J-S89027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MATTHEW HENDRICKS

                            Appellant                    No. 234 EDA 2016


                 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.:                                FILED JULY 11, 2017

       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-
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
J-S89027-16



trial conviction1 for third-degree murder,2 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,3 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.

       On June 19, 2014, Hendricks filed a counseled PCRA petition, alleging

a Brady4 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.5 Also on January 21, 2015, Hendricks’ counsel filed a motion
____________________________________________


       1
       Hendricks was acquitted of criminal conspiracy to commit homicide,
18 Pa.C.S. § 903(a)(1).
       2
           18 Pa.C.S. § 2502(c).
       3
        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.
       4
           Brady v. Maryland, 373 U.S. 83 (1963).
       5
       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.



                                           -2-
J-S89027-16



to withdraw.    That same day, the PCRA court granted the motion and

appointed new PCRA 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]?

          2. Whether the PCRA court erred when it denied relief on
          the basis of the inconsistent verdicts?

Hendricks’ Br. at 6.

      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



                                    -3-
J-S89027-16


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

testimony6 at the PCRA hearing.7               At the hearing, Gordon testified as

follows:

           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?
____________________________________________


       6
        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).
       7
        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.



                                           -4-
J-S89027-16


         A. Yes.

         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. []

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.

      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


                                    -5-
J-S89027-16


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


                                        -6-
J-S89027-16


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).



                                      -7-
J-S89027-16


     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.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




                                    -8-
J-S89027-16




              -9-
                                                                             Circulated 04/25/2017 08:38 AM




      IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
                            CRIMINAL DIVISION


COMMONWEALTH OF PENNSYLVANIA                              No.    3173-2009

              vs.

MATIHEW HENDRICKS,

                           Defendant
                                                                                ---.-
                                                                                r-
                                                                                                 'c5
                                                                                                     -
                                                                                                     -
                                                                                                     c:>     ~
                                        **********                                                   n
APPEARANCES:                                                                                             I
                                                                                     r=:
                                                                                      - ,             C""
                                                                                                             -,
Jay W. Jenkins, Chief Deputy District Attorney
      On behalf of the Commonwealth                                                                      -
Philip D. Lauer, Esquire                                                                    ,_   )



       On behalf of the defendant

                                        **********

                                           OPINION

          On March 18, 2011, following a jury trial, the defendant was found guilty of one

count of Murder of the Third Degree1 and not guilty of Criminal Conspiracy to commit

Murder of the First Degree relating to the shooting death of David Rivera. The evidence

at trial showed that the shots that killed Mr. Rivera were fired by co-defendant Clyde

Lont, who at the time of the defendant's trial had pleaded guilty to Murder of the Third

Degree, but had not yet been sentenced. Following the verdict, I ordered a Pre-

sentence Investigation Report (PSI), and on May 3, 2011, I sentenced the defendant to

a period of confinement of not less than 20 years nor more than 40 years in a State

Correctional Institution.




1
    18 Pa.C.S.A. 2502(c)


                                          - 1 -
        On May 10, 2011, the defendant filed Post-Sentence Motions consisting of the

following: (1) Motion for New Trial based on after-discovered evidence relating to a

statement made by Mr. Lont; (2} Motion for New Trial based on trial court error; and (3)

Motion for New Trial based on juror misconduct. On August 3, 2011 , the defendant

made an oral motion for a 30-day extension for decision on the motions, pursuant to

Pa.R.Crim,P. 720(B)(3)(b), which I granted. On August 10, 2011, the defendant filed an

amended post-sentence motion consisting of a Motion to Reconsider and Modify

Sentence. Hearings on the motions were held on August 16, 2011, and September 8,

2011. I took the motions under advisement, and the parties submitted briefs. This

opinion follows.

                                  Summary of the Facts

Trial Testimony

        On the night of April 20, 2007, Prisilia Bonila was dropping off her friend, Anesha

Valez, at Valez's home at 1961 Hillcrest Road in the Parkridge Housing Development in

Bethlehem, Pennsylvania. At the time, Bonila's cousin, Tonya Beltran, and Beltran's

boyfriend, David Rivera (a.k.a. "D"), lived at 1933 Hillcrest Road. While Bonila was

sitting in her car outside Valsz's house, a Chrysler 300 with New York plates drove past

her heading in the direction of Beltran's residence. The car had tinted windows, so

Bonila could not see how many occupants were inside. It was later determined that the

