Opinion
J-S89027-16 No. 234 EDA 2016
07-11-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. MATTHEW HENDRICKS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order December 23, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003173-2009 BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J. MEMORANDUM BY MOULTON, J.:
Former Justice specially assigned to the Superior Court.
Matthew Hendricks appeals from the December 23, 2015 order entered in the Lehigh County Court of Common Pleas dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.
The factual history of this matter was comprehensively recounted in the trial court's opinion denying Hendricks' post-verdict motions, which we adopt and incorporate herein. See Trial Ct. Op., 10/6/11, at 2-12. This appeal arises from the shooting death of David Rivera in April 2007. Hendricks and an alleged co-conspirator, Clyde Lont, were charged in connection with Rivera's death. On May 3, 2011, following Hendricks' jury- trial conviction for third-degree murder, the trial court sentenced him to 20 to 40 years' incarceration. Hendricks filed timely post-sentence motions, arguing that he was entitled to a new trial because of after-discovered evidence, trial court error, and juror misconduct. The trial court denied the motions on October 6, 2011. On January 7, 2013, this Court affirmed his judgment of sentence. Hendricks filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied on July 3, 2013.
Hendricks was acquitted of criminal conspiracy to commit homicide, 18 Pa.C.S. § 903(a)(1).
18 Pa.C.S. § 2502(c).
In his motions, Hendricks said that his counsel had received, after Hendricks' trial, a notarized statement from Clyde Lont stating that Lont had acted "without the assistance, planning or knowledge of" Hendricks. Post-Trial Mot., 5/10/11, at 2.
On June 19, 2014, Hendricks filed a counseled PCRA petition, alleging a Brady violation. On October 29, 2014 and December 18, 2014, the PCRA court held a hearing on Hendricks' petition. On January 21, 2015, Hendricks filed an amended PCRA petition, alleging that trial counsel was ineffective for not raising the issue of inconsistent verdicts in a post-sentence motion or on direct appeal. Also on January 21, 2015, Hendricks' counsel filed a motion to withdraw. That same day, the PCRA court granted the motion and appointed new PCRA counsel.
Brady v. Maryland , 373 U.S. 83 (1963).
In Hendricks' amended petition, PCRA counsel, who at the time had represented Hendricks at all stages of this matter, including trial, raised the issue of his own ineffectiveness and requested the appointment of new counsel.
On June 24, 2015, the PCRA court held a hearing on Hendricks' additional PCRA claim. On December 23, 2015, the PCRA court dismissed Hendricks' petition. On January 12, 2016, Hendricks filed a timely notice of appeal.
Hendricks raises the following issues on appeal:
1. Whether the PCRA court erred when it found there was no violation of [ Brady v. Maryland ]?Hendricks' Br. at 6.
2. Whether the PCRA court erred when it denied relief on the basis of the inconsistent verdicts?
Our standard of review of the denial of PCRA relief "is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error." Commonwealth v. Ousley , 21 A.3d 1238, 1242 (Pa.Super. 2011). We will not disturb the PCRA court's factual findings "unless there is no support for [those] findings in the certified record." Commonwealth v. Melendez-Negron , 123 A.3d 1087, 1090 (Pa.Super. 2015).
We first address Hendricks' allegation that the PCRA court erred in finding the Commonwealth did not commit a Brady violation. "[T]here are three necessary components that demonstrate a violation of the Brady strictures: the evidence was favorable to the accused, either because it is exculpatory or because it impeaches; the evidence was suppressed by the prosecution, either willfully or inadvertently; and prejudice ensued." Commonwealth v. Lambert , 884 A.2d 848, 854 (Pa. 2005) (quoting Commonwealth v. Burke , 781 A.2d 1136, 1141 (Pa. 2001)). Hendricks contends that the Commonwealth withheld information regarding statements made by Janelle Gordon, who testified for the prosecution at trial. In particular, Hendricks avers that Gordon had informed the prosecution that Lont, who pled guilty to third-degree murder and conspiracy to commit first-degree murder, told her that Hendricks had nothing to do with Rivera's murder.
Hendricks' claim is without merit. In support of his contention that the Commonwealth violated the dictates of Brady , Hendricks offered Gordon's testimony at the PCRA hearing. At the hearing, Gordon testified as follows:
In his original PCRA petition, Hendricks averred that "[s]ubsequent to the conclusion of [Hendricks'] direct appeal, undersigned counsel was contacted by Janelle Gordon, an important Commonwealth witness at the trial." PCRA Pet., 6/19/14, at 2 (unpaginated).
Joshua Fulmer, Esquire, one of Hendricks' trial attorneys, testified that the defense chose not to call Lont because his attorney had indicated that he would invoke his Fifth Amendment privilege against self-incrimination if called to testify. N.T. PCRA, 10/29/14, at 53. --------
Q. During any of those occasions [that you met with the prosecution], did you share with prosecution officials what Mr. Lont had said to you about the extent to which Mr. Hendricks was in any way involved in this homicide?
