Commonwealth v. Mathias

COMMONWEALTH OF PENNSYLVANIA v. DAVID MATHIAS Appellant

J-S53009-20

No. 1934 EDA 2019

SUPERIOR COURT OF PENNSYLVANIA

APRIL 12, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.:

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 onthe 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 himselfup 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 issuewaived 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/Finley² 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 waspermitted 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 Brady⁴ 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.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(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...