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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.: FILED JULY 11, 2017

Matthew Hendricks appeals from the December 23, 2015 order 

entered in the Lehigh County Court of Common Pleas dismissing his petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 

9541-9546. We affirm.

The factual history of this matter was comprehensively recounted in 

the trial court’s opinion denying Hendricks’ post-verdict motions, which we 

adopt and incorporate herein. See Trial Ct. Op., 10/6/11, at 2-12. This 

appeal arises from the shooting death of David Rivera in April 2007. 

Hendricks and an alleged co-conspirator, Clyde Lont, were charged in 

connection with Rivera’s death. On May 3, 2011, following Hendricks’ jury-

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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trial conviction1for third-degree murder,2the trial court sentenced him to 20 

to 40 years’ incarceration. Hendricks filed timely post-sentence motions, 

arguing that he was entitled to a new trial because of after-discovered 

evidence,3trial court error, and juror misconduct. The trial court denied the 

motions on October 6, 2011. On January 7, 2013, this Court affirmed his 

judgment of sentence. Hendricks filed a petition for allowance of appeal, 

which the Pennsylvania Supreme Court denied on July 3, 2013. 

On June 19, 2014, Hendricks filed a counseled PCRA petition, alleging 

a Brady4violation. On October 29, 2014 and December 18, 2014, the PCRA 

court held a hearing on Hendricks’ petition. On January 21, 2015, Hendricks 

filed an amended PCRA petition, alleging that trial counsel was ineffective for 

not raising the issue of inconsistent verdicts in a post-sentence motion or on 

direct appeal.5 Also on January 21, 2015, Hendricks’ counsel filed a motion 

____________________________________________

1 Hendricks was acquitted of criminal conspiracy to commit homicide, 

18 Pa.C.S. § 903(a)(1).

2 18 Pa.C.S. § 2502(c).

3

In his motions, Hendricks said that his counsel had received, after 

Hendricks’ trial, a notarized statement from Clyde Lont stating that Lont had 

acted “without the assistance, planning or knowledge of” Hendricks. PostTrial Mot., 5/10/11, at 2.

4 Brady v. Maryland, 373 U.S. 83 (1963). 

5

In Hendricks’ amended petition, PCRA counsel, who at the time had 

represented Hendricks at all stages of this matter, including trial, raised the 

issue of his own ineffectiveness and requested the appointment of new 

counsel. 
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to withdraw. That same day, the PCRA court granted the motion and 

appointed new PCRA counsel. 

On June 24, 2015, the PCRA court held a hearing on Hendricks’ 

additional PCRA claim. On December 23, 2015, the PCRA court dismissed 

Hendricks’ petition. On January 12, 2016, Hendricks filed a timely notice of 

appeal.

Hendricks raises the following issues on appeal:

1. Whether the PCRA court erred when it found there was 

no violation of [Brady v. Maryland]?

2. Whether the PCRA court erred when it denied relief on 

the basis of the inconsistent verdicts?

Hendricks’ Br. at 6.

Our standard of review of the denial of PCRA relief “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.” Commonwealth v. 

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). We will not disturb the 

PCRA court’s factual findings “unless there is no support for [those] findings 

in the certified record.” Commonwealth v. Melendez-Negron, 123 A.3d 

1087, 1090 (Pa.Super. 2015). 

We first address Hendricks’ allegation that the PCRA court erred in 

finding the Commonwealth did not commit a Brady violation. “[T]here are 

three necessary components that demonstrate a violation of the Brady 

strictures: the evidence was favorable to the accused, either because it is 
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exculpatory or because it impeaches; the evidence was suppressed by the 

prosecution, either willfully or inadvertently; and prejudice ensued.” 

Commonwealth v. Lambert, 884 A.2d 848, 854 (Pa. 2005) (quoting 

Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001)). Hendricks 

contends that the Commonwealth withheld information regarding statements 

made by Janelle Gordon, who testified for the prosecution at trial. In 

particular, Hendricks avers that Gordon had informed the prosecution that 

Lont, who pled guilty to third-degree murder and conspiracy to commit firstdegree murder, told her that Hendricks had nothing to do with Rivera’s 

murder.

Hendricks’ claim is without merit. In support of his contention that the 

Commonwealth violated the dictates of Brady, Hendricks offered Gordon’s 

testimony6at the PCRA hearing.7 At the hearing, Gordon testified as 

follows:

Q. During any of those occasions [that you met with the 

prosecution], did you share with prosecution officials what 

Mr. Lont had said to you about the extent to which Mr. 

Hendricks was in any way involved in this homicide?

____________________________________________

6

In his original PCRA petition, Hendricks averred that “[s]ubsequent to 

the conclusion of [Hendricks’] direct appeal, undersigned counsel was 

contacted by Janelle Gordon, an important Commonwealth witness at the 

trial.” PCRA Pet., 6/19/14, at 2 (unpaginated).

7

Joshua Fulmer, Esquire, one of Hendricks’ trial attorneys, testified 

that the defense chose not to call Lont because his attorney had indicated 

that he would invoke his Fifth Amendment privilege against selfincrimination if called to testify. N.T. PCRA, 10/29/14, at 53.
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A. Yes.