Chrysler 300 belonged to co-defendant Clyde Lant (a.k.a. "Doughboy"/ "Dough" or

''Fresh"),

        Ms. Bonila proceeded to leave Ms. Valez's house and drive to Ms. Beltran's

house. On the way, Bonila passed the same Chrysler 300 parked on the side of the




                                         -2-


               ·---·----·-·····-···
road a few houses away from Beltran's house. Bonila pulled into Beltran's driveway and

beeped her horn: Mr. Rivera came outside. Bonila asked Rivera if Beltran was home,

and Rivera advised she was not. Bonila, referring to the Chrysler 300, asked Rivera if

he knew who's car that was, and R.ivera said, "no." At that time, Bonila heard Rivera's

Nextel phone "chlrp" and heard Rivera say, "Is that you?" Bonila did not hear a

response. Bonlla proceeded to pull out of the driveway and drive in the direction of the

Chrysler 300 back towards Valez's residence. When Borrila passed the Chrysler, she

observed two figures in the front seats of the vehicle. She then observed   a tall,   black

man exit the rear passenger side of the vehicle and walk towards Beltran's house. The

man was wearing a.whlte shirt and a new pair of "Jordan" sneakers. Bonila did not

recognize the man.

       Ms. Boni la arrived back at Ms. Valez's house and stayed for approximately 5

minutes. She left Velez's and headed out of the housing development, which was in the

opposite direction than Ms. Beltran's residence. As she was driving, Bonila observed

the same tall, black man walking fast down the street. Ms. Bonila slowed down, asked

the man if everything was all right, and asked him if he needed a ride. The man walked

up to her car and got into the rear driver's side of Bonila's car. Bonila asked the man if

he was ok, and the man said, "[I] don't know what happened; dude needs medical

attention." Boni la asked the man his name, but he would not provide it to her. The man

was acting agitated and jumpy, so Bonila asked him to get out of her car. Bonila pulled

over in front of a McDonald's   on Union   Boulevard, and the man exited. Bonila did not

see where the man went.




                                           -3-
       Thinking something     may be wrong     at Ms. Beltran's house,     Ms.   Bonila called

Beltran's house, but the phone was busy. Bonila drove back to Beltran's and pulled up

in front. She noticed that the front screen door to Beltran's house was closed, but the

inner door was open. Bonila walked up and yelled for Mr. Rivera, but did not get a

response. She opened the screen door and started to walk inside. As she did, she saw

shell casings on the floor and Rivera's Nextel lying on a rug. She then looked towards

the kitchen and saw Rivera lying motionless on the floor. Bonila left the house and

called 911. David Rivera was later pronounced dead. His cause ofdeath was due to

multiple gunshot wounds, and his manner of death was ruled a homicide.2

       Following the shooting, sometime after 11 :00 PM, Janelle Gordon, Mr. Lont's

girlfriend atthe time, received a call from Mr. Lont. Lont asked Gordon to go pick up the

defendant, Matthew Hendricks (a.k.a, "Shy"         or "Stink   Ass") at the McDonald's on Union

Boulevard and drive him to the Exxon in Easton. Gordon subsequently drove to the

McDonald's and picked up the defendant. Gordon saw the defendant wearing a white                   T. .
shirt and a hat. When the defendant got into her car, Gordon smelled PCP on his

person.' Thereafter, she drove the defendant to the Exxon in Easton.

       At the Exxon, Ms. Gordon saw the Chrysler 300. She could see that Kadaf Miller

was in the driver's seat and Mr. Lont was in the passenger seat. Lont then exited the

Chrysler 300 and the defendant exited Gordon's car. The defendant got into the

passenger seat of the Chrysler 300 and Lont got into the passenger seat of Gordon's

vehicle. Lont.also smelled like PCP. Gordon proceeded to drive west on Route 22.

During the drive, Lont confessed to shooting Mr. Rivera, and subsequently disposed of

2
  Mr. Rivera sustained seven gunshot wounds. Three of the wounds were to Rivera's back, including one
contact wound and one fired within close range.
3
  Ms. Gordon was familiar with the smell due to Mr. Lent's use of the drug.


                                            -4-
the gun and clip.4     Gordon and Lont spent the night in a hotel room. The following

morning, Gordon drove Lont to New York, dropped him off, and returned to

Pennsylvania.

        Gordon and Lont's relationship ended sometime in August 2007. Gordon

subsequently spoke with the police, but admittedly withheld information until she

testified in front of a grand jury in November 2008. Gordon testified at the defendant's

trial that she withheld information because she was scared.

        According to Kadafi Miller; on the night of April 20, 2007 r he called Mr. Lont and

asked to exchange cars with him because it was Friday nlqht.and Miller wanted to drive

a nicer car. The two met near 11th Street in Easton, and Miller took the Chrysler 300 and

Lant took Miller's Acura TL. Miller said his girlfriend at the. time, Jennifer Diaz, was with

him when he switched cars, and the defendant was not with him.

        The Chrysler 300 was low on gas, so Miller drove to a nearby Exxon gas station.

