two guys at the light ahead of us. He tells me to 

hurry up. As I hurry he says shoot at them. So I shot at them. 

I shot three, four times, whatever, in the window as the car pulled 

off. Carlos pulls up and tells me to hurry up and get in his car.

As Carlos drives off, Carlos pulls out his gun and he shoots 

at the other guy. And after that Carlos drives back to his house. 

Now, at his house Carlos continues to get high, drunk and tough. 

He, he, he starts to talk to me telling me we need to get rid of the 

bitch true. Excuse my language. This is exactly how it went. I 

want to put it out there for comfort and closure.

As he tells me we need to get rid of the bitch, he calls her 

up, lures her over to the house. She comes in. And as she comes 

in Carlos grabs her, puts the bag over her head, suffocates her. 

And as he is suffocating her he tells me tie her to the chair. I tie 

her to the chair. As she’s tied to the chair and she is deceased. 

____________________________________________

4 We recognize “Carlos Vargas” is “Carlos Vargas-Osario.”

5 We recognize “Jen Velez” is “Jennifer Velez-Negron.” 
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At this moment I’m going a little haywire. I don’t know what to 

do, nervous and everything.

Now, as, as Carlos tells me again we need to get rid of the 

body. I said I don’t know what to do. We already messed up and 

did things we shouldn’t had did. He says throw her in the truck, 

take her to another place, and dump her body. He, he drives over 

to Lehigh County, pulls her out of the car, sits on the side.

As I’m getting ready to get in, back in the car he says, no, 

wait a minute. He dumps gas on her, lights the match, and we 

take off. This is how things happened. And I just wanted to bring 

closure to that situation.

Id. at 12-14 (footnotes added).

Thereafter, on April 17, 2017, Appellant filed a timely pro se PCRA 

petition, and on April 25, 2017, Michael Dautrich, Esquire, was appointed to 

represent Appellant. However, Attorney Dautrich was permitted to withdraw, 

and on April 4, 2018, David Long, Esquire, was appointed to represent 

Appellant. On June 5, 2019, and August 7, 2019, Attorney Long filed amended 

PCRA petitions on behalf of Appellant. Appellant presented various claims in 

his initial and amended PCRA petitions, including that he was entitled to a new 

trial based on after-discovered evidence. Specifically, Appellant averred 

Maurice’s statements, which he made in exercising his right to allocution at 

the October 21, 2015, sentencing hearing, indicating Carlos Vargas-Osario, 

and not Appellant, was Maurice’s accomplice in the three murders, constituted 

after-discovered evidence. 

On November 7, 2019, the PCRA court held an evidentiary hearing, at 

which Maurice acknowledged that he entered his guilty plea after the 

conclusion of Appellant’s jury trial and sentencing. N.T., 11/7/19, PCRA 
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hearing, at 4. Relevantly, Maurice testified as follows upon examination by 

Appellant’s PCRA counsel:

Q. Now, when you entered your guilty plea, you indicated that 

your brother was not aware of exactly what was going on, sir?

A. Yes, sir.

Q. And you took the blame for what had happened?

A. Yes, sir.

Q. And you said that [Appellant] wasn’t aware of everything?

A. No, he wasn’t.

Q. And what did you end up getting sentenced to?

A. Three life sentences; ran concurrent.

Q. And you say that your brother was just along for the ride?

A. I said that me and Carlos had met up with him to buy some 

drugs from him.

Q. But that he wasn't aware of what was going to happen?

A. No. Aside from the drugs, no.

Id. at 4-5.

On cross-examination by the Commonwealth, Maurice acknowledged 

that, during his guilty plea colloquy, he admitted Appellant was his 

accomplice; however, he testified at the PCRA hearing that he “didn’t mean 

that.” Id. at 8. Maurice testified he, thus, clarified Appellant’s lack of 

participation during his sentencing hearing. Id. 