Q. Okay. And what specifically did you tell the police or 

the District Attorney about that?

A. He had nothing to do with it. That he was just there

and he was scared. That actually Mr. Hendricks was going 

to go to the police and provide them, you know, with 

information about the murderer and eventually wanted to 

kill him himself. []

N.T., 10/29/14, at 11. Gordon explained that Lont told her he wanted to kill 

Hendricks. Id. at 12. She testified that the prosecution told her not to 

speak to “anyone about anything” and instructed her not to “bring up 

anything” that Lont had told her about Hendricks at trial. Id. at 15. 

Gordon said that she brought up what Lont had allegedly told her every time 

she spoke with police. Id. at 16-17.

Bethany Zampogna, Esquire and Jay Jenkins, Esquire, chief deputy 

district attorneys ("CDDAs”) involved with the investigation of Rivera’s death 

and Hendricks’ ensuing trial, also testified at the hearing. Zampogna and 

Jenkins testified that Gordon never told them that Lont had told her that 

Hendricks was uninvolved with Rivera’s shooting. N.T., 12/18/14, at 6, 17-

18. Zampogna testified that as a result of a motion in limine to exclude 

Lont’s statements to Gordon, she instructed Gordon not to say anything that 

Lont had told to her. Id. at 7. Zampogna also testified that she never told 

Gordon not to speak to the defense or anyone else. Id. at 7-8. William 

Dosedlo, a lieutenant with the Bethlehem Police Department who was 

involved with the case, also testified that Gordon had “never once in this 
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investigation” told him of Lont’s statement that Hendricks had nothing to do 

with the shooting. Id. at 12-13.

The PCRA court credited the testimony of Dosedlo and the CDDAs and 

discredited Gordon’s testimony. PCRA Ct. Op., 12/23/15, at 4. In 

particular, the PCRA court found that each statement given by Gordon had 

been disclosed to the defense, and that Gordon never told the prosecution 

about Lont’s alleged statement. Id. Because the record supports the PCRA 

court’s credibility determinations, we are bound by them. Commonwealth 

v. Dennis, 17 A.3d 297, 305 (Pa. 2011). Therefore, we conclude the PCRA 

court did not err in denying Hendricks’ PCRA claim based on the 

Commonwealth’s alleged violation of Brady.

We next turn to Hendricks’ claim that the trial court erred in denying 

relief based on trial counsel’s ineffectiveness. When analyzing 

ineffectiveness claims, “[w]e begin . . . with the presumption that counsel 

[was] effective.” Commonwealth v. Spotz, 18 A.3d 244, 259-60 (Pa. 

2011). “[T]he [petitioner] bears the burden of proving [counsel’s] 

ineffectiveness.” Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 

2009). To overcome the presumption of effectiveness, a PCRA petitioner 

must demonstrate that: “(1) the underlying substantive claim has arguable 

merit; (2) counsel whose effectiveness is being challenged did not have a 

reasonable basis for his or her actions or failure to act; and (3) the petitioner 

suffered prejudice as a result of counsel’s deficient performance.” Id. “A 
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claim of ineffectiveness will be denied if the petitioner’s evidence fails to 

meet any of these prongs.” Id. 

Hendricks argues that counsel was ineffective for failing to challenge 

the inconsistency of the verdicts in a post-sentence motion or on direct 

appeal. The trial court concluded that Hendricks’ conviction for third-degree 

murder was not inconsistent with his acquittal on the conspiracy charge 

because the Commonwealth proceeded on both co-conspirator and 

accomplice liability theories. We agree. 

Moreover, even if we were to conclude the verdicts were inconsistent, 

Hendricks would not be entitled to relief.

It is well-settled that inconsistent verdicts are permissible 

in Pennsylvania. Inconsistent verdicts, while often 

perplexing, are not considered mistakes and do not 

constitute a basis for reversal. Rather, the rationale for 

allowing inconsistent verdicts is that it is the jury’s sole 

prerogative to decide on which counts to convict in order 

to provide a defendant with sufficient punishment. When 

an acquittal on one count [] is inconsistent with a 

conviction on a second count, the court looks upon the 

acquittal as no more than the jury’s assumption of power 

which they had no right to exercise, but to which they 

were disposed through lenity. Thus, this Court will not 

disturb guilty verdicts on the basis of apparent 

inconsistencies as long as there is sufficient evidence to 

support the verdict. Further, [a]n acquittal cannot be 

interpreted as a specific finding in relation to some of the 

evidence[.]

Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa.Super. 2015) (internal 

citation and quotations omitted) (alterations in original), app. denied, 138 

A.3d 4 (Pa. 2016). 
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To the extent that Hendricks argues that the evidence to support his 

conviction for third-degree murder was insufficient, the PCRA court 

determined there was sufficient evidence to support the conviction. 