When Miller left the gas station, a police vehicle pulled behind him with lights and sirens

on. Miller dld not pull over, but rather led police on a chase Which eventually ended in

the 3300 block of Freemansburg Avenue," Miller exited the vehicle and ran to a friend's

house next to where he stopped; Ms. Diaz ran to a nearby mini mart.6 Eventually, the

police surrounded the house. While hewas inside the house, Defendant Lont called

Miller and told him he wanted his car back. Miller has admitted he left money, two

phones, and the keys to the Chrysler 300 inside the house. Miller was subsequently
4
   The testimony was that Mr. Lont threw the gun clip outof the car on a back road near New Smithville,
and threw the gun into the Lehigh River in south Bethlehem.
5
   Mr. Miller advised he ran because he had an outstanding warrant Due to the high speeds ofthe pursuit,
a tire on the Chrysler 300 popped. Pursuing officers described seeing debris, sparks, and gouge marksin
the street. Officers from Easton, Palmer Township, Wilson Borough, and the State Police were involved in
the pursuit.
11
   Ms. Diaz testified on behalf of the defendant and indicated she was with Mr. Miller and did flee when he
stopped the car.


                                               -5-
                            -.,




taken into custody. A leather coat, car keys, a large amount of money, and two cell

phoneswere recovered from the house.

        Sergeant William Dosed lo and Lieutenant Mark Diluzio, of the Bethlehem Police

Department's Criminal Investigation Unit, were assigned to investigate the shooting

death of Mr. Rivera. Through the investigation, Dosedlo learned that the defendant may

have been involved in the shooting. On June 13, 2007, Dosedlo and Diluzio wentto the

Pennsylvania Probation and Parole Department in Allentown to interview the defendant.

The detectives met with the defendant and explained that they were investigating the

death of David Rivera. The detectives then interviewed the defendant.

        During this interview, the defendant told the detectives that on the night of April

20, 2007, he received a phone call at home from Mr. Rivera. Rivera told the defendant

that he was sending someone over to pick him up and bring him to Rivera's house in

the Parkridge Housing Development. The defendant said he was picked up on the south

side of Easton by two females in a white Toyota Corolla. The females drove the

defendant to a Spanish store near Rivera's house and dropped him off.7

        The defendant advised that he walked to Mr. Rivera's residence and the two

started watching a Yankees game. A few minutes later, someone knocked on Rivera's

door. Rivera went to the door, opened it, and began talking through a screen door to an

individual standing outside. The defendant could hear a male voice speaking, but he did

not recognize the voice'. He also could not hear what the man and Rivera were saying.

After a short time, Rivera returned to the living room and continued watching the game;




7
 According to the defendant, Mr. Rivera did not want people dropped off in front of his house since he
sold drugs from his home.


                                              -6-
         The defendant told the detectives that at some point he walked into the kitchen

and, shortly thereafter, heard the door open and heard several gunshots. The defendant

said he ran from the residence out a back door and hid in a section of woods for a few

minutes. He then walked       to the   front of Mr. Rivera's house and observed Ms. Bonita at

the front of the residence. He said he yelled to Bonila to get help because Rivera had

been shot, and then left the scene.

         The defendant was questioned regarding information the detectives had obtained

that he went to Mr. Rivera's family's house after the shooting and admitted being

involved in Rivera's death. The defendant denied this. When questioned about whether

he knew somebody by the nickname Doughboy, the defendant advised that he knew a

lot of "Dough boys" and "Douqhs", but was not friends with any of them.

         During the interview, the defendant began to cry and became very emotional. On

two occasions, the defendantvomited           into a trashcan. The defendant made statements

to the detectives that "it happened so fast" and "he should not have died." The

defendant also said that he "would not kill his friend." The interview subsequently

ended.

         As part of the investigation, detectives obtained subscriber information, incoming

and outgoing calls, duration of calls, and originating and terminating cell phone tower

information for several cell phones associated with this case. With this information,

Detectives learned Mr. Lant utilized a cell phone with telephone number 484-550-0184

and direct connect number 183*620* 4212, and the defendant utilized a cell phone with

telephone number 215-730-8204 and direct connect number 183*635*3097 .8 The


II
 Additionally, the defendant admitted having that phone with him the night of the shooting and admitted
making calls wlth that phone.


                                              -7-


                                                                             -------~·--·--·-   ...·---·-·-·--··"· ..···-·--·""'""""'""'"
               phone found with Mr. Rivera's body had a phone number of 718'-502-2583            and a direct

               connect number 176"'885"'8944.     The last numberto communicate with Rivera's phone

               prior to his murder was 183*635*3097, the defendant's number. The records also

               indicated l.ont and the defendant communicated with each other before and after the

               shooting on the night of April 20, 2011. Additional information showed that the

               defendant also communicated with Mr. Miller that night.9

                        Finally, DNA evidence linked Mr. Lant to the Chyrsler 300, and fingerprint

               evidence connected the defendant and Mr. Millerto the Chrysler. Notably, the

               defendant's fingerprints were found on the exterior of the rear, passenger side door.

