J-S89027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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),1that 

Janelle Gordon recently revealed Appellant was not involved in the 2007 

killing of David Rivera is reminiscent of Appellant’s claim raised in his postsentence 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 afterdiscovered 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.