Appellant’s trial counsel testified he never considered having Maurice 

testify at Appellant’s trial, and in fact, he did not question Maurice prior to 

trial. Id. at 16. Appellant’s trial counsel noted Maurice was facing three 
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counts of murder, and he had the right to not incriminate himself. Id. at 16-

18. 

On January 8, 2020, the PCRA court entered an order denying 

Appellant’s PCRA petition. On March 3, 2020, counsel filed on behalf of 

Appellant a notice of appeal. The PCRA court did not direct Appellant to file a 

Pa.R.A.P. 1925(b) statement, and consequently, no such statement was filed. 

On March 13, 2020, the trial court filed a Pa.R.A.P. 1925(a) opinion. 

On appeal, Appellant sets forth the following sole issue in his “Statement 

of the Questions Involved” (verbatim):

A. Did the PCRA court improperly dismiss Defendant’s request for 

a new trial under the Post Conviction Relief Act by refusing to 

accept as after-discovered evidence the testimony of his 

brother, Maurice Wilkins, that Defendant was not involved in 

the murder?

Appellant’s Brief at 3 (suggested answer omitted). 

As a prefatory matter, we must address the timeliness of this appeal.6

Timeliness of an appeal concerns our appellate jurisdiction, which we may 

raise sua sponte. Commonwealth v. Andre, 17 A.3d 951, 957–58 

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6 We note that, on May 4, 2020, this Court issued a rule to show cause as to 

why Appellant’s appeal should not be quashed as untimely. On May 13, 2020, 

counsel filed a response on behalf of Appellant. Therein, counsel indicated he 

did not receive the PCRA court’s January 8, 2020, denial order. Counsel noted 

he first learned of the order when he contacted the Clerk of Courts on March 

3, 2020, to determine the status of the case. Upon learning of the January 8, 

2020, order, counsel immediately filed a notice of appeal on March 3, 2020. 

Counsel claims that he has had issues with the Berks County Clerk of Courts 

failing to distribute orders in a timely manner. On June 17, 2020, this Court 

discharged the rule to show cause and referred the matter to this panel. 
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(Pa.Super. 2011). As stated above, the PCRA court entered an order denying

Appellant’s PCRA petition on January 8, 2020. Appellant, however, filed his 

counseled notice of appeal on March 3, 2020. Because Appellant's notice of 

appeal was due no later than February 7, 2020 (30 days after the PCRA 

petition was denied), this appeal appears to be untimely.

A notice of appeal must be “filed within 30 days after entry of the order 

from which the appeal is taken.” Pa.R.A.P. 903(a). Our Rules of Criminal 

Procedure dictate that if, after an evidentiary hearing a judge denies a PCRA

petition, the judge must “promptly issue an order denying relief” and that 

“order shall be filed and served as provided in Rule 114.” Pa.R.Crim.P. 

908(D)(1).

Rule 114 requires that all orders and court notices be docketed. 

Additionally, the Rule provides the docket entries shall contain the date the 

Clerk of Courts received the order, the date of the order, and the date on 

which the clerk served the order to the party’s attorney or the party if 

unrepresented. See Pa.R.Crim.P. 114(B) and 114(C)(2). 

As to the methods of service, the Rule provides, inter alia, that service 

may be effectuated in writing by mailing a copy to the party’s attorney. 

Pa.R.Crim.P. 114(B)(3)(a)(iii). “The comment to this Rule suggests that the 

notice and recording procedures are mandatory and not modifiable.”

Commonwealth v. Davis, 867 A.2d 585, 587 (Pa.Super. 2005) (en banc). 
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In the case sub judice, the record contains a proper docket entry of the 

PCRA court’s denial order, as well as a copy of the order. As to the service of 

the order, the certified docket entry indicates: “Proof of Service 01/09/2020.” 

