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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, MOULTON, and FITZGERALD,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY SHOGAN, J.:FILED JULY 11, 2017

       I respectfully note my disagreement with an aspect of the Majority

Memorandum in this case.          Following my review of the record, I conclude

that the first issue is waived.         I agree with the Majority’s disposition of

Appellant’s second issue.

       The Majority mistakenly plunges into consideration of the merits of

Appellant’s issues without any evaluation concerning whether Appellant’s

PCRA petition established Appellant’s eligibility for relief pursuant to 42

Pa.C.S. § 9543, or whether his claims were previously litigated or waived, 42

Pa.C.S. § 9544.       Our Supreme Court reiterated guiding legal principles in

such a case, as follows:
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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             To be entitled to relief under the PCRA, a petitioner must
       establish, by a preponderance of the evidence, that his
       conviction or sentence resulted from one or more of the errors
       enumerated in 42 Pa.C.S. § 9543(a)(2), and that his claims have
       not been previously litigated or waived. 42 Pa.C.S. § 9544. An
       issue is previously litigated if “the highest appellate court in
       which [the appellant] could have had review as a matter of right
       has ruled on the merits of the issue.” Id. § 9544(a)(2). An
       issue is waived if the appellant “could have raised it but failed to
       do so before trial, at trial, . . . on appeal or in a prior state
       postconviction proceeding.” Id. § 9544(b).

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016).

       Appellant’s PCRA allegation that the Commonwealth’s failure to inform

the defense, in violation of Brady v. Maryland, 373 U.S. 83 (1963),1 that

Janelle Gordon recently revealed Appellant was not involved in the 2007

killing of David Rivera is reminiscent of Appellant’s claim raised in his post-

sentence motions and addressed on direct appeal that there existed

exculpatory after-discovered evidence from Clyde Lont that Appellant was

not involved in the murder of David Rivera. Commonwealth v. Hendricks,

64 A.3d 271 (Pa. Super. 2013) (unpublished memorandum at 2 n.3). I thus

conclude this claim is waived.

       Under the PCRA, an issue is waived “if the petitioner could have raised

it but failed to do so before trial, at trial, during unitary review, on appeal or

____________________________________________


1
    Under Brady and subsequent decisional law, “a prosecutor has an
obligation to disclose all exculpatory information material to the guilt or
punishment of an accused, including evidence of an impeachment nature.
See, e.g., Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277, 310
(2011).” Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013).



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in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b). Here, I

observe that Brady is not violated when the appellant knew or, with

reasonable diligence, could have uncovered the evidence in question, or

when the evidence was available to the defense from other sources. Roney,

79 A.3d at 608 (emphasis added).

      In his post-sentence motions, Appellant sought a new trial based upon

after-discovered evidence that Clyde Lont, Appellant’s co-defendant, stated

that Appellant was not involved in the shooting of David Rivera. This claim

was addressed and rejected by the trial court and affirmed by this Court in

Appellant’s   direct   appeal.   Hendricks,   64   A.3d    271   (unpublished

memorandum). Thus, counsel was placed on notice that Appellant was not

involved in the crime. The witness who most recently allegedly told counsel

that Appellant was not involved in Rivera’s shooting, Janelle Gordon, was “an

important Commonwealth witness at trial,” as described by Appellant himself

in his PCRA petition.    PCRA Petition, 6/19/14, at ¶12.    Moreover, at the

hearing on post-sentence motions on August 16, 2011, Mr. Lont testified

that he had been in a vehicle with Ms. Gordon earlier the day of the

shooting, that they had driven by the victim’s house, and that Mr. Lont and

Ms. Gordon lived together one and one-half blocks from the victim.      N.T.,

8/16/11, at 12. At the PCRA hearing, Ms. Gordon testified that in 2008, she

provided extensive testimony to the defense concerning Mr. Lont and

Appellant. N.T., 10/29/14, at 30–31.


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      Appellant does not offer any explanation why defense counsel could

not have uncovered the alleged Brady violation with reasonable diligence.

See Roney, 79 A.3d at 609 (issue waived where the appellant did not

explain why prior counsel could not have uncovered the alleged Brady

violations with reasonable diligence). As Appellant noted, Ms. Gordon was a

significant witness at trial. She offered extensive evidence while in the office

of trial counsel.   She was the girlfriend of Mr. Lont.    The issue of after-

discovered evidence was presented in post-sentence motions and addressed

on direct appeal. I believe that with reasonable diligence, Appellant could

have uncovered the evidence in question or it was available to the defense

from sources other than the Commonwealth. Thus, I conclude the issue is

waived.

      As I concur with the disposition of Appellant’s second issue, I

respectfully concur and dissent.




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