Com. v. Mathias, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID MATHIAS :
:
Appellant : No. 1934 EDA 2019
Appeal from the PCRA Order Entered June 11, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0808071-2005
BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: FILED: APRIL 12, 2021
Appellant, David Mathias, appeals from the order dismissing, without a
hearing, his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
We set forth the facts of the crime and procedural history in a prior
decision. We reproduce it here because we had noted that the facts delineated
by the trial court originally, and adopted by this Court on direct appeal, were
at odds with both the Commonwealth and Appellant’s recitations of the facts
therein. We clarified as follows:
At approximately 12:45 a.m. on May 23, 2005, Appellant
and his codefendant, Richard Jarmon, went to a boarding house
where Eric Richardson resided. Mr. Richardson’s friend, Joseph
Drew El, was staying with Mr. Richardson and was occupying a
room that Mr. Richardson’s father rented. Appellant knocked on
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* Retired Senior Judge assigned to the Superior Court.
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the door of Mr. Richardson’s room. Mr. Richardson and his
girlfriend were in bed at the time and he asked who was at the
door. Appellant responded, “Buck,” which is his nickname. Both
Appellant and Mr. Richardson were familiar with one another.2 Mr.
Richardson then opened the door and stepped outside, closing the
door behind him. Appellant asked for change for a five-dollar bill.
2 Appellant and several defense witnesses testified
that Mr. Richardson sold marijuana[,] and Appellant
maintained that was how he knew Mr. Richardson and
was the reason he traveled to his building that night.
Mr. Richardson testified that he is a licensed vendor
and sold items to Appellant on a number of occasions.
At the time, Mr. Jarmon was seated in the neighboring room
where Joseph Drew El reclined on the floor watching television.
Mr. Richardson returned to his room and retrieved five one-dollar
bills before again exiting his room and closing the door. After Mr.
Richardson handed the money to Appellant, Appellant stated to
Mr. Jarmon, “Are you ready?” N.T., 7/21/06, at 52. Appellant
and Mr. Jarmon then proceeded to pull firearms from their
waistbands. Mr. Jarmon shot Mr. El three times, causing his
death, before turning his firearm toward Mr. Richardson. When
Appellant removed his firearm, he aimed it at Mr. Richardson’s
stomach. Mr. Richardson grabbed Appellant’s arm[,] and
Appellant fired multiple shots.3 Mr. Richardson was shot five
times, but managed to flee the building and flag down police.
Police discerned that both a nine-millimeter and .45 caliber
handgun were used during the attack.
3 The trial court stated that Appellant shot at Joseph
Drew El before firing at Mr. Richardson. However, Mr.
Richardson did not testify to this effect, see N.T.,
7/21/06, at 53-63, and the Commonwealth
specifically argued during its opening and closing
statements that Appellant shot Mr. Richardson[,] and
Mr. Jarmon killed Mr. El. N.T., 7/20/06, at 146-148;
N.T., 7/28/06, at 65. One Commonwealth witness,
Appellant’s former cell-mate, did testify that Appellant
told him that Mr. Richardson was mistaken and that
Appellant had shot and killed Mr. El[,] and Mr. Jarmon
shot at Mr. Richardson. See N.T.,7/24/06, at 110-
112, 137-138, 158-159. The Commonwealth
contended that Appellant was merely puffing himself
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up while he was incarcerated and it did not argue that
Appellant was Mr. El’s shooter. N.T., 7/28/06, at 65.
In this appeal, the Commonwealth concedes that
Richard Jarmon shot and killed Mr. El.
Commonwealth’s brief at 2.
Police found Appellant in the apartment of a female
companion several weeks later, hiding in bed underneath the
sheets. Located next to Appellant on the bed was a magazine for
a nine-millimeter handgun. Appellant was charged with murder,
conspiracy to commit murder, attempted murder, aggravated
assault, possession of an instrument of crime (“PIC”), and various
firearms violations.4 At the close of the evidence, the court
instructed the jury that it could find Appellant guilty of first degree
murder, second degree murder, and third degree murder as either
a principal or an accomplice. It did not instruct the jury, relative
to murder, that it could find him guilty based on conspiracy
liability. It also instructed the jury on conspiracy to commit first
degree murder, aggravated assault, PIC, and the firearms
violations. The jury found Appellant guilty of first degree murder,
conspiracy to commit first degree murder, aggravated assault, PIC
and the firearms charges. The court thereafter sentenced
Appellant to life imprisonment for the first degree murder
conviction and concurrent terms of incarceration on the remaining
charges.
