Com. v. Cordero, M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW CORDERO :
:
Appellant : No. 244 EDA 2020
Appeal from the PCRA Order Entered December 12, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000654-2015
BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: Filed: December 24, 2020
Appellant Matthew Cordero appeals from the order dismissing his timely
first Post Conviction Relief Act1 (PCRA) petition. Appellant contends the PCRA
court erred by dismissing his petition without an evidentiary hearing because
a genuine issue of material fact existed as to whether her trial counsel was
ineffective by failing to request a cautionary jury instruction regarding color
crime scene photos showing the decedent’s body. We affirm.
In resolving Appellant’s direct appeal, this Court adopted the trial court’s
opinion and briefly summarized the facts of this case as follows:
On September 13, 2013, Appellant and his [paramour], Krista
McDevitt, conspired to lure the decedent, Joseph Britton
(McDevitt’s former [paramour]), to a location in the Frankford
neighborhood of Philadelphia, where Appellant and McDevitt
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1 42 Pa.C.S. §§ 9541-9546.
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planned to rob him. McDevitt successfully lured Britton to
Frankford, but when she met Appellant to tell him, Appellant
became jealous and enraged, approached Britton (who was
waiting for McDevitt in a borrowed car), and struck him three or
four times with an aluminum baseball bat, killing him. Appellant
searched the car and Britton’s pockets for drugs and money, but
retrieved only $1. Appellant discarded the car keys and then
boasted to others of the crime and warned them not to report him
to the police.
Commonwealth v. Cordero, 2017 WL 4509818, at *1 (Pa. Super., filed
Sept. 27, 2017) (unpublished mem.), appeal denied, 182 A.3d 989 (Pa. 2018).
Police arrested Appellant on October 14, 2014 and charged him with
murder, robbery, conspiracy, and possession of an instrument of crime (PIC)2.
Appellant’s jury trial began on September 26, 2016.
At trial, the Commonwealth’s case included the presentation of twenty-
six crime scene photos, in color, and which included images of the decedent’s
body as it was found. N.T. Trial, 9/27/16 at 302. Appellant’s trial counsel did
not object to the photos. Id. Acknowledging the spectators in the gallery,
the trial court warned, “I will just once again tell people that some of these
photographs will show the decedent as he was in the car, so if anyone wants
to step outside you may want to do that now. There are some close-up
photographs.” Id.Officer William Trenwith, who took the photos, testified as to the
contents of each image one by one. Id. at 303-14. As the officer discussed
the photographs of the decedent’s injuries, an unnamed spectator became
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2 18 Pa.C.S. §§ 2502, 3701(a)(1), 903, and 907(a), respectively.
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upset. The trial court addressed her, “Ma’am, you have to step out and [to
the Commonwealth] you don’t need to blow this one up.” Id. at 311. A few
moments later, the trial court again noted for the benefit of the gallery,
“People, again, the last few photographs are more gory. So if you don’t want
to look at them, please step out now.” Id. at 312. Outside of the presence
of the jury, the trial court stated:
All right. Before we adjourn for the day, when I was describing
the photographs, when I used the word gory, I just want the
record to be clear. To me, they’re not gory in the sense that I
thought they were unduly prejudicial or anything like that, but for
family members I used that term so that they understood that
there was going to be blood shown and I know it’s always hard for
family members to view these photographs.
Id. at 339.
In his closing argument, Appellant’s trial counsel acknowledged the
graphic nature of the photographs as follows:
And I saw some of you when those crime scene photos went up.
Some of you averted your eyes. Understandable. It’s not
pleasant to look at. . . . It’s hard.
But Her Honor is going to address that with you. She’s going [to]
tell you right up front . . . that you cannot base your verdict on
sympathy for or against anybody, and I think you know that that’s
just common sense.
N.T. Trial, 9/29/16 at 19. Appellant’s trial counsel continued to argue that,
although this was a terrible killing, the Commonwealth had not proved beyond
a reasonable doubt that Appellant killed the decedent. Id. at 16. Specifically,
Appellant’s trial counsel challenged the credibility of the Commonwealth’s
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witnesses who implicated Appellant as the person who killed the decedent.
Id. at 20-48.
Appellant’s counsel did not request a cautionary jury instruction
regarding the photographs of the decedent at the crime scene. However, the
trial court, in part, charged the jury as follows: “[y]our determination of the
facts should not be based on empathy for or prejudice against the defendant
or the crime. . . .” Id. at 100.
