J-S53009-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID MATHIAS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 timebar. See 42 Pa.C.S.A. § 9545(b)(1)(ii). The alleged newlydiscovered 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