4 The Commonwealth did not proceed with the
attempted murder charge at trial.
Appellant filed a direct appeal where he challenged the trial
court’s instruction on conspiracy to commit first degree murder
and the sufficiency of the evidence as to each charge. As to the
first issue, Appellant’s counsel failed to cite any case law in his
brief, and this Court found the issue waived. Importantly,
however, this Court addressed the merits of that issue in the
alternative and concluded that it lacked merit. We noted that the
trial court instructed the jury that to convict Appellant for
conspiracy to commit first degree murder, it was required to find
that Appellant had the specific intent to kill. Appellant also
asserted challenges to jury instructions related to aggravated
assault and VUFA violations, which this Court found waived. With
respect to Appellant’s sufficiency claim, this Court held the issue
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waived for lack of adequate development and did not discuss the
merits of the challenge.[1]
Thereafter, Appellant filed a timely pro se PCRA petition[,]
and the court appointed counsel. Appellant’s counsel filed a
Turner/Finley[2] no-merit letter addressing the issues Appellant
set forth in his pro se petition.
* * *
The court thereafter dismissed Appellant’s PCRA petition and
granted counsel’s petition to withdraw.
Commonwealth v. Mathias, 62 A.3d 464, 2297 EDA 2011 (Pa. Super. filed
October 25, 2012) (unpublished memorandum at 1–4, 7) (some footnotes
omitted). Appellant, pro se, filed a notice of appeal to this Court. We affirmed
the denial of PCRA relief. Id.Appellant filed his second PCRA petition, pro se, on March 11, 2013.3
Appointed counsel eventually sought to withdraw. The PCRA court issued
notice pursuant to Pa.R.Crim.P. 907 on December 8, 2015. Counsel was
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1 Commonwealth v. Mathias, 974 A.2d 1187, 3040 EDA 2006 (Pa. Super.
filed April 23, 2009) (unpublished memorandum), wherein we affirmed the
judgment of sentence. Appellant did not file a petition for allowance of appeal
to the Pennsylvania Supreme Court.
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3 Meanwhile, Appellant, pro se, sought federal habeas-corpus relief on April
8, 2013. After rulings by a federal magistrate, the federal district court, and
the Third Circuit Court of Appeals, and their concomitant appeals, federal
habeas corpus relief was denied. Mathias v. Superintendent Frackville
SCI, 876 F.3d 462 (3d Cir. filed November 20, 2017), cert denied, ___ U.S.
___, 138 S.Ct. 1707 (April 30, 2018).
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permitted to withdraw, and on February 17, 2016, the PCRA court dismissed
Appellant’s PCRA petition. Order, 2/17/16. Appellant did not appeal.
Appellant, pro se, filed the instant PCRA petition, his third, on November
14, 2017. The PCRA court appointed counsel, who filed an amended petition
on July 10, 2018. The PCRA court filed notice pursuant to Pa.R.Crim.P. 907
on May 9, 2019. PCRA counsel filed a response to the notice on May 10, 2019.
On June 11, 2019, the PCRA court dismissed the petition, determining that
Appellant’s petition was untimely and no exception to the PCRA time-bar
applied. Order, 6/11/19.
Appellant filed a counseled notice of appeal to this Court. The PCRA
court did not direct the filing of a Pa.R.A.P. 1925(b) statement. The PCRA
court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issue on appeal:
Did the lower court err and abuse its discretion by denying a
hearing and relief, where Appellant proffered material facts
demonstrating a Brady[4] violation that undermined the credibility
and testimony of a critical Commonwealth eyewitness, in violation
of Appellant’s right to due process under the Pennsylvania and
United States Constitutions.
Appellant’s Brief at 2.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
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4 Brady v. Maryland, 373 U.S. 83 (1963).
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2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
We initially must determine whether Appellant has filed a timely petition.
A PCRA petition, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final[.]” 42 Pa.C.S. §
9545(b)(1). A judgment of sentence becomes final “at the conclusion of direct
review, including discretionary review in the Supreme Court of the United
States and the Supreme Court of Pennsylvania, or at the expiration of time
for seeking the review.” Id. at § 9545(b)(3).
Beyond the one-year time-bar, a petitioner must plead and prove at
least one of the time-bar exceptions. These exceptions include:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the
exercise of due diligence; or
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(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)–(iii). A petitioner must raise the claim within sixty
days from the date that the claim could have been raised. Id. at §
9545(b)(2).5
In the case sub judice, Appellant was sentenced on September 18, 2006.