A. Yes.N.T., 10/29/14, at 11. Gordon explained that Lont told her he wanted to kill Hendricks. Id. at 12. She testified that the prosecution told her not to speak to "anyone about anything" and instructed her not to "bring up anything" that Lont had told her about Hendricks at trial. Id. at 15. Gordon said that she brought up what Lont had allegedly told her every time she spoke with police. Id. at 16-17.
Q. Okay. And what specifically did you tell the police or the District Attorney about that?
A. He had nothing to do with it. That he was just there and he was scared. That actually Mr. Hendricks was going to go to the police and provide them, you know, with information about the murderer and eventually wanted to kill him himself. []
Bethany Zampogna, Esquire and Jay Jenkins, Esquire, chief deputy district attorneys ("CDDAs") involved with the investigation of Rivera's death and Hendricks' ensuing trial, also testified at the hearing. Zampogna and Jenkins testified that Gordon never told them that Lont had told her that Hendricks was uninvolved with Rivera's shooting. N.T., 12/18/14, at 6, 17-18. Zampogna testified that as a result of a motion in limine to exclude Lont's statements to Gordon, she instructed Gordon not to say anything that Lont had told to her. Id. at 7. Zampogna also testified that she never told Gordon not to speak to the defense or anyone else. Id. at 7-8. William Dosedlo, a lieutenant with the Bethlehem Police Department who was involved with the case, also testified that Gordon had "never once in this investigation" told him of Lont's statement that Hendricks had nothing to do with the shooting. Id. at 12-13.
The PCRA court credited the testimony of Dosedlo and the CDDAs and discredited Gordon's testimony. PCRA Ct. Op., 12/23/15, at 4. In particular, the PCRA court found that each statement given by Gordon had been disclosed to the defense, and that Gordon never told the prosecution about Lont's alleged statement. Id. Because the record supports the PCRA court's credibility determinations, we are bound by them. Commonwealth v. Dennis , 17 A.3d 297, 305 (Pa. 2011). Therefore, we conclude the PCRA court did not err in denying Hendricks' PCRA claim based on the Commonwealth's alleged violation of Brady.
We next turn to Hendricks' claim that the trial court erred in denying relief based on trial counsel's ineffectiveness. When analyzing ineffectiveness claims, "[w]e begin . . . with the presumption that counsel [was] effective." Commonwealth v. Spotz , 18 A.3d 244, 259-60 (Pa. 2011). "[T]he [petitioner] bears the burden of proving [counsel's] ineffectiveness." Commonwealth v. Ligons , 971 A.2d 1125, 1137 (Pa. 2009). To overcome the presumption of effectiveness, a PCRA petitioner must demonstrate that: "(1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance." Id. "A claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any of these prongs." Id.
Hendricks argues that counsel was ineffective for failing to challenge the inconsistency of the verdicts in a post-sentence motion or on direct appeal. The trial court concluded that Hendricks' conviction for third-degree murder was not inconsistent with his acquittal on the conspiracy charge because the Commonwealth proceeded on both co-conspirator and accomplice liability theories. We agree.
Moreover, even if we were to conclude the verdicts were inconsistent, Hendricks would not be entitled to relief.
It is well-settled that inconsistent verdicts are permissible in Pennsylvania. Inconsistent verdicts, while often perplexing, are not considered mistakes and do not constitute a basis for reversal. Rather, the rationale for allowing inconsistent verdicts is that it is the jury's sole prerogative to decide on which counts to convict in order to provide a defendant with sufficient punishment. When an acquittal on one count [] is inconsistent with a conviction on a second count, the court looks upon the acquittal as no more than the jury's assumption of power which they had no right to exercise, but to which they were disposed through lenity. Thus, this Court will not disturb guilty verdicts on the basis of apparent inconsistencies as long as there is sufficient evidence to support the verdict. Further, [a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence[.]Commonwealth v. Talbert , 129 A.3d 536, 545 (Pa.Super. 2015) (internal citation and quotations omitted) (alterations in original), app. denied, 138 A.3d 4 (Pa. 2016).
To the extent that Hendricks argues that the evidence to support his conviction for third-degree murder was insufficient, the PCRA court determined there was sufficient evidence to support the conviction.
I find there was sufficient evidence to sustain the guilty verdict for third degree murder. There was evidence presented that the defendant helped set-up the victim; that he arrived at the victim's house with [] Lont; that he communicated back and forth with both the victim and Lont prior to the shooting; and that he coordinated with Lont to flee the victim's house and subsequently meet up with Lont.PCRA Ct. Op. at 5 n.4. Because the PCRA court determined that Hendricks' underlying substantive claim does not have arguable merit, and this determination is supported by the record and free of legal error, we need not address the remaining ineffectiveness prongs.
Accordingly, the PCRA court properly denied Hendricks' PCRA petition.
Order affirmed.
Justice Fitzgerald joins in the memorandum.
Judge Shogan filed a concurring/dissenting memorandum Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/11/2017
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