J-S16028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JHERI LAMAR MATTHEWS,

                         Appellant                  No. 1135 WDA 2016


            Appeal from the PCRA Order entered June 2, 2016,
            in the Court of Common Pleas of Allegheny County,
           Criminal Division, at No(s): CP-02-CR-0016067-2005.


BEFORE: MOULTON, RANSOM, and PLATT,* JJ.

MEMORANDUM BY RANSOM, J:                                FILED MAY 25, 2017

      Appellant, Jheri Lamar Matthews, appeals pro se from the order

entered June 2, 2016, denying his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The pertinent facts and procedural history have been summarized as

follows:

            Appellant was charged with homicide and criminal
      conspiracy arising from the shooting death of Keith “Spud” Watts
      outside Carrick High School on March 16, 2005.                 The
      Commonwealth presented extensive circumstantial evidence that
      Appellant and his co-defendants, Shawn Wilmer and Howard
      Kelley, conspired to kill the victim because they believed that the
      victim had shot Appellant in the neck nine months earlier, in
      June 2004.

          The web of evidence to support this conclusion may be
      summarized as follows. One day after Appellant was shot, co-



*Retired Senior judge assigned to the Superior Court.
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       defendant Kelley and two other men (Nathan Walters and Walter
       Hill) drove around looking to get revenge on the victim. All
       three men opened fire on a group of people standing on the
       street, but the victim was not injured at that time. On February
       9, 2005, two people opened fire on the house where the victim
       and his grandmother resided. Appellant and Kelley talked about
       how Appellant had shot the victim, but missed.

             Finally, the Commonwealth presented evidence that at
       1:45 p.m. on March 16, 2005, co-defendants Wilmer and/or
       Kelley drove up in a Hyundai Sonata, opened fire on the victim,
       and killed him as he was sitting in the driver’s seat of his vehicle.
       Seven shell casings were recovered from the Sonata.              The
       evidence did not establish that Appellant was the shooter, and
       did not conclusively establish that he was in the Sonata at the
       time. On the other hand, the Commonwealth showed that a
       receipt from a McDonald’s restaurant bearing Appellant’s
       fingerprint was found in the Sonata bearing a time-stamp of
       noon on March 16, less than two hours before the shooting.

             Moreover, after the shooting, Walters met with all three
       co-defendants. According to Walters, co-defendant Kelley said,
       “… we got that [n*****],” while Appellant nodded his head. At
       that time, co-defendant Kell[e]y argued with co-defendant
       Wilmer about whose gun actually fired the fatal shot. Finally,
       according to Davis, co-defendant Kelley talked about how Kelley
       and Appellant were lying in wait for the victim, discussing
       whether the safety on the rifle was on or off.

             A jury acquitted Appellant of murder, but convicted him of
       conspiracy. On November 5, 2007, Appellant was sentenced to
       20 to 40 years’ imprisonment.

Commonwealth v. Matthews, 986 A.2d 1259, *1-3 (Pa. Super. 2009)

(unpublished memorandum) (footnotes omitted).1



____________________________________________


1
  The jury found both co-defendants guilty of criminal homicide and
conspiracy. The trial court sentenced them both to life in prison.




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        Appellant timely filed an appeal to this Court, in which he claimed that

the trial court abused its discretion in not granting his continuance request

and in which he challenged the sufficiency of the evidence supporting his

conspiracy conviction. Finding no merit to either claim, this Court affirmed

on September 30, 2009. Matthews, supra.

        On February 25, 2010, Appellant pro se and timely filed a petition for

collateral relief. The PCRA court appointed counsel; PCRA counsel filed an

amended petition on May 27, 2011; and the Commonwealth filed its answer

on June 6, 2011. Thereafter, the PCRA court granted Appellant the right to

file a nunc pro tunc petition for allowance of appeal.2 PCRA counsel did so,

and our Supreme Court denied allowance of appeal on March 27, 2012.

Commonwealth v. Matthews, 40 A.3d 1235 (Pa. 2012), cert. denied, 133

S. Ct. 270 (October 1, 2012).

        Appellant pro se filed another PCRA petition on August 29, 2013. The

PCRA court appointed counsel, and, on September 24, 2014, PCRA counsel

filed   a   “no-merit”       letter   and      motion     to    withdraw    pursuant    to

Commonwealth            v.    Turner,       544    A.2d        927   (Pa.   1988),     and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

January 9, 2015, the PCRA Court sent Appellant Pa.R.Crim.P. 907 notice of

intent to dismiss Appellant’s petition. Appellant responded by seeking leave

to amend his petition and subsequently filed an amended petition on June

29, 2015.      The PCRA court again sent Rule 907 notice to Appellant on

____________________________________________


2
 The Commonwealth did not appeal the order granting nunc pro tunc relief.
Accordingly, this Court did not review the PCRA court’s decision.



