Com. v. Hendrickes, D. ( 2022 )

J-S10024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOLLY S. HENDRICKES :
:
Appellant : No. 1431 MDA 2021
Appeal from the Judgment of Sentence Entered July 15, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0006007-2019
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: JULY 15, 2022
Dolly S. Hendrickes appeals from the judgment of sentence of life
without the possibility of parole imposed on her conviction for first-degree
murder. Counsel has filed a Motion to Withdraw and an Anders1 brief. We
grant counsel leave to withdraw and affirm the judgment of sentence.
We need not recite the underlying facts at length. In sum, a jury
convicted Hendrickes after hearing evidence, including testimony from three
eye-witnesses, which established that she had killed her boyfriend by running
him over with her car. See Trial Court Opinion, filed December 22, 2021, at
2-6. The court sentenced her to life without the possibility of parole and denied
her post-sentence motion.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
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Hendrickes filed a notice of appeal. The court ordered her to file a
concise statement of errors. See Pa.R.A.P. 1925(b). In her statement,
Hendrickes raised (1) a challenge to the sufficiency of the evidence to support
first degree murder, alleging the evidence supported a heat of passion
defense, and (2) the constitutionality of her sentence, alleging that a life
sentence without the possibility of parole violates the Pennsylvania
Constitution’s prohibition against cruel punishments by presuming an offender
is incapable of rehabilitation.
As stated above, defense counsel has filed a Motion to Withdraw and an
Anders brief. We must examine the request to withdraw before we assess the
Anders brief. Commonwealth v. Redmond, 273 A.3d 1247, 1252
(Pa.Super., Apr. 21, 2022). The application to withdraw must state that, “after
making a conscientious examination of the record, counsel has determined
that the appeal would be frivolous.” Id. (quoting Commonwealth v.
Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en banc)). Counsel must
also advise the defendant that she “has the right to retain private counsel or
raise additional arguments that [she] deems worthy of the court’s attention.”
Id. (quoting Cartrette, 83 A.3d at 1032).
Finally, counsel must provide the defendant and this Court with an
Anders brief, which must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
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Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Id. (quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)).
Counsel’s Motion states that he has examined the record and concluded
that the appeal is frivolous. In the Anders brief, counsel explains his
conclusions that the appeal is frivolous and that a sentence of life without the
possibility of parole does not violate the Pennsylvania Constitutions’
prohibition on cruel punishment. He includes ample citation to relevant
authority and the facts of record. In his letter to Hendrickes, counsel informed
her of her right to obtain new counsel or raise any issues before this Court in
response to his assertion of frivolousness. Counsel has met all procedural and
briefing requirements. See id. We now turn to our own consideration of the
case.
Regarding the sufficiency of the evidence, counsel in the Anders brief
explains that here, the jury was presented with two versions of events. In the
Commonwealth’s case, an eyewitness testified that the victim got out of the
car and Hendrickes turned vehicle towards him and ran him over. Police
officers at the scene testified that Hendrickes was cool, calm, and collected.
In contrast, according to Hendrickes’ testimony, there was a physical
altercation in the car during which the victim threatened to cut her with a box
cutter, and when he got out of the car, she ran him over without thinking.
Counsel explains that the jury was permitted to believe the Commonwealth’s
witness and not Hendrickes. He further points out that a heat-of-passion
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defense, seeking a voluntary manslaughter verdict, was unavailable because
the altercation had ended, the victim had gotten out of the car and was
walking away when struck, and Hendrickes had time to cool off. See
Commonwealth v. Sanchez, 82 A.3d 943, 979-80 (Pa. 2013). We agree
that there is no basis in law or fact on which to challenge the verdict here.
Hendrickes’ sentencing issue is also frivolous. The legislature has
mandated that a court shall sentence an adult convicted of first-degree murder
to death or life imprisonment without parole. See 18 Pa.C.S.A. § 1102(a)(1).
A mandatory sentence of life without parole, when imposed on an adult
defendant, does not violate the Eighth Amendment on the basis that it
precludes consideration of mitigating circumstances. See Commonwealth v.
Yount, 615 A.2d 1316, 1321 (Pa.Super. 1992); see also Commonwealth
v. Waters, 483 A.2d 855, 861 (Pa.Super. 1984) (“A mandatory life sentence,
as established by the legislature, is clearly not cruel and unusual punishment
for the crime of first-degree murder”). The Pennsylvania Constitution is
coextensive with the federal Constitution on the point of cruel and unusual
punishment. See Commonwealth v. Yasipour, 957 A.2d 734, 743
(Pa.Super. 2008). Therefore, the mandatory sentence also does not violate
the Pennsylvania Constitution.
Hendrickes has not responded to counsel’s Anders brief and withdrawal
motion. Our independent review discloses no non-frivolous issues that would
require an appeal. We therefore grant counsel’s Motion to Withdraw and affirm
the judgment of sentence.
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Judgment of sentence affirmed. Motion to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2022
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