On September 30, 2016, the jury found Appellant guilty of first-degree
murder, conspiracy, robbery, and PIC. That same day, the trial court
sentenced Appellant to a mandatory term of life without parole for first-degree
murder, concurrent terms of five to ten years’ imprisonment for conspiracy
and robbery, and one to two years’ imprisonment for PIC. Appellant timely
appealed, and this Court affirmed his judgment of sentence on September 27,
2017. Our Supreme Court denied Appellant’s petition for allowance of appeal
on March 15, 2018.
Appellant timely filed the instant PCRA petition pro se on May 31, 2019.
The PCRA court appointed counsel and directed PCRA counsel to file an
amended petition. On October 21, 2019, PCRA counsel filed an amended
petition and motion for discovery seeking the color photographs used at trial.
Mot. for Discovery, 10/21/19. The PCRA court provided the requested
photographs to PCRA counsel on October 30, 2019.
On November 7, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice
stating that Appellant’s issues were without merit. Rule 907 Notice, 11/7/19.
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Appellant did not file a response. The PCRA court dismissed Appellant’s
petition on December 12, 2019. Appellant filed a timely notice of appeal on
January 8, 2020.
Appellant raises one issue:
Whether the PCRA [c]ourt erred in dismissing the Appellant’s
petition under the [PCRA] where trial counsel was ineffective for
failing to request a jury instruction under Section 3.18 (Crim.)
Inflammatory Photographs when the color photographs of the
decedent’s corpse were sufficiently disturbing to prejudice the jury
and to cloud an objective assessment of guilt or innocence?
Appellant’s Brief at 6.
Appellant argues that trial counsel was ineffective because he failed to
request “a cautionary or final instruction . . . admonishing the jury not to let
the disturbing photographs of the decedent’s head injuries stir their emotions
to the prejudice of” Appellant. Id. at 14. Appellant contends that his
ineffective assistance of counsel claim has arguable merit because the images
of the decedent’s injuries were so gruesome that the jury could not objectively
determine Appellant’s guilt or innocence. Id. at 20. Appellant emphasizes
that the trial court referred to the images as “gory” and directed the
Commonwealth not to enlarge the images to avoid upsetting the gallery. Id.
at 19.
Further, Appellant argues that trial counsel had no reasonable basis for
failing to request the instruction because he highlighted the emotional impact
of the photographs in his closing argument. Id. at 20. According to Appellant,
because counsel witnessed the courtroom outburst and heard the trial court
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describe the photos as gory, counsel should have known “that there was at
least the possibility that the photos could inflame the passions of at least one
juror and prevent a juror from objectively deciding the issue of guilt.” Id. at
21. Appellant asserts that “[n]o competent counsel would have chosen not to
request the [inflammatory photograph] instruction under 3.18 under the
circumstances as counsel experienced them in the courtroom.” Id.
Finally, Appellant argues that he was prejudiced by trial counsel’s
ineffectiveness because “there is a reasonable probability that one of more
jurors’ emotions were affected” by having to view the photos. Id. As a result
of counsel’s failure, Appellant contends that the jury “was not properly
cautioned and instructed after seeing the photos.” Id. Accordingly, Appellant
requests a new trial, or in the alternative, an evidentiary hearing for trial
counsel to testify regarding his failure to request a cautionary instruction. Id.
at 24.
The Commonwealth responds that the trial court properly denied
Appellant relief.3 Commonwealth’s Brief at 9. The Commonwealth asserts
that “all parties agreed that the photographs . . . were not upsetting enough
to prejudice a jury.” Id. at 17. The Commonwealth, in relevant part,
maintains that Appellant cannot establish the prejudice necessary to support
his claim because the trial court indicated that it did not find the photos unduly
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3 The Commonwealth also asserts that Appellant is precluded from obtaining
relief because he did not include any certification to support his claim.
Commonwealth’s Brief at 9-10.
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prejudicial and gave the standard jury charge. Id. at 18. According to the
Commonwealth, the trial court’s jury charge communicated the sentiment of
Section 3.18 of the Standard Jury Instructions. Id. at 17. The Commonwealth
concludes that Appellant cannot show that counsel’s claimed ineffectiveness
resulted in prejudice to Appellant due to the overwhelming evidence of guilt
presented at trial. Id. at 20-21.
In its opinion dismissing Appellant’s petition, the PCRA court concluded
that the photographs were not sufficiently disturbing to prejudice the jury
against Appellant. PCRA Ct. Op. 12/12/19, at 6. The PCRA court determined
that the nature and extent of the decedent’s injuries “would not have been
readily deducible from black and white photographs.” Id. at 7. The PCRA
court acknowledged that referring to the photographs as ‘gory’ in comments
directed toward to gallery “may have been inartful” but notes that the
description should not be construed to have prejudiced the jury. Id. at 8.