A review of the “Proof of Service,” which is included in the certified record, 

indicates the order was served upon “Defendant’s attorney by mailing a 

certified copy thereof to: __________________.” The address portion was 

not completed by the Clerk of Courts. Accordingly, the certified record and 

docket entries do not reveal that proper service was effectuated upon 

Appellant, and due to this breakdown in the lower court, we shall not deem 

Appellant’s appeal to be untimely.

Appellant challenges the denial of his petition filed pursuant to the PCRA. 

The following principles govern our review.

We review an order [denying] a petition under the PCRA in 

the light most favorable to the prevailing party at the PCRA level. 

This review is limited to the findings of the PCRA court and the 

evidence of record. We will not disturb a PCRA court’s ruling if it 

is supported by evidence of record and is free of legal error. 

This Court may affirm a PCRA court’s decision on any 

grounds if the record supports it. Further, we grant great 

deference to the factual findings of the PCRA court and will not 

disturb those findings unless they have no support in the record. 

However, we afford no such deference to its legal conclusions. 

Where the petitioner raises questions of law, our standard of 

review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012) (internal 

citations omitted). 
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Appellant contends the PCRA court erred in denying his PCRA petition in 

which he presented a claim of after-discovered evidence. Namely, Appellant 

contends Maurice’s statements, which he made in exercising his right to 

allocution at his October 21, 2015, sentencing hearing, indicating that 

Appellant did not participate in the three murders at issue, constitutes afterdiscovered evidence. Appellant contends Maurice was unavailable as a 

witness until after Maurice entered his guilty plea. Moreover, Appellant argues 

that, if the jury was made aware of Maurice’s version of events, it would likely 

result in a different verdict if a new trial were granted.

Relevant here, the PCRA provides relief for a petitioner who 

demonstrates his conviction or sentence resulted from “[t]he unavailability at 

the time of trial of exculpatory evidence that has subsequently become 

available and would have changed the outcome of the trial if it had been 

introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). Accordingly, a petitioner seeking 

relief on the basis of after-discovered evidence must show that the evidence:

(1) could not have been obtained prior to the conclusion of the 

trial by the exercise of reasonable diligence; (2) is not merely 

corroborative or cumulative; (3) will not be used solely to impeach 

the credibility of a witness; and (4) would likely result in a different 

verdict if a new trial were granted.

Commonwealth v. Williams, 215 A.3d 1019, 1024 (Pa.Super. 2019)

(citation omitted). Because this test is conjunctive, a petitioner’s failure to 

establish one prong by a preponderance of the evidence obviates the need to 
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examine the remaining ones.7 Commonwealth v. Padillas, 997 A.2d 356 

(Pa.Super. 2010). 

Moreover, credibility determinations are an integral part of determining 

whether a defendant has presented after-discovered evidence that would 

entitle him to a new trial. See Commonwealth v. Small, 647 Pa. 423, 189 

A.3d 961 (2018). We have stated, prior to granting a new trial based on afterdiscovered evidence, “a court must assess whether the alleged afterdiscovered evidence is of such a nature and character that it would likely 

compel a different verdict if a new trial is granted.” Padillas, 997 A.2d at 

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7 We also note that Pa.R.Crim.P. 720(C), pertaining to after-discovered 

evidence, provides that “[a] post-sentence motion for a new trial on the 

ground of after-discovered evidence must be filed in writing promptly after 

such discovery.” Moreover, the Comment to Rule 720 provides that, unlike 

ineffective assistance of counsel claims:

[A]ny claim of after-discovered evidence must be raised promptly 

after its discovery. Accordingly, after-discovered evidence 

discovered during the post-sentence stage must be raised 

promptly with the trial judge at the post-sentence stage; afterdiscovered evidence discovered during the direct appeal process 

must be raised promptly during the direct appeal process, and 

should include a request for a remand to the trial judge; and afterdiscovered evidence discovered after completion of the direct 

appeal process should be raised in the context of the PCRA.

Pa.R.Crim.P. 720, Comment. 