I find there was sufficient evidence to sustain the guilty 

verdict for third degree murder. There was evidence 

presented that the defendant helped set-up the victim; 

that he arrived at the victim’s house with [] Lont; that he 

communicated back and forth with both the victim and 

Lont prior to the shooting; and that he coordinated with 

Lont to flee the victim’s house and subsequently meet up 

with Lont.

PCRA Ct. Op. at 5 n.4. Because the PCRA court determined that Hendricks’ 

underlying substantive claim does not have arguable merit, and this 

determination is supported by the record and free of legal error, we need not 

address the remaining ineffectiveness prongs. 

Accordingly, the PCRA court properly denied Hendricks’ PCRA petition.

Order affirmed.

Justice Fitzgerald joins in the memorandum.

Judge Shogan filed a concurring/dissenting memorandum

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/11/2017
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1 18 Pa.C.S.A. 2502(c) 

Correctional Institution. 

a period of confinement of not less than 20 years nor more than 40 years in a State 

sentence Investigation Report (PSI), and on May 3, 2011, I sentenced the defendant to 

Degree, but had not yet been sentenced. Following the verdict, I ordered a PreLont, who at the time of the defendant's trial had pleaded guilty to Murder of the Third 

at trial showed that the shots that killed Mr. Rivera were fired by co-defendant Clyde 

Murder of the First Degree relating to the shooting death of David Rivera. The evidence 

On March 18, 2011, following a jury trial, the defendant was found guilty of one 

count of Murder of the Third Degree 1 and not guilty of Criminal Conspiracy to commit 

OPINION 

********** 

,_ ) Philip D. Lauer, Esquire 

On behalf of the defendant 

- 

Jay W. Jenkins, Chief Deputy District Attorney 

On behalf of the Commonwealth 

APPEARANCES: 

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- 

, 

********** 

Defendant 

MATIHEW HENDRICKS, 

vs. 

COMMONWEALTH OF PENNSYLVANIA No. 3173-2009 

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

Circulated 04/25/2017 08:38 AM
·---·----·-·····-··· 

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Trial Testimony 

On the night of April 20, 2007, Prisilia Bonila was dropping off her friend, Anesha 

Valez, at Valez's home at 1961 Hillcrest Road in the Parkridge Housing Development in 

Bethlehem, Pennsylvania. At the time, Bonila's cousin, Tonya Beltran, and Beltran's 

boyfriend, David Rivera (a.k.a. "D"), lived at 1933 Hillcrest Road. While Bonila was 

sitting in her car outside Valsz's house, a Chrysler 300 with New York plates drove past 

her heading in the direction of Beltran's residence. The car had tinted windows, so 

Bonila could not see how many occupants were inside. It was later determined that the 

Chrysler 300 belonged to co-defendant Clyde Lant (a.k.a. "Doughboy"/ "Dough" or 

''Fresh"), 

Ms. Bonila proceeded to leave Ms. Valez's house and drive to Ms. Beltran's 

house. On the way, Bonila passed the same Chrysler 300 parked on the side of the 

Summary of the Facts 

On May 10, 2011, the defendant filed Post-Sentence Motions consisting of the 

following: (1) Motion for New Trial based on after-discovered evidence relating to a 

statement made by Mr. Lont; (2} Motion for New Trial based on trial court error; and (3) 

Motion for New Trial based on juror misconduct. On August 3, 2011 , the defendant 

made an oral motion for a 30-day extension for decision on the motions, pursuant to 

Pa.R.Crim,P. 720(B)(3)(b), which I granted. On August 10, 2011, the defendant filed an 

amended post-sentence motion consisting of a Motion to Reconsider and Modify 

Sentence. Hearings on the motions were held on August 16, 2011, and September 8, 

2011. I took the motions under advisement, and the parties submitted briefs. This 

opinion follows. 
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road a few houses away from Beltran's house. Bonila pulled into Beltran's driveway and 

beeped her horn: Mr. Rivera came outside. Bonila asked Rivera if Beltran was home, 

and Rivera advised she was not. Bonila, referring to the Chrysler 300, asked Rivera if 

he knew who's car that was, and R.ivera said, "no." At that time, Bonila heard Rivera's 

Nextel phone "chlrp" and heard Rivera say, "Is that you?" Bonila did not hear a 

response. Bonlla proceeded to pull out of the driveway and drive in the direction of the 

Chrysler 300 back towards Valez's residence. When Borrila passed the Chrysler, she 

observed two figures in the front seats of the vehicle. She then observed a tall, black 

man exit the rear passenger side of the vehicle and walk towards Beltran's house. The 

man was wearing a.whlte shirt and a new pair of "Jordan" sneakers. Bonila did not 

recognize the man. 