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December 8, 2015, and Appellant again filed a response. By order entered

June 2, 2016, the PCRA court dismissed Appellant’s petition.             This timely

appeal follows. Appellant and the PCRA court have complied with Pa.R.A.P.

1925.


        Appellant raises the following issues:

        1. The [PCRA] court erred in dismissing [Appellant’s] claim that
           trial counsel [] rendered ineffective assistance by not
           impeaching Nathan Walter with his prior inconsistent
           statement.

        2. The [PCRA] court erred in dismissing [Appellant’s] claim that
           trial counsel rendered ineffective assistance by failing to file a
           timely severance motion.

Appellant’s Brief at 4.

        When examining a post-conviction court's grant or denial of relief, we

are limited to determining whether the court's findings were supported by

the record and whether the court's order is otherwise free of legal error.

Commonwealth v. Quaranibal, 763 A.2d 941, 942 (Pa. Super. 2000). We

will not disturb findings that are supported in the record.        Id.    The PCRA

provides no absolute right to a hearing, and the post-conviction court may

elect to dismiss a petition after thoroughly reviewing the claims presented

and determining that they are utterly without support in the record. Id.

        Because Appellant’s claims challenge the stewardship of trial counsel,

we apply the following principles. The law presumes counsel has rendered

effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.

Super. 2010).      The burden of demonstrating ineffectiveness rests on the


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petitioner. Id. To satisfy this burden, a petitioner must plead and prove by

a preponderance of the evidence that:          “(1) his underlying claim is of

arguable merit; (2) the particular course of conduct pursued by counsel did

not have some reasonable basis designed to effectuate his interests; and,

(3) but for counsel’s ineffectiveness, there is a reasonably probability that

the outcome of the challenged proceedings would have been different.”

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).                  Failure to

satisfy any prong of the test will result in rejection of the petitioner’s

ineffective assistance of counsel claim.      Commonwealth v. Jones, 811

A.2d 994, 1002 (Pa. 2002).

      In assessing a claim of ineffectiveness, when it is clear that a

petitioner has failed to meet the prejudice prong, the court may dispose of

the claim on that basis alone, without a determination of whether the first

two prongs have been met. Commonwealth v. Travaglia, 661 A.2d 352,

357 (Pa. 1995).    Counsel will not be deemed ineffective if any reasonable

basis exists for counsel's actions. Commonwealth v. Douglas, 645 A.2d

226, 231 (Pa. 1994). Even if counsel had no reasonable basis for the course

of conduct pursued, however, a petitioner is not entitled to relief if he fails to

demonstrate the requisite prejudice which is necessary under Pennsylvania's

ineffectiveness standard. Douglas, 645 A.2d at 232.

      Appellant first claims that trial counsel was ineffective for failing to

impeach Nathan Walters with a prior inconsistent statement. In making his


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argument, Appellant relies on a statement that Walters made to police in

which he described Appellant’s participation in the conversation between

Wilmer and Kelley as, “basically listening, determining what everybody was

saying. He didn’t say much.” In contrast, as summarized above, Walters

testified that Appellant was nodding in agreement. According to Appellant,

had trial counsel cross-examined Walters regarding this prior inconsistent

statement,

      [he] would not have had to get on the witness stand and
      contradict that evidence in order to shine light on dark areas in
      his case. Those dark areas being the unimpeached testimony
      from Walters who was the only Commonwealth witness to
      accuse [Appellant] of being a conspirator in this crime. In
      [Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992)], the third
      witness’s statement was properly admitted once the witness
      testified differently at trial.

            In [Appellant’s] case, all [trial counsel] had to do was
      confront Walters about why his testimony was different from his
      prior statement, admit it, and that would of made Walters’
      credibility unbelievable [sic]. He would of dug his own grave
      explaining why his story changed squarely on the requirements
      needed to fulfill a conspiracy against [Appellant] and that would
      have been effective assistance.

             The [PCRA] Court had a chance to make it right by
      agreeing with [Appellant] that impeaching Walters was in
      [Appellant’s] best interest and that [trial counsel] was ineffective
      for not admitting Walters’ prior inconsistent statement as
      substantive evidence once Walters testified differently but they
      didn’t . . . [sic] they just couldn’t make it right.

Appellant’s Brief at 9.