Here, Appellant’s claim of after-discovered evidence is premised upon 

statements Maurice made during his October 21, 2015, hearing, which 

occurred while Appellant’s direct appeal was pending before this Court. On 

appeal, Appellant has neither explained when he discovered Maurice’s 

statements nor provided any analysis as to whether he presented his afterdiscovered evidence claim “promptly” after its discovery. In any event, as 

discussed infra, we conclude Appellant is not entitled to relief on his claim.
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365. “In making this determination, a court should consider the integrity of 

the alleged after-discovered evidence, the motive of those offering the 

evidence, and the overall strength of the evidence supporting the conviction.” 

Id.

Here, assuming, arguendo, Appellant met the first, second, and third 

prongs of the after-discovered evidence test, we agree with the PCRA court

that Appellant failed to meet his burden with regard to the fourth prong, i.e.,

that his alleged after-discovered evidence would likely result in a different 

verdict if a new trial were granted. 

For example, as it relates to the PCRA court’s consideration of the 

integrity of the after-discovered evidence, as well as the motive of the person 

offering the evidence, the record reveals that Appellant’s claim is premised on 

statements, which his brother, Maurice, made during his own sentencing 

hearing after Appellant’s conviction by a jury. In examining Maurice’s 

statements, we note Maurice initially acknowledged during his guilty plea 

colloquy that Appellant was his accomplice. N.T., 10/21/15, Maurice’s guilty 

plea/sentencing hearing, at 5. However, when Maurice exercised his right to 

allocution during the sentencing portion of his hearing, Maurice indicated he 

wanted to “clarify” that Vargas-Osario was his accomplice in all three murders, 

and Appellant was merely present to sell drugs when McLemore and Alequin 

were shot. Id. at 12-14. 
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At Appellant’s PCRA evidentiary hearing, Maurice contended that, when 

he initially acknowledged Appellant was his accomplice during his guilty plea 

colloquy, he “didn’t mean that.” N.T., 11/7/19, PCRA hearing, at 8. He 

explained that he accurately clarified during his sentencing hearing that 

Vargas-Osario was his accomplice, and Appellant was merely present selling 

drugs when McLemore and Alequin were shot. Id. at 4-5, 8. 

We conclude the PCRA court was free to disbelieve Maurice’s version of 

events indicating Vargas-Osario, as opposed to Appellant, was his accomplice, 

as well as reject Maurice’s explanation as to why he made contrary statements 

during his guilty plea colloquy and sentencing hearing in this regard. See 

Small, supra.

Moreover, as it relates to the overall strength of the evidence supporting 

Appellant’s three convictions for murder, the Commonwealth presented 

witnesses who testified Appellant admitted that he and Maurice killed 

McLemore and Alequin because of the “fake” drugs, and additionally, the 

Commonwealth presented witnesses who testified to Appellant’s attempt to 

cover-up his involvement in the murders. Furthermore, the Commonwealth 

presented the testimony of a witness who indicated Appellant and Maurice 

asked her to create a mixture of drugs that would cause Velez-Negron to 

overdose. This same witness testified that she subsequently viewed a video 

of Appellant and Maurice as they put a white cloth in the mouth of VelezNegron, as well as a clear plastic bag over her head, as she was taped to a 
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chair. Appellant admitted to this witness that he and Maurice killed VelezNegron.

The PCRA court’s consideration of the integrity of Maurice’s statements 

implicating Vargas-Osario, as opposed to Appellant, as his accomplice, in 

combination with the PCRA court’s consideration of the motive for the 

evidence, and the overwhelming evidence of Appellant’s guilt, supports the 

conclusion that Appellant failed to demonstrate the alleged after-discovered 

evidence was of such a nature and character that it would likely compel a 

different verdict if a new trial was granted. See Padillas, supra. Thus, 

Appellant failed to meet the fourth prong of the after-discovered evidence test, 

and therefore, the PCRA court did not err in denying Appellant relief on this 

claim. Id.

For all of the foregoing reasons, we affirm.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/22/2020