Ms. Boni la arrived back at Ms. Valez's house and stayed for approximately 5 

minutes. She left Velez's and headed out of the housing development, which was in the 

opposite direction than Ms. Beltran's residence. As she was driving, Bonila observed 

the same tall, black man walking fast down the street. Ms. Bonila slowed down, asked 

the man if everything was all right, and asked him if he needed a ride. The man walked 

up to her car and got into the rear driver's side of Bonila's car. Bonila asked the man if 

he was ok, and the man said, "[I] don't know what happened; dude needs medical 

attention." Boni la asked the man his name, but he would not provide it to her. The man 

was acting agitated and jumpy, so Bonila asked him to get out of her car. Bonila pulled 

over in front of a McDonald's on Union Boulevard, and the man exited. Bonila did not 

see where the man went. 
-4- 

2 Mr. Rivera sustained seven gunshot wounds. Three of the wounds were to Rivera's back, including one 

contact wound and one fired within close range. 

3 Ms. Gordon was familiar with the smell due to Mr. Lent's use of the drug. 

Chrysler 300 and the defendant exited Gordon's car. The defendant got into the 

passenger seat of the Chrysler 300 and Lont got into the passenger seat of Gordon's 

vehicle. Lont.also smelled like PCP. Gordon proceeded to drive west on Route 22. 

During the drive, Lont confessed to shooting Mr. Rivera, and subsequently disposed of 

was in the driver's seat and Mr. Lont was in the passenger seat. Lont then exited the 

shirt and a hat. When the defendant got into her car, Gordon smelled PCP on his 

person.' Thereafter, she drove the defendant to the Exxon in Easton. 

At the Exxon, Ms. Gordon saw the Chrysler 300. She could see that Kadaf Miller 

Boulevard and drive him to the Exxon in Easton. Gordon subsequently drove to the 

McDonald's and picked up the defendant. Gordon saw the defendant wearing a white T ... 

girlfriend atthe time, received a call from Mr. Lont. Lont asked Gordon to go pick up the 

defendant, Matthew Hendricks (a.k.a, "Shy" or "Stink Ass") at the McDonald's on Union 

Following the shooting, sometime after 11 :00 PM, Janelle Gordon, Mr. Lont's 

called 911. David Rivera was later pronounced dead. His cause ofdeath was due to 

multiple gunshot wounds, and his manner of death was ruled a homicide.2 

the kitchen and saw Rivera lying motionless on the floor. Bonila left the house and 

shell casings on the floor and Rivera's Nextel lying on a rug. She then looked towards 

inner door was open. Bonila walked up and yelled for Mr. Rivera, but did not get a 

response. She opened the screen door and started to walk inside. As she did, she saw 

Thinking something may be wrong at Ms. Beltran's house, Ms. Bonila called 

Beltran's house, but the phone was busy. Bonila drove back to Beltran's and pulled up 

in front. She noticed that the front screen door to Beltran's house was closed, but the 
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4 The testimony was that Mr. Lont threw the gun clip outof the car on a back road near New Smithville, 

and threw the gun into the Lehigh River in south Bethlehem. 

5 Mr. Miller advised he ran because he had an outstanding warrant Due to the high speeds ofthe pursuit, 

a tire on the Chrysler 300 popped. Pursuing officers described seeing debris, sparks, and gouge marksin 

the street. Officers from Easton, Palmer Township, Wilson Borough, and the State Police were involved in 

the pursuit. 

11 Ms. Diaz testified on behalf of the defendant and indicated she was with Mr. Miller and did flee when he 

stopped the car. 

phones, and the keys to the Chrysler 300 inside the house. Miller was subsequently 

Miller and told him he wanted his car back. Miller has admitted he left money, two 

police surrounded the house. While hewas inside the house, Defendant Lont called 

on. Miller dld not pull over, but rather led police on a chase Which eventually ended in 

the 3300 block of Freemansburg Avenue," Miller exited the vehicle and ran to a friend's 

house next to where he stopped; Ms. Diaz ran to a nearby mini mart.6 Eventually, the 

When Miller left the gas station, a police vehicle pulled behind him with lights and sirens 

The Chrysler 300 was low on gas, so Miller drove to a nearby Exxon gas station. 

him when he switched cars, and the defendant was not with him. 

Lant took Miller's Acura TL. Miller said his girlfriend at the. time, Jennifer Diaz, was with 

asked to exchange cars with him because it was Friday nlqht.and Miller wanted to drive 

a nicer car. The two met near 11th Street in Easton, and Miller took the Chrysler 300 and 

According to Kadafi Miller; on the night of April 20, 2007 r he called Mr. Lont and 

trial that she withheld information because she was scared. 

testified in front of a grand jury in November 2008. Gordon testified at the defendant's 

subsequently spoke with the police, but admittedly withheld information until she 

Gordon and Lont's relationship ended sometime in August 2007. Gordon 

Pennsylvania. 

morning, Gordon drove Lont to New York, dropped him off, and returned to 

the gun and clip.4 Gordon and Lont spent the night in a hotel room. The following 
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7 According to the defendant, Mr. Rivera did not want people dropped off in front of his house since he 

sold drugs from his home. 