                        The defendant testified at his trial. He advised that on April 19, 2007, he was

               trying to get PCP, but could not reach any of his contacts. As such, Mr. Miller said he

               knew someone that could get PCP, and used the defendant's phone to call his contact.

               Miller and the defendant met with this person to purchase PCP .. Miller introduced the

               man to the defendant as "Fresh," but the defendant testified that he did not know Fresh

               was Clyde Lont. According to the defendant, the numerous calls from the defendant's

               cell phone to Mr. Lent's cell phone were made by Miller.

                        Sometime during the day on April 20, 2007, the defendant met up with Mr. Miller

               and Fresh to go to   a liquor store in Easton. Fresh was driving, and the defendant sat in
               the back seat, but could not recall what type of car he was ln. Later that day, the

               defendant made plans to go to Mr. Rivera's house to discuss a new car for Rivera.

               Rivera called the defendant and said he wanted PCP and was sending a girl to pick up

               the defendant. A female named "Tay" picked up the defendant, dropped him off at a

               9
                The two phones recovered from the house following Mr. Miller's arrest were associated with phone
               number 434-634-0095 / direct connect number 168'*271897*12and phone number 610-496-7111 / direct
               connect number 168"663*5753.


                                                          -8-

·--,.··--·-·-~·---·-   ---·------------·------
  Spanish store near Rivera's house, and the defendant walked              to Rivera's house. The
  defendant said he was wearing a blue hooded sweatshirt and black boots. He arrived at

  Rivera's house sometime after 10:14 PM, and did not notice a Chrysler 300 in the

  area." He also testified that he did not arrive to Rivera's in a Chrysler 300 and did not
  get out of the backseat of a Chrysler 300 at Rivera's.

               Inside Rivera's residence, the defendantwas on the phone in the kitchen when

  he heard Rivera talking to someone through the screen door. He then heard the door

  open and heard gunshots. The defendant dropped the phone, ran out the back door,

  and hid in some woods for a short. time.
                                       .   He then walked around
                                                   .       .   . the. comer to the front
                                                                             .        .  of.




  the house and saw a woman (Bonilla) he thought to be related to Rivera's girlfriend

  sitting in a car. He ran to the car, got in, and said "D needs medical attention." He

  believed the woman was acting too "nonchalant," so he got out of the car near the

  McDonald's on Union Boulevard. The defendant called several people in an attempt to

  get a ride. He reached a woman named "Tweena," and she subsequently picked him

  up. According to the defendant, he never saw Janelle Gordon and she did not pick him

  up that night. The defendant also denied being in a car with Mr. Miller following the

  shooting and denied meeting up with Mr. Lont in Easton.

               Tweena drove the defendant to the workplace of Robert Negron (a.k.a. "Macho"),

  one of the defendant's friends. Negron was not there, so the two drove to the

  defendant's house in Easton and the defendant got his own vehicle. The defendant then

  drove to Negron's house in Bethlehem. Negron, his girlfriend, and their children were at

  the house. Negron's girlfriend drove everyone back to Rivera's house. The defendant

  10
    At the time, the defendant believed it was still iight outside when he arrived at Rivera's house.
  However, at trial, he confirmed making calls back and forth from his phone to Rivera's phone between
  7:26 PM and 10:14 PM, and said hewould not have been calling Riverawhile in the house with him.


                                               - 9~


·-----   ·--
       recalled seeing the police there, but said he did not talk to any officers because he was

       on state parole and was worried about getting in trouble.

              Subsequentto   the shooting, the defendant went to the home of Mr. Rivera's

       mother, Lilliam, and met with Rivera's family and friends. The defendant admitted to the

       gmup that he was present when Rivera was shot, but said he did not know who shot

       Rivera. At trial, the defendant admitted he embellished the story of what happened,

       specifically telling people that the shooter came in and hit the defendant in the mouth

       with the gun, chipping his tooth. The defendant said he did this because he believed

       Rivera's family and friends were upset because he ran following the shooting instead of

       helping Rivera.

              At trial, the defendant admitted he called Mr. Lont while he was at Llllarn's house.

       He stated everyone at the house was looking for drugs, and he recognized Lent's

       number in his phone as being someone Mr. Miller previously called for drugs using the

       defendant's phone. According to the defendant, he did not know he was calling Lont.