As noted, this Court affirmed the judgment of sentence on April 23, 2009;
Appellant did not file a petition for allowance of appeal with the Pennsylvania
Supreme Court. Thus, his judgment of sentence became final on Tuesday,
May 26, 2009.6 42 Pa.C.S. § 9545(b)(3). Pursuant to 42 Pa.C.S. § 9545(b)(1)
and (3), Appellant had one year within which to file a PCRA petition, i.e., no
later than May 26, 2010. Appellant’s instant petition, filed on November 14,
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5 Section 9545(b)(2) was amended to reflect that a petitioner has one year
rather than the prior deadline of sixty days to raise his claim. This amendment
became effective on December 24, 2018, and applies to claims arising on
December 24, 2017, or after. Appellant’s pro se PCRA petition was filed on
November 14, 2017, before the amendment became effective. Additionally,
Appellant’s alleged claim arose on September 14, 2017, the date Craig Lindsey
filed a PCRA petition alleging that Detective Wilkins visited Lindsey in custody
on October 19, 2005, discussed infra. See PCRA Petition, 11/14/17, at 12.
Therefore, the amendment is inapplicable.
6 While the thirty-day period to file a petition for allowance of appeal to the
Pennsylvania Supreme Court expired on May 23, 2009, that day was a
Saturday, and the following Monday, May 25, 2009, was a holiday, Memorial
Day. Thus, the relevant date for the finality of the judgment of sentence is
May 26, 2009. 1 Pa.C.S. § 1908 (whenever the last day of any time period
referred to in a statute falls on a Saturday, Sunday, or legal holiday, we omit
that day from the computation).
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2017, is patently untimely. See 42 Pa.C.S. § 9545(b)(1); Commonwealth
v. Gamboa–Taylor, 753 A.2d 780, 783 (Pa. 2000) (holding a PCRA petition
filed more than one year after judgment of sentence becomes final is untimely,
and the PCRA court lacks jurisdiction to address the petition unless the
petitioner pleads and proves a statutory exception to the PCRA time-bar). We
thus turn to whether Appellant has pled and proven that one or more of the
exceptions to the PCRA’s timeliness requisites applies.
Appellant contends that he was unable to comply with the PCRA’s
timeliness requirement because the Commonwealth withheld information from
him in violation of Brady, 373 U.S. 83. In order to establish a Brady violation,
our Supreme Court has stated:
[A] defendant must show that: (1) evidence was suppressed by
the state, either willfully or inadvertently; (2) the evidence was
favorable to the defendant, either because it was exculpatory or
because it could have been used for impeachment; and (3) the
evidence was material, in that its omission resulted in prejudice
to the defendant. See Commonwealth v. Lambert, 584 Pa. 461,
471, 884 A.2d 848, 854 (2005); Commonwealth v. Collins, 585
Pa. 45, 68, 888 A.2d 564, 577–78 (2005). However, “the mere
possibility that an item of undisclosed information might have
helped the defense, or might have affected the outcome of the
trial, does not establish materiality in the constitutional sense.”
Commonwealth v. Chambers, 570 Pa. 3, 29, 807 A.2d 872, 887
(2002) (citation omitted and emphasis added). Rather, evidence
is material “only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.”
Id. at 29, 807 A.2d at 887–88.
Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (internal citation
omitted). Moreover, the burden rests with the defendant to “prove, by
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reference to the record, that evidence was withheld or suppressed by the
prosecution.” Commonwealth v. Paddy, 15 A.3d 431, 451 (Pa. 2011). The
withheld evidence must have been in the “exclusive control of the prosecution
at the time of trial.” Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa.
Super. 2012).
We rely on the PCRA court’s explanation in affirming this case, as
follows:
[Appellant] claims the instant petition is timely because it
satisfies the newly–discovered evidence exception to the time-
bar. See 42 Pa.C.S.A. § 9545(b)(1)(ii). The alleged newly-
discovered evidence is the details surrounding favorable
treatment given to the Commonwealth’s key witness, Craig
Lindsey. According to [Appellant], Lindsey testified that he was
working as an informant to federal authorities in order to receive
a lesser sentence in an unrelated federal case, but it was not
disclosed that he was also providing information to state police
and DEA agents. Lindsey testified that he had not yet begun to
provide information to federal authorities, but he had in fact been
doing so since his arrest on September 1, 2005; and although
Lindsey testified that no promises had been made to him in
exchange for his cooperation, he had received a promise of
protection.