After a short time, Rivera returned to the living room and continued watching the game; 

not recognize the voice'. He also could not hear what the man and Rivera were saying. 

door. Rivera went to the door, opened it, and began talking through a screen door to an 

individual standing outside. The defendant could hear a male voice speaking, but he did 

The defendant advised that he walked to Mr. Rivera's residence and the two 

started watching a Yankees game. A few minutes later, someone knocked on Rivera's 

side of Easton by two females in a white Toyota Corolla. The females drove the 

defendant to a Spanish store near Rivera's house and dropped him off.7 

the Parkridge Housing Development. The defendant said he was picked up on the south 

that he was sending someone over to pick him up and bring him to Rivera's house in 

20, 2007, he received a phone call at home from Mr. Rivera. Rivera told the defendant 

During this interview, the defendant told the detectives that on the night of April 

death of David Rivera. The detectives then interviewed the defendant. 

The detectives met with the defendant and explained that they were investigating the 

Pennsylvania Probation and Parole Department in Allentown to interview the defendant. 

have been involved in the shooting. On June 13, 2007, Dosedlo and Diluzio wentto the 

death of Mr. Rivera. Through the investigation, Dosedlo learned that the defendant may 

Department's Criminal Investigation Unit, were assigned to investigate the shooting 

Sergeant William Dosed lo and Lieutenant Mark Diluzio, of the Bethlehem Police 

phoneswere recovered from the house. 

taken into custody. A leather coat, car keys, a large amount of money, and two cell 

-., 
-------~·--·--·- ... ·---·-·-·--··"· .. ···-·--·""'""""'""'" 

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II Additionally, the defendant admitted having that phone with him the night of the shooting and admitted 

making calls wlth that phone. 

and direct connect number 183*620* 4212, and the defendant utilized a cell phone with 

telephone number 215-730-8204 and direct connect number 183*635*3097 .8 The 

Detectives learned Mr. Lant utilized a cell phone with telephone number 484-550-0184 

information for several cell phones associated with this case. With this information, 

and outgoing calls, duration of calls, and originating and terminating cell phone tower 

As part of the investigation, detectives obtained subscriber information, incoming 

ended. 

defendant also said that he "would not kill his friend." The interview subsequently 

to the detectives that "it happened so fast" and "he should not have died." The 

two occasions, the defendantvomited into a trashcan. The defendant made statements 

During the interview, the defendant began to cry and became very emotional. On 

lot of "Dough boys" and "Douqhs", but was not friends with any of them. 

he knew somebody by the nickname Doughboy, the defendant advised that he knew a 

involved in Rivera's death. The defendant denied this. When questioned about whether 

that he went to Mr. Rivera's family's house after the shooting and admitted being 

The defendant was questioned regarding information the detectives had obtained 

been shot, and then left the scene. 

the front of the residence. He said he yelled to Bonila to get help because Rivera had 

minutes. He then walked to the front of Mr. Rivera's house and observed Ms. Bonita at 

said he ran from the residence out a back door and hid in a section of woods for a few 

and, shortly thereafter, heard the door open and heard several gunshots. The defendant 

The defendant told the detectives that at some point he walked into the kitchen 
·--,.··--·-·-~·---·- ---·------------·------ 

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9 The two phones recovered from the house following Mr. Miller's arrest were associated with phone 

number 434-634-0095 / direct connect number 168'*271897*12 and phone number 610-496-7111 / direct 

connect number 168"663*5753. 

the defendant. A female named "Tay" picked up the defendant, dropped him off at a 

Rivera called the defendant and said he wanted PCP and was sending a girl to pick up 

defendant made plans to go to Mr. Rivera's house to discuss a new car for Rivera. 

the back seat, but could not recall what type of car he was ln. Later that day, the 

and Fresh to go to a liquor store in Easton. Fresh was driving, and the defendant sat in 

cell phone to Mr. Lent's cell phone were made by Miller. 

Sometime during the day on April 20, 2007, the defendant met up with Mr. Miller 

was Clyde Lont. According to the defendant, the numerous calls from the defendant's 

man to the defendant as "Fresh," but the defendant testified that he did not know Fresh 

knew someone that could get PCP, and used the defendant's phone to call his contact. 

Miller and the defendant met with this person to purchase PCP .. Miller introduced the 

trying to get PCP, but could not reach any of his contacts. As such, Mr. Miller said he 

The defendant testified at his trial. He advised that on April 19, 2007, he was 

defendant's fingerprints were found on the exterior of the rear, passenger side door. 

evidence connected the defendant and Mr. Millerto the Chrysler. Notably, the 

Finally, DNA evidence linked Mr. Lant to the Chyrsler 300, and fingerprint 

shooting on the night of April 20, 2011. Additional information showed that the 

defendant also communicated with Mr. Miller that night.9 

indicated l.ont and the defendant communicated with each other before and after the 

prior to his murder was 183*635*3097, the defendant's number. The records also 

connect number 176"'885"'8944. The last numberto communicate with Rivera's phone 

phone found with Mr. Rivera's body had a phone number of 718'-502-2583 and a direct 
·----- ·-- 

- 9 ~ 

10 At the time, the defendant believed it was still iight outside when he arrived at Rivera's house. 

However, at trial, he confirmed making calls back and forth from his phone to Rivera's phone between 

7:26 PM and 10:14 PM, and said hewould not have been calling Riverawhile in the house with him. 