              The defendant testified that he did not shoot David Rivera, he did not have any

       understanding with anyone else in regard to shooting Rivera, and he did not know

       anything was going to happen to Rivera on April 20, 2007.

       Post-sentence MotionHearing - August 16, 2011

              Following the defendant's trial, co-defendant Clyde Lant was sentenced on April

       25, 2011. On or about April 30, 2011, the defendant's counsel; Philip D. Lauer, Esquire,

       received a notarized statement from Mr. Lant regarding the shooting of Mr. Rivera. In

       the statement, Lant indicated he acted without the assistance, planning, or knowledge




                                                         - 10 -


--·-·--·-------·-·----                ·-------- ..·--- ..······--·-.,---···- ..··--····""''""""""-···-··..
                                                                                                         ·······-·-·'"••••""''"""""''-
           of the defendant. At the defendant's post-sentence motion hearing on August 16, 2011,

           Lant testified on behalf of the defendant.

                  Mr. Lont advised that he did not speak to the defendant about killing Mr. Rivera

           and he did not have any agreement with the defendant to     kill Rivera.   Lant testified that

           he in fact had no plan to kill Mr. Rivera when he went to his house on the nightof April

           20, 2007, and it just happened "spur of the moment." He said Rivera charged at him and

           tried to take his gun, so he began firing. Lant also stated that he never spoke with the

           defendant on the phone before that evening, on that evening, or after that evening, and

           stated the defendant was not with him when he arrived at Rivera's house. Lont testified

           he left Rivera's with Kadafi Miller, and while they were driving, the defendant called

           Miller and told him that he was at Rivera's when Rivera was shot. Lont also testified that

           he and Miller drove to Easton and that he saw the defendant arrive there with Ms.

           Gordon. Thereafter, he got in the vehicle with Gordon and the defendant got in the

           vehicle with Miller.

                  Mr. Lont admitted he pied guilty to criminal conspiracy with the defendant

           regarding the shooting of Rivera, but stated he only did that because it was part of the

           deal and he Just wanted to get everything over with. He denied confessing to Janelle

           Gordon and denied disposing of the gun. Lont stated Ms. Gordon got rid of the gun.

                  Lieutenant Dosedlo also testified at the hearing. Dosedlo indicated he was

           involved in an interview with Mr. Lont following the shooting. At the interview; Lant

           denied shooting David Rivera, and told Dosedlo that he only confessed to his girlfriend

           because he would say things to women in order to manipulate them. l.ont also told




                                                   - 11 -


----------------·-·---   ·-----------------
Dosedlo that he and Rivera had mutual friends, including Shy, although he did not know

Shy's real name.

Post-sentence Motion Hearing - September 8, 2011

       Gavin Holihan, Esquire, counsel for Clyde Lont. testified that he and Mr. Lont met

with Attorney Lauer and the defendant to discuss Mr. Lont testifying at the defendant's

trial. At the meeting, Attorney Holihan advised Attorney Lauer thatLent would not testify

at the trial; and that if Lont were called as a witness, he would exercise his 5th

Amendment right against self-incrimination.

       Ajuror from the defendant's trial (Juror 1) testified that at some point during the

trial, a second juror (Juror2) made a statementin front of all the jurors regarding a

possible video Juror 2 had seen. Juror 2 indicated he had seen Mr. Rivera's mother

scbblnq following another verdict in connection with this case. Based on the statement,

Juror 1 assumed Juror 2 had seen some sort of video.

                          Discussionand Conclusionsof Law

Motion for New Trial - After-Discovered Evidence

       The defendant asks the court to grant him a new trial based on after-discovered

evidence, namely the testimony by Mr. Lont that the defendant was not involved in the

planning or commission of the killing of David Rivera.

       A new trial may be granted on the basis of after-discovered evidence if the new

evidence (1) has been discovered afterthe trial and could not have been obtained at or

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 for impeaching a witness;

and (4) is of such a nature and character that a different verdict will likely result if a new




                                         - 12 -
                                                                     ..-,_·.




  trial is granted. Commonwealth v. Nocera, 582 A.2d 376, 380 (Pa.Super. 1990). A trial

  court's decision not to grant a motion for new trial based on after-discovered evidence

  will not be disturbed on appeal absent a clear abuse of discretion. Commonwealth v,

  Parker, 431 A.2d 216 (Pa. 1981 ).

           Additionally, any post-sentence testimony of jailed accomplices whose sentences

  have been imposed by the court is looked upon with much disfavor. Commonwealth v

  Lambert, 603 A.2d 568 (Pa. 1992). A co-conspirator already serving time has little to

  lose by attempting to free his partner. Commonwealth v. Tetvelon, 345 A.2d 671 (Pa.

  1975).