“To obtain relief based upon newly[] discovered evidence
under the PCRA, Appellant must establish that: (1) the evidence
has been discovered after trial and it could not have been obtained
at or prior to trial through reasonable diligence; (2) the evidence
is not cumulative; (3) it is not being used solely to impeach
credibility; and (4) it would likely compel a different verdict.”
Commonwealth v. Washington, 592 Pa. 698 (2007) (internal
citations omitted). In the instant matter, [Appellant] is not
entitled to relief because the alleged newly-discovered evidence is
being used solely to impeach Lindsey’s testimony against
[Appellant]. Specifically, the details surrounding Lindsey’s
cooperation are being used to impeach Lindsey’s honesty and
motive. Thus, relief is not warranted pursuant to the newly-
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discovered evidence exception to the PCRA time-bar and this
[c]ourt’s dismissal of [Appellant’s] claim was proper.
Furthermore, no actual Brady violation occurred.
[Appellant] claims to have been denied his Constitutional right to
due process because the Commonwealth failed to disclose the
details surrounding Lindsey’s cooperation, but this contention
lacks merit. When reviewing an alleged Brady violation in the
PCRA context, a defendant must establish that the alleged Brady
violation “so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.”
Commonwealth v. Haskins, 60 A.3d 538 (Pa. Super. 2012). . . .
In the instant case, [Appellant] is not entitled to relief because no
Brady violation occurred. The Commonwealth fully disclosed the
fact that Lindsey was working as an informant and that he was
hoping to receive a lesser sentence in an unrelated federal matter,
if convicted, in exchange for his testimony against [Appellant]. At
[Appellant’s] trial, Lindsey testified as follows:
COMMONWEALTH: The open case you have in Federal
Court, did you sign an agreement with federal
authorities to cooperate with them?
LINDSEY: Yes.
COMMONWEALTH: To give them information about
any criminal activity that you know about?
LINDSEY: Yes.
* * *
COMMONWEALTH: How much time do you believe you
are facing?
LINDSEY: 15 years.
COMMONWEALTH: What is your purpose in
cooperating with federal authorities? What are you
trying to achieve?
LINDSEY: Lesser time.
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(N.O.T. 7/24/2006, Pages 106-107).7
Moreover, the alleged newly-discovered evidence—namely,
evidence that Lindsey also provided information to state police
and DEA agents, began working as federal informant in 2005, and
received a promise for protection[—]is not favorable to
[Appellant] because it is neither exculpatory to [Appellant’s] case
nor does it provide a basis for further impeachment of Lindsey, as
required by Paddy. Evidence that Lindsey had been providing
information to federal authorities since 2005 and also provided
information to state police and DEA agents likely makes him a
more credible source since he has assisted other agencies.
Furthermore, evidence that Lindsey may have received a “promise
of protection” does not specifically impact upon his honesty or
motives[,] as this does not impact Lindsey’s sentence and
Pennsylvania courts have deemed it “necessary to protect the flow
of information from informants as well as to insure the safety of
informants.” Commonwealth v. Bonasorte, 337 Pa. Super. 332,
352, 486 A.2d 1361, 1372 (1984). Thus, no Brady violation
occurred because the Commonwealth fully disclosed the fact that
Lindsey was working as an informant and was hoping to receive a
lesser sentence in exchange for his testimony against [Appellant].
Furthermore, the details surrounding Lindsey’s cooperation were
not exculpatory or favorable to [Appellant], as required by Paddy.
As such, this [c]ourt’s dismissal of [Appellant’s] claim for lack of
merit was proper.
PCRA Court Opinion, 12/19/19, at 5–7.
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7 We note that the record certified to us on appeal lacks any notes of
testimony. It is well settled that “this Court may consider only the facts that
have been duly certified in the record when deciding an appeal.”
Commonwealth v. Kennedy, 151 A.3d 1117, 1127 (Pa. Super. 2016)
(citation omitted). “Our law is unequivocal that the responsibility rests upon
the appellant to ensure that the record certified on appeal is complete in the
sense that it contains all of the materials necessary for the reviewing court to
perform its duty.” Commonwealth v. Holston, 211 A.3d 1264, 1276 (Pa.
Super. 2019) (en banc). While we could find the issue waived, id.; Kennedy,
151 A.3d at 1127, instead, we rely upon the explanation of the PCRA court,
which did review the notes of testimony. In light of the state of the record,
more than this we cannot do.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/21
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