Com. v. Wilkins, M.

J-S38032-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ALAN WILKINS :
:
Appellant : 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.
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* Former Justice specially assigned to the Superior Court.
J-S38032-20
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, Vargas-
Osario 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. Vargas-
Osario 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, Velez-
Negron, 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 Vargas-
Osario.
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 after-
discovered 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 after-
discovered evidence, “a court must assess whether the alleged after-
discovered 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; after-
discovered 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 after-
discovered 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 after-
discovered 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 Velez-
Negron, 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 Velez-
Negron.
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
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