the house. Negron's girlfriend drove everyone back to Rivera's house. The defendant 

defendant's house in Easton and the defendant got his own vehicle. The defendant then 

drove to Negron's house in Bethlehem. Negron, his girlfriend, and their children were at 

one of the defendant's friends. Negron was not there, so the two drove to the 

Tweena drove the defendant to the workplace of Robert Negron (a.k.a. "Macho"), 

up that night. The defendant also denied being in a car with Mr. Miller following the 

shooting and denied meeting up with Mr. Lont in Easton. 

up. According to the defendant, he never saw Janelle Gordon and she did not pick him 

get a ride. He reached a woman named "Tweena," and she subsequently picked him 

McDonald's on Union Boulevard. The defendant called several people in an attempt to 

believed the woman was acting too "nonchalant," so he got out of the car near the 

sitting in a car. He ran to the car, got in, and said "D needs medical attention." He 

the house and saw a woman (Bonilla) he thought to be related to Rivera's girlfriend 

and hid in some woods for a short time. He then walked around the comer to the front . . . . . . . . . of 

open and heard gunshots. The defendant dropped the phone, ran out the back door, 

he heard Rivera talking to someone through the screen door. He then heard the door 

get out of the backseat of a Chrysler 300 at Rivera's. 

Inside Rivera's residence, the defendantwas on the phone in the kitchen when 

Rivera's house sometime after 10:14 PM, and did not notice a Chrysler 300 in the 

area." He also testified that he did not arrive to Rivera's in a Chrysler 300 and did not 

defendant said he was wearing a blue hooded sweatshirt and black boots. He arrived at 

Spanish store near Rivera's house, and the defendant walked to Rivera's house. The 
--·-·--·-------·-·---- ·--- ---- .. ·--- .. ······--·-.,---···- .. ··--····""''""""""-···-·· .. ·······-·-·'"••••""''"""""''- 

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recalled seeing the police there, but said he did not talk to any officers because he was 

on state parole and was worried about getting in trouble. 

Subsequentto the shooting, the defendant went to the home of Mr. Rivera's 

mother, Lilliam, and met with Rivera's family and friends. The defendant admitted to the 

gmup that he was present when Rivera was shot, but said he did not know who shot 

Rivera. At trial, the defendant admitted he embellished the story of what happened, 

specifically telling people that the shooter came in and hit the defendant in the mouth 

with the gun, chipping his tooth. The defendant said he did this because he believed 

Rivera's family and friends were upset because he ran following the shooting instead of 

helping Rivera. 

At trial, the defendant admitted he called Mr. Lont while he was at Llllarn's house. 

He stated everyone at the house was looking for drugs, and he recognized Lent's 

number in his phone as being someone Mr. Miller previously called for drugs using the 

defendant's phone. According to the defendant, he did not know he was calling Lont. 

The defendant testified that he did not shoot David Rivera, he did not have any 

understanding with anyone else in regard to shooting Rivera, and he did not know 

anything was going to happen to Rivera on April 20, 2007. 

Post-sentence Motion Hearing - August 16, 2011 

Following the defendant's trial, co-defendant Clyde Lant was sentenced on April 

25, 2011. On or about April 30, 2011, the defendant's counsel; Philip D. Lauer, Esquire, 

received a notarized statement from Mr. Lant regarding the shooting of Mr. Rivera. In 

the statement, Lant indicated he acted without the assistance, planning, or knowledge 
----------------·-·--- ·----------------- 

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of the defendant. At the defendant's post-sentence motion hearing on August 16, 2011, 

Lant testified on behalf of the defendant. 

Mr. Lont advised that he did not speak to the defendant about killing Mr. Rivera 

and he did not have any agreement with the defendant to kill Rivera. Lant testified that 

he in fact had no plan to kill Mr. Rivera when he went to his house on the nightof April 

20, 2007, and it just happened "spur of the moment." He said Rivera charged at him and 

tried to take his gun, so he began firing. Lant also stated that he never spoke with the 

defendant on the phone before that evening, on that evening, or after that evening, and 

stated the defendant was not with him when he arrived at Rivera's house. Lont testified 

he left Rivera's with Kadafi Miller, and while they were driving, the defendant called 

Miller and told him that he was at Rivera's when Rivera was shot. Lont also testified that 

he and Miller drove to Easton and that he saw the defendant arrive there with Ms. 

Gordon. Thereafter, he got in the vehicle with Gordon and the defendant got in the 

vehicle with Miller. 

Mr. Lont admitted he pied guilty to criminal conspiracy with the defendant 

regarding the shooting of Rivera, but stated he only did that because it was part of the 

deal and he Just wanted to get everything over with. He denied confessing to Janelle 

Gordon and denied disposing of the gun. Lont stated Ms. Gordon got rid of the gun. 

Lieutenant Dosedlo also testified at the hearing. Dosedlo indicated he was 

involved in an interview with Mr. Lont following the shooting. At the interview; Lant 

denied shooting David Rivera, and told Dosedlo that he only confessed to his girlfriend 

because he would say things to women in order to manipulate them. l.ont also told 
- 12 - 

Dosedlo that he and Rivera had mutual friends, including Shy, although he did not know 

Shy's real name. 