           In the present case, I do not find that the testimony of Clyde Lont constitutes

  after-discovered evidence warranting a new trial. Initially I note, and the Commonwealth

  concedes, that the evidence was clearly unavailable at the time of trial since Attorney

  Holihan advised Attorney Lauer that Mr. Lont would invoke his 5th Amendment right

  against self-incrimination if called to testify. Commonwealth v. Fiore, 780 A.2d 704

  (Pa.Super, 2001 ). However, I do not find the testimony of Mr. Lont to be credible, nor do

  I find it to be of such a nature that it would result in a different verdict ifa new trial were

  granted.

           First, Mr. Lont's testimony contradicts much of the evidence presented at trial.

  Lont denied confessing to Ms. Gordon and denied disposing of the gun; contrary to the

  credible trial testimony of Gordon. Lant testified he never spoke with the defendant

  before or after the shooting, despite the cell phone records indicating multiple calls back

  and forth between the two men. Notably, the defendantadmittedto calling Lont

  following the shooting in an attemptto purchase drugs. Additionally, Lant testified the




                                            - l3 -


·---------                                                                     ·---   ---~·-------·--·--·-   ..---h···   --.,- ........ ..,_,_..,_ ...,, ._.,. __
           defendant was not with him when he arrived at Mr. Rivera's house, despite the credible

           testimony of Ms. Bonilla that she saw the defendant exit the rear passenger side of

           Lont's vehicle, and the fingerprint evidence linking the defendant to the vehicle.

                  Second, Mr. Lont's testimony contradicts the defendant's own version of events.

           The defendant maintains that Ms. Gordon did not pick him up following the shooting,

           that he did not meet up with Mr. Lant in Easton, and that he did not get ln a vehiclewith

           Mr. Miller that night. Lent's testimony was that he saw Gordon drop off the defendant in

           Easton and saw the defendant get into the car with Miller.

                  Finally, and perhaps most importantly, Mr, Lent's testimony is inherently

           unreliable. Lent's statements came after he was sentenced for his role in the homicide

           and therefore had nothing to lose by attempting to free the defendant - hls accomplice.

           In light of all the credible evidence presented at the defendant's trial, I do not find that

           the addition of Lent's conflicting testimony would result in a different verdict if a new trial

           were granted. As such, the defendant's motion for a new trial based on after-

           discovered evidence is denied.

           Motion for New Trial • Trial Court Error
                                           First Degree Murder Charge

                  The defendant next alleges that I erred in submitting the charge of first degree

           murder to the jury because there was no evidence of a specific intent to kill on the part

           of the defendant.

                  "A trial court shall only instruct on an offense where the offense has been made

           an issue in the case and where the trial evidence reasonably would support such a

           verdict." Commonwealth v. Browdie, 671 A.2d 668, 674 (Pa. 1996). In the instant case,




                                                    - 14 -


--------·--·---
a charge of first-degree murder was at issue in the defendant's case, and the evidence

presented would have supported a guilty verdict to such charge.

       To sustain a conviction for first-degree murder, the Commonwealth must
       prove, beyond a reasonable doubt, that a human being was unlawfully
       killed, that the accused was responsible for the killing, and that the
       accused acted with a specific intent to kill, A defendant may be convicted
       of first-degree murder on a theory of accomplice liability so long as the
       facts support the conclusion that the defendant aided, agreed to aid, or
       attempted to aid the principal in planning or committing the offense, and
       acted with the intent to promote or commit the offense, i.e., the intentional
       killing. The Commonwealth may prove that a killing was intentional solely
       through circumstantial evidence.                                        .·

Commonwealth v. Pagan, 950 A.2d 270, 278-279 (Pa. 2008).

       The evidence in this case showed that the defendant aided Clyde Lant in killing

David Rivera and did so with a specific intent to kill. There was evidence presented that

the defendant worked with Lont to set-up Rivera, which included arriving at Rivera's

house With Lant just prior to the shooting; communicating with both Rivera and Lant

prior to the shooting; coordinating with Lant to flee from Rivera's house; and

communicating with and meeting up with Lont following the shooting. From this

evidence, the jury could have reasonably concluded that the defendant coordinated with

Lant in planning and carrying out the killing of David Rivera, and that the defendant did

so with the specific intent to kill Rivera. As such, I did not err in submitting the charge of

first degree murder to the jury

       Additionally, even if I were to find that it was an error to submit that charge to the

jury, it was harmless. In alleging an error in jury instructions, a new trial is warranted

only where such error has been prejudicial to the defendant. Commonwealth v. May,

656 A.2d 1335, 1343 (Pa. 1995}. It is difficult to see how the defendant was prejudiced




                                         - 15 -
        by the inclusion of the first degree murder instruction when the jury did not find the

        defendant guilty of that charge. As such, a new trial is not warranted.