      The PCRA court found no merit to Appellant’s claim, given Appellant’s

testimony at trial:



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            [Appellant’s] claim that [trial] counsel was ineffective for
      not seeking the admission of Nathan Walters’ inconsistent
      statement as evidence will be dismissed because counsel had a
      reasonable basis for not doing so in that this witnesses’ out of
      [court] statement that [Appellant] “didn’t say much” while
      present in the attic with the co-defendant[s] contradicted
      [Appellant’s trial] testimony that he was not, in fact, present at
      all. Counsel clearly has a reasonable basis not to present
      testimony that would have contradicted [Appellant’s] own
      testimony[.]

Pa.R.Crim.P. 907 Notice, 12/8/15, at 1.    Our review of the record supports

that PCRA court’s conclusion.

      Moreover, our review of the record refutes Appellant’s assertion that

Walters was the only Commonwealth witness to implicate Appellant as co-

conspirator. See, e.g., N.T., 5/1/07, at 672 (Commonwealth witness Shawn

Davis testifying that after the shooting, co-defendant Kelley informed him

that Kelley and Appellant waited for victim to leave the high school).

      Finally, Appellant cannot establish that he was prejudiced by trial

counsel’s inaction, given the other circumstantial evidence supporting the

conspiracy.   As we stated in rejecting Appellant’s sufficiency challenge on

direct appeal:

            In the instant case, Appellant argues that the only
         evidence linking him to the killing was the McDonald’s
         receipt and the fact that he nodded while his co-
         defendants stated that they had shot the victim.

            We disagree.      As noted above, the Commonwealth
         presented extensive circumstantial evidence from which
         the jury could conclude that Appellant entered into a
         conspiracy with his co-defendants to kill the victim in
         retaliation for shooting Appellant. Again, Kell[e]y and two
         other men first tried to retaliate against the victim shortly
         after Appellant was shot. Later, Appellant and Kell[e]y

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         shot at the victim’s house. A jury could conclude beyond a
         reasonable doubt that on the final attempt, Appellant was
         in the shooters’ vehicle shortly before the murder, had
         known about the killing, was at the scene of the crime, and
         had agreed to the murder. This web of evidence was
         sufficient to prove the elements of conspiracy.

Matthews, supra, unpublished memorandum at 7-8. Thus, for all of these

reasons, Appellant’s first claim of ineffectiveness fails.

      In his remaining claim, Appellant asserts that the trial counsel was

ineffective for failing to timely file a motion for severance. Initially, we find

this specific claim waived because Appellant raised it for the first time in his

Pa.R.A.P. 1925(b) statement. See generally Commonwealth v. Tejada,

107 A.3d 788 (Pa. Super. 2015). The claim originally raised by Appellant

and addressed by both PCRA counsel in his “no-merit” letter, and the PCRA

court in its Rule 907 notice, was whether appellate counsel was ineffective

for not raising the trial court’s denial of the severance claim as an issue in

Appellant’s direct appeal.     See No-Merit Letter, 9/9/14, at 5; Rule 907

Notice, 12/8/15, at 2.

      Nevertheless, both claims lack merit. The decision of whether to sever

trials of co-defendants is within the sound discretion of the trial court.

Commonwealth v. Lopez, 739 A.2d 485, 501 (Pa. 1999).                “Defendants

charged in separate indictments or informations may be tried together if

they are alleged to have participated in the same act or transaction or in the

same series of acts or transactions constituting an offense or offenses.”

Pa.R.Crim.P. 582(A)(2). “The court may order separate trials of offenses of


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defendants, or provide other appropriate relief, if it appears that any party

may be prejudiced by offenses or defendants being tried together.”

Pa.R.Crim.P. 583. Joint trials are encouraged when judicial economy will be

promoted    by   avoiding     expensive    and   time-consuming      duplication   of

evidence. Commonwealth v. Jones, 668 A.2d 491 (Pa. 1995). Joint trials

are preferred when conspiracy is charged.          Commonwealth v. Cull, 688

A.2d 1191, 1197 (Pa. Super. 1997).

      Our review of the record refutes Appellant’s assertion that trial

counsel’s motion for severance was denied because it was filed untimely.

Rather, the trial court denied the motion on its merits. See N.T., 4/24/07,

at 58-59 (trial counsel renews motion for separate trials, and the trial court

explains why such a request would be denied).              As noted above, all three

defendants were charged with criminal homicide and conspiracy based on

the victim’s death.      Thus, joint trial is preferred.    Cull, 688 A.2d at 1197.

Moreover, there is every indication that, given the large trial transcript, joint

trial would avoid the “time-consuming duplication of evidence.”              Jones,

supra.   Thus, Appellant’s second and final claim of trial counsel’s alleged

ineffectiveness fails.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/25/2017




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