Accordingly, the PCRA court concluded that Appellant “presents no evidence
that the jurors . . . had their passions inflamed by the admission of the crime
scene photos.” Id. Significantly, the PCRA court pointed out that trial counsel,
in his closing argument, acknowledged that the jury would be instructed not
to base their verdict on sympathy or prejudice for or against any person, and
that the trial court issued an instruction not to consider their personal feelings
about the nature of the crime. Id. The PCRA court concluded that Appellant,
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therefore, failed to demonstrate trial counsel’s lack of a reasonable strategy
or prejudice.
We set forth the applicable standard of review in Commonwealth v.
Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019) as follows:
Initially, we note that our standard of review from the denial of a
PCRA petition 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. The PCRA court’s credibility
determinations, when supported by the record, are binding on this
Court; however, we apply a de novo standard of review to the
PCRA court’s legal conclusions.
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. The burden is on the defendant
to prove all three of the following prongs: (1) the underlying claim
is of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his client’s interests. We do not employ a hindsight
analysis in comparing trial counsel’s actions with other efforts he
may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
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been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Sandusky, 203 A.3d at 1043-44 (citations omitted and formatting altered).
“Failure to prove any prong of this test will defeat an ineffectiveness claim.”
Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (citation omitted).
If a claim fails under any element of the test, the court may proceed to that
element first. Commonwealth v. Lesko, 15 A.3d 345, 374 (Pa. 2011)
(citation omitted).
Initially, we note that trial counsel is presumed effective.
Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012). Further, the
“decision whether to seek a jury instruction implicates a matter of trial
strategy.” Lesko, 15 A.3d at 401 (citation omitted). Our Supreme Court has
explained
[a] finding that a chosen strategy lacked a reasonable basis is not
warranted unless it can be concluded that an alternative not
chosen offered a potential for success substantially greater than
the course actually pursued. A claim of ineffectiveness generally
cannot succeed through comparing, in hindsight, the trial strategy
employed with alternatives not pursued.
Commonwealth v. Sneed, 45 A.3d 1096, 1107 (Pa. 2012) (citations and
internal quotation marks omitted).
With respect to a PCRA hearing,
[i]t is well settled that there is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine
from the record that no genuine issues of material fact exist, then
a hearing is not necessary. To obtain reversal of a PCRA court's
decision to dismiss a petition without a hearing, an appellant must
show that he raised a genuine issue of fact which, if resolved in
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his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations
and some formatting omitted), appeal denied, 218 A.3d 380 (Pa. 2019).
Although the parties do not contest the admissibility of the photographs,
we initially acknowledge that our Supreme Court has held that before
admitting photographs,
a trial court must determine whether the photograph is
inflammatory. If not, it may be admitted if it has relevance and
can assist the jury’s understanding of the facts. If the photograph
is inflammatory, the trial court must decide whether or not the
photographs are of such essential evidentiary value that their
need clearly outweighs the likelihood of inflaming the minds and
passions of the jurors.
Commonwealth v. Pruitt, 951 A.2d 307, 320 (Pa. 2008) (citation omitted
and formatting altered). The Pruitt Court continued: “[a]lthough the
possibility of inflaming the passions of the jury is not to be lightly dismissed,
a trial judge can minimize this danger with an appropriate instruction, warning
the jury member not to be swayed emotionally by the disturbing images, but
to view them only for their evidentiary value.” Id.The suggested standard criminal jury instruction on inflammatory
photographs states:
3.18 – INFLAMMATORY PHOTOGRAPHS
1. This photograph was admitted in evidence for the purpose of
[showing the nature of the wounds received by the deceased]
[showing conditions at the scene of the alleged crime] [helping
you understand the testimony of the witnesses who referred to
it] [give other specific purpose].
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2. It is not a pleasant photograph to look at. You should not let it
stir up your emotions to the prejudice of the defendant. Your
verdict must be based on a rational and fair consideration of all
the evidence and not on passion or prejudice against the
defendant, the Commonwealth, or anyone else connected with
this case.
Pa. SSJI (Crim) 3.18.
Appellant argued that he was not the killer. N.T. Trial, 9/29/16 at 20-
46. Specifically, in support of its theory that Appellant was the killer, the
Commonwealth offered the testimony of Ian Pawlowic, the friend who loaned
Appellant an aluminum bat to carry out a robbery. N.T. Trial, 9/27/16 at 118-
19. Pawlowic testified that Appellant took the bat and returned about thirty
minutes later. Id. at 121. Appellant confessed to Pawlowic that he killed
someone and invited Pawlowic to go with him back to the crime scene. Id.