                                                Cell Phone Evidence

                The defendant also alleges I erred in admitting into evidence information related

        to the ownership and usage of a cell phone found near David Rivera's body following

        the shooting.11 This allegation is wholly without merit.

                As regardsthe      admissibility of evidence, the threshold inquiry is whether the

        evidence is relevant. See Pa.R.E. 402; Commonwealth v. Cook, 952 A.2d 594 (Pa .

        2008). Relevant evidence is any evldence "having any tendency to make the existence

        of any fact that is of consequence to the determination of the action more probable or

         less probable than it would be without the evidence." Pa.R.E. 401.

                Whether David Rivera and the defendant communicated via cell phone just prior

        to Mr. Rivera's murder is certainly relevant           ln determining   whether the defendant aided

        in the preparation and killing of Rivera. Furthermore, the Commonwealth sufficiently

        established a link between the cell phone and Rivera. The evidence showed that Pricilla

        Boni la saw Rivera talking on a Nextel phone just prior to his murder; a Nextel phone

        with direct connect number 176*885*8944 was found near Rivera's body; in Kadafi

        Miller's cell phone, direct connect number 176*885*8944 was associated with "D," a

        nickname David Rivera was known by; and the defendant acknowledged that direct

        connect number 176*885*8944was              Rivera's. The defendant's allegation does not

        warrant a new trial.


        11
          In the defendant's initial brief, he indicated this issue would be addressed in a supplemental brief.
        However, other than a general allegation that I erred in admitting the evidence, the defendant does not
        address this issue in his supplemental brief, nor does he indicate he has withdrawn this issue. In the
        event the defendant is still pursuing this issue, r will address the merits of the allegation.


                                                      - 16 -

--··-·-··-··--·------------------------
Motion for New Trial - Juror Misconduct

       When a court is made aware that a juror has been exposed to extraneous

information, which may have affected the juror's deliberation, the trial court must assess

the prejudicial effect of such influence. Commonwealth v, Messersmith, 860 A.2d 1078,

1085 (Pa.Super.2004).     In maklnqthls assessment, a court should consider: (1) whether

the extraneous influence relates to a central issue in the case or merely involves         a
collateral issue; (2) whether the extraneous influence provided the jury with information

they did not have before them at trial; and (3) whether the extraneous influence was

emotional or inflammatory in nature. Id. "Onlywhen there has been prejudice to the

accused does an act of juror misconduct require the granting of a new trial."

Commonwealth v. Flor, 998 A2d 606, 639 (Pa, 2010).

       The court may not consider the subjective impact the influence had on the juror,

but must determine how an objective, typical juror would be affected by such an

influence. Messersmith, 860 A.2d at 1085. The burden of proving that the extraneous

influence was prejudicial is on the moving party. Id. at 1086.

       In the case sub Judice. Juror 1 testified that she was made aware that Juror 2

may have seen a video of David Rivera's mother sobbing during another proceeding in

this matter. Juror 1 could not offer any further details on this incident. In fact, Juror 1

assumed it was a video that Juror 2 was referring to based on his statement that he had

seen Rivera's mother sobbing. Evert assuming Juror 2 had in fact seen a video in

regard to this case, I find it difficult to conclude that it was prejudicial. It is not alleged

the video was played in the deliberation room, and outside the brief statement made by

Juror 2, the incident was not again discussed among the jurors. The potential



                                           - 17 -
              extraneous information was at best "vague, ambiguous and brief." See Commonwealth

              v. King, 990 A.2d 1172 (Pa.Super, 2010). lflnd the defendant has failed to prove that

              such information would have affected the deliberations of an objective juror. The

              defendant's motion for a new trial is denied.


              Motion for New Trial- Denial of Motion for Mistrial

                      In his post-sentence motions, the defendant alleges I erred in denying his motion

              for mistrial following testimony from Sergeant Dosed lo concerning the fact that Mr. Lant

              pleaded guilty to criminal conspiracy. The testimony at issue arose when Sergeant

              Dosedlo was recalled to the stand during the defendant's case-in-chief. During

              questioning    l:>y the   defendant's counsel, the following exchange took place:

                      Q [Attorney Lauer]: You agree, don't you, that Clyde Lant has admitted to
                                               shooting David Rivera?


                      A [Dosed lo]:            Yes. He also admitted to being in a conspiracy with
                                               your client.                             ·


                      Immediately following this, Attorney Lauer objected and made a motion to strike.