Post-sentence Motion Hearing - September 8, 2011 

Gavin Holihan, Esquire, counsel for Clyde Lont. testified that he and Mr. Lont met 

with Attorney Lauer and the defendant to discuss Mr. Lont testifying at the defendant's 

trial. At the meeting, Attorney Holihan advised Attorney Lauer thatLent would not testify 

at the trial; and that if Lont were called as a witness, he would exercise his 5th 

Amendment right against self-incrimination. 

Ajuror from the defendant's trial (Juror 1) testified that at some point during the 

trial, a second juror (Juror2) made a statementin front of all the jurors regarding a 

possible video Juror 2 had seen. Juror 2 indicated he had seen Mr. Rivera's mother 

scbblnq following another verdict in connection with this case. Based on the statement, 

Juror 1 assumed Juror 2 had seen some sort of video. 

Discussion and Conclusions of Law 

Motion for New Trial - After-Discovered Evidence 

The defendant asks the court to grant him a new trial based on after-discovered 

evidence, namely the testimony by Mr. Lont that the defendant was not involved in the 

planning or commission of the killing of David Rivera. 

A new trial may be granted on the basis of after-discovered evidence if the new 

evidence (1) has been discovered afterthe trial and could not have been obtained at or 

prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not 

merely corroborative or cumulative; (3) will not be used solely for impeaching a witness; 

and (4) is of such a nature and character that a different verdict will likely result if a new 
·--------- ·--- ---~·-------·--·--·- .. ---h··· --.,- ........ ..,_,_..,_ ... ,, ._.,. __ 

- l3 - 

In the present case, I do not find that the testimony of Clyde Lont constitutes 

after-discovered evidence warranting a new trial. Initially I note, and the Commonwealth 

concedes, that the evidence was clearly unavailable at the time of trial since Attorney 

Holihan advised Attorney Lauer that Mr. Lont would invoke his 5th Amendment right 

against self-incrimination if called to testify. Commonwealth v. Fiore, 780 A.2d 704 

(Pa.Super, 2001 ). However, I do not find the testimony of Mr. Lont to be credible, nor do 

I find it to be of such a nature that it would result in a different verdict ifa new trial were 

granted. 

First, Mr. Lont's testimony contradicts much of the evidence presented at trial. 

Lont denied confessing to Ms. Gordon and denied disposing of the gun; contrary to the 

credible trial testimony of Gordon. Lant testified he never spoke with the defendant 

before or after the shooting, despite the cell phone records indicating multiple calls back 

and forth between the two men. Notably, the defendantadmittedto calling Lont 

following the shooting in an attemptto purchase drugs. Additionally, Lant testified the 

trial is granted. Commonwealth v. Nocera, 582 A.2d 376, 380 (Pa.Super. 1990). A trial 

court's decision not to grant a motion for new trial based on after-discovered evidence 

will not be disturbed on appeal absent a clear abuse of discretion. Commonwealth v, 

Parker, 431 A.2d 216 (Pa. 1981 ). 

Additionally, any post-sentence testimony of jailed accomplices whose sentences 

have been imposed by the court is looked upon with much disfavor. Commonwealth v 

Lambert, 603 A.2d 568 (Pa. 1992). A co-conspirator already serving time has little to 

lose by attempting to free his partner. Commonwealth v. Tetvelon, 345 A.2d 671 (Pa. 

1975). 

..-,_·. 
--------·--·--- 

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defendant was not with him when he arrived at Mr. Rivera's house, despite the credible 

testimony of Ms. Bonilla that she saw the defendant exit the rear passenger side of 

Lont's vehicle, and the fingerprint evidence linking the defendant to the vehicle. 

Second, Mr. Lont's testimony contradicts the defendant's own version of events. 

The defendant maintains that Ms. Gordon did not pick him up following the shooting, 

that he did not meet up with Mr. Lant in Easton, and that he did not get ln a vehiclewith 

Mr. Miller that night. Lent's testimony was that he saw Gordon drop off the defendant in 

Easton and saw the defendant get into the car with Miller. 

Finally, and perhaps most importantly, Mr, Lent's testimony is inherently 

unreliable. Lent's statements came after he was sentenced for his role in the homicide 

and therefore had nothing to lose by attempting to free the defendant - hls accomplice. 

In light of all the credible evidence presented at the defendant's trial, I do not find that 

the addition of Lent's conflicting testimony would result in a different verdict if a new trial 

were granted. As such, the defendant's motion for a new trial based on afterdiscovered evidence is denied. 

Motion for New Trial • Trial Court Error 

First Degree Murder Charge 

The defendant next alleges that I erred in submitting the charge of first degree 

murder to the jury because there was no evidence of a specific intent to kill on the part 

of the defendant. 