Pawlowic returned to the scene with Appellant to search the decedent’s car for
money or drugs and ran back to Pawlowic’s home after they only found a
dollar. Id. at 124. At some point, Appellant returned the bat to Pawlowic and
instructed him to hide it. Id. at 126. Pawlowic further testified that he could
see the decedent’s car from his front porch and Appellant returned while the
police were on scene to watch “the aftermath of the chaos.” Id. at 129.
Pawlowic stated that months after the murder, Appellant threatened to kill
him if he told anyone what happened. Id. at 131.
McDevitt, Appellant’s paramour at the time of the murder, testified that
she helped Appellant set up the decedent to be robbed. N.T. Trial, 9/28/16
at 23. She expected Appellant to rob the decedent for money and heroin. Id.
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McDevitt explained that she first met with the decedent and asked him to wait
while she got her things. Id. at 27. She then went to find Appellant in a
nearby park. Id. at 29. At that time, she observed that Appellant had an
aluminum bat with him and he became enraged when he learned that she had
used drugs with the decedent. Id. at 30-31. According to McDevitt, she went
to a friend’s home where she and Appellant had been residing, and Appellant
arrived about thirty minutes later and confessed to killing the decedent. Id.
at 33. That friend and her minor son, D.C., then went to see the scene. Id.
at 33-34.
D.C. also testified at trial and identified Appellant, who he knew as
“Shark,” as the person who confessed to killing the decedent. N.T. Trial,
9/27/16 at 230. Specifically, D.C. indicated that he heard Appellant discussing
the robbery plan earlier in the evening. Id. at 232. D.C. explained that
Appellant was sweaty when he returned and had some “blood type stuff” on
his clothes. Id. at 234. D.C. testified that he and his mother then walked
around the corner to the crime scene and saw the decedent’s body in the car.
Id. at 236. D.C. explained that Appellant warned them not to tell the police
what happened. Id. at 240.
Appellant’s trial counsel thoroughly cross-examined Pawlowic and
McDevitt regarding their involvement in the homicide, as well as the charges
they were facing and cooperation agreements, and impeached D.C. using
D.C.’s prior statement to police. See N.T. Trial, 9/27/16 at 187 and 266; see
also N.T. Trial, 9/28/16 at 153. In his closing argument, Appellant’s trial
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counsel focused on challenging the credibility of Pawlowic, McDevitt, and D.C.
See N.T. Trial, 9/29/16 at 20-46. Appellant’s trial counsel contended that the
Commonwealth’s witness, D.C., was not credible because he initially lied to
police to protect Appellant. Id. at 26. Further, trial counsel argued that
McDevitt and Ian Pawlowic, both co-conspirators, were falsely accusing
Appellant in hopes of avoiding life sentences for their participation in the
crime. Id. at 39.
As noted above, Appellant’s trial counsel only mentioned the photos in
passing in his closing argument, noting that while the photos were “not
pleasant” to look at, the jury should not base its decision on sympathy. Id.
at 19. Appellant’s trial counsel observed that the trial court would instruct the
jury, and the trial court ultimately issued an instruction stating that their
decision should not be based on empathy for or prejudice against the
defendant or the crime. Id.
Following our review, we agree with the PCRA court that Appellant has
not established that he was prejudiced by trial counsel’s failure to request the
suggested jury instruction regarding inflammatory photographs. See Lesko,
15 A.3d at 374. Specifically, as noted by the PCRA court, we agree that
Appellant has failed to present evidence that the jurors’ passions were
inflamed by the admission of the crime scene photos such that they were not
able to examine the trial evidence as neutral arbiters of the facts. PCRA Ct.
Op. at 8. The PCRA court acknowledged the exceeding difficulty for family
members to see photographs of their loved one’s body evidencing violent
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injuries in the context of a homicide trial, and that the court’s description of
the photographs as “gory” may have been inartful. Id. Moreover, the PCRA
court maintains that its suggestion that some spectators may desire to leave
the courtroom reflected the court’s consideration for their well-being while
effecting orderly and efficient management of the jury trial. Id.
Moreover, Appellant has not established that it was reasonably probable
that Appellant would have received a different result had counsel requested
the instruction regarding inflammatory photographs. See Sandusky, 203
A.3d at 1044. Accordingly, we conclude that Appellant has failed to establish
that the absence of SSJI 3.18 impaired the ability of the jury to fairly
determine the issue of Appellant’s guilt as presented at trial. See Fears, 86
A.3d at 804. Accordingly, there is no genuine issue of material fact to be
considered, and the PCRA court did not abuse its discretion by not convening
an evidentiary hearing. See Maddrey, 205 A.3d at 328. For the reasons
herein, we affirm the PCRA court’s order dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/20
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