              I sustained the objection, granted the motion to strlke, and instructed the jury    to
              disregard the latter portion ofthe witness's testimony. Thereafter a sidebar discussion

              took place and Attorney Lauer moved for a mistrial. The jury was subsequently

              dismissed and the parties made arguments on the motion for mistrial. Thereafter, I

              denied the defendant's motion. When the jury was brought back in, I gave the following

              curative instruction to the jury:

                      Yesterday, Detective Dosedlo made a comment that is not proper
                      evidence in this case, and I will ask you to recall that comment. It was
                      objected to by Attorney Lauer, and I sustained the objection, and I granted
                      his motion to strike. In no way, shape, or form are you to consider this as


                                                           - 18 -


---·-····-··-·-····---·-········
        evidence aqalnst the defendant concerning the charges in this case. You
        are to totally disregard that testimony.

After giving the curative instruction to the jury, the defendant continued with his

case-in-chief.

        As regards the denial of a motion for mistrial, our courts have said:

        A mistrial is an 'extreme remedy ... [that] ... must be granted only when an
        incident is of such a nature that its unavoidable effect is to deprive
        defendant of a fair trial.' A trial court may remove taint caused by improper
        testimony through curative instructions. Courts must consider all
        surrounding circumstances before finding that curative instructions were
        insufficient and the extreme remedy of a mistrial is required. The
        circumstances which the court must consider include whether the
        improper remark was intentionally elicited by the Commonwealth, whether
        the answer was responsive to the question posed, whether the
        Commonwealth exploited the reference, and whether the curative
        instruction was appropriate.

Commonwealth v. Bracey, 831 A.2d 678, 682 (Pa.Super. 2003) (citations omitted). "The

law presumes that jurors will follow the trial court's instructions." Commonwealth v.

Gillen, 798 A.2d 225, 231 (Pa.Super. 2002).

        While the remark did corns from the police prosecutor in this case, it was not

elicited by the Commonwealth. nor was it exploited by the Commonwealth.12 The

remark was certainly      nonresponsive      to the question,    but I do not bel.ieve it was of such a


nature that it could not be corrected with a curative instruction. I believe striking the

testimony from the record and providing a curative instruction was the appropriate

course of action, and a mistrial was not warranted. Furthermore, I find the comment did



12
   It is worth noting that just prior to the remark in question, Attorney Lauer asked Sergeant Desedlo the
same question and the attorney for the Commonwealth, Attorney Jay Jenkins, objected and asked to
approach. In a sidebar discussion, Attorney Jenkins advised the court that he was concerned thatthe
question by Attorney Lauer would open the door to what Mr. Lont pied guilty to. Despite the concern
raised by Attorney Jenkins, Attorney Lauer decided to proceed with the question.



                                              - 19 -


                                          ·---··------~····-····
not prejudice the defendant considering the jury found the defendant not guilty of

criminal conspiracy. As such, the defendant's motion is denied.


Motionto Reconsiderand ModifySentence

      The defendant next alleges the sentence imposed was excessive under the

circumstances and asks for a modification of sentence. I find the defendant's allegation

to be without merit

       Sentencing is a matter vested in the sound discretion of the sentencing judge,

and a sentence will not be disturbed on appeal absent a manifest abuse of discretion.

Commonwealth v. Johnson, 961 A.2d 877 (Pa.Super. 2008).

       In order to constitute an abuse of discretion, a sentence must either
       exceed the statutory limits or be so manifestly excessive as to constitute
       an abuse of discretion. Further, a sentence should not be disturbed where
       it is evident that the sentencing court was aware of sentencing
       considerations and weighed the considerations in a meaningful fashion.

Commonwealth v. Miller, 965 A.2d 276, 277 (Pa.Super. 2009) (citations omitted). When

a court has the benefit of reviewing a PSI, "it is presumed that the sentencing court 'was

aware of the relevant information regarding defendant's character and weighed those

considerations along with mitigating statutory factors.'" Commonwealth v. Tirado, 870

A.2d 362, 368 (Pa.Super. 2005) (citations omitted).

       I submit I did not err in sentencing the defendant to a period of incarceration of

20 to 40years   in a state correctional institute. In sentencing the defendant, I took into

account all the information available to me at the time, including the PSI report, the

witnesses presented, and the arguments of counsel. Additionally, I considered the need

to protect the community, the gravity of the offense for which the defendant was found

guilty, and the rehabilitative needs of the defendant. Pa.C.S.A. § 9721(b). At the time of



                                        - 20 -
sentencing, the defendant had a prior record score of 3 and the charge carried an

offense gravity score of 14. The standard range minimum was 129 to 240 months.

      Taking into consideration all the information available to me at sentencing, I did

not abuse my discretion in sentencing the defendant. The defendant's motion is denied.

                                      Conclusion

      Based on the foregoing reasons, the defendant's Post-Verdict Motions are

without merit and are therefore denied.



October 6, 2011




                                      - 21 -