"A trial court shall only instruct on an offense where the offense has been made 

an issue in the case and where the trial evidence reasonably would support such a 

verdict." Commonwealth v. Browdie, 671 A.2d 668, 674 (Pa. 1996). In the instant case, 
- 15 - 

656 A.2d 1335, 1343 (Pa. 1995}. It is difficult to see how the defendant was prejudiced 

only where such error has been prejudicial to the defendant. Commonwealth v. May, 

jury, it was harmless. In alleging an error in jury instructions, a new trial is warranted 

Additionally, even if I were to find that it was an error to submit that charge to the 

first degree murder to the jury 

Lant in planning and carrying out the killing of David Rivera, and that the defendant did 

so with the specific intent to kill Rivera. As such, I did not err in submitting the charge of 

evidence, the jury could have reasonably concluded that the defendant coordinated with 

communicating with and meeting up with Lont following the shooting. From this 

prior to the shooting; coordinating with Lant to flee from Rivera's house; and 

house With Lant just prior to the shooting; communicating with both Rivera and Lant 

the defendant worked with Lont to set-up Rivera, which included arriving at Rivera's 

David Rivera and did so with a specific intent to kill. There was evidence presented that 

The evidence in this case showed that the defendant aided Clyde Lant in killing 

Commonwealth v. Pagan, 950 A.2d 270, 278-279 (Pa. 2008). 

To sustain a conviction for first-degree murder, the Commonwealth must 

prove, beyond a reasonable doubt, that a human being was unlawfully 

killed, that the accused was responsible for the killing, and that the 

accused acted with a specific intent to kill, A defendant may be convicted 

of first-degree murder on a theory of accomplice liability so long as the 

facts support the conclusion that the defendant aided, agreed to aid, or 

attempted to aid the principal in planning or committing the offense, and 

acted with the intent to promote or commit the offense, i.e., the intentional 

killing. The Commonwealth may prove that a killing was intentional solely 

through circumstantial evidence. .· 

presented would have supported a guilty verdict to such charge. 

a charge of first-degree murder was at issue in the defendant's case, and the evidence 
--··-·-··-··--·------------------------ 

- 16 - 

11 In the defendant's initial brief, he indicated this issue would be addressed in a supplemental brief. 

However, other than a general allegation that I erred in admitting the evidence, the defendant does not 

address this issue in his supplemental brief, nor does he indicate he has withdrawn this issue. In the 

event the defendant is still pursuing this issue, r will address the merits of the allegation. 

warrant a new trial. 

connect number 176*885*8944was Rivera's. The defendant's allegation does not 

nickname David Rivera was known by; and the defendant acknowledged that direct 

Miller's cell phone, direct connect number 176*885*8944 was associated with "D," a 

Boni la saw Rivera talking on a Nextel phone just prior to his murder; a Nextel phone 

with direct connect number 176*885*8944 was found near Rivera's body; in Kadafi 

established a link between the cell phone and Rivera. The evidence showed that Pricilla 

in the preparation and killing of Rivera. Furthermore, the Commonwealth sufficiently 

to Mr. Rivera's murder is certainly relevant ln determining whether the defendant aided 

Whether David Rivera and the defendant communicated via cell phone just prior 

less probable than it would be without the evidence." Pa.R.E. 401. 

of any fact that is of consequence to the determination of the action more probable or 

2008). Relevant evidence is any evldence "having any tendency to make the existence 

evidence is relevant. See Pa.R.E. 402; Commonwealth v. Cook, 952 A.2d 594 (Pa .. 

As regardsthe admissibility of evidence, the threshold inquiry is whether the 

The defendant also alleges I erred in admitting into evidence information related 

to the ownership and usage of a cell phone found near David Rivera's body following 

the shooting.11 This allegation is wholly without merit. 

Cell Phone Evidence 

defendant guilty of that charge. As such, a new trial is not warranted. 

by the inclusion of the first degree murder instruction when the jury did not find the 
- 17 - 

Motion for New Trial - Juror Misconduct 

When a court is made aware that a juror has been exposed to extraneous 

information, which may have affected the juror's deliberation, the trial court must assess 

the prejudicial effect of such influence. Commonwealth v, Messersmith, 860 A.2d 1078, 

1085 (Pa.Super.2004). In maklnqthls assessment, a court should consider: (1) whether 

the extraneous influence relates to a central issue in the case or merely involves a 

collateral issue; (2) whether the extraneous influence provided the jury with information 

they did not have before them at trial; and (3) whether the extraneous influence was 

emotional or inflammatory in nature. Id. "Onlywhen there has been prejudice to the 

accused does an act of juror misconduct require the granting of a new trial." 

Commonwealth v. Flor, 998 A2d 606, 639 (Pa, 2010). 

The court may not consider the subjective impact the influence had on the juror, 

but must determine how an objective, typical juror would be affected by such an 

influence. Messersmith, 860 A.2d at 1085. The burden of proving that the extraneous 

influence was prejudicial is on the moving party. Id. at 1086. 

In the case sub Judice. Juror 1 testified that she was made aware that Juror 2 

may have seen a video of David Rivera's mother sobbing during another proceeding in 

this matter. Juror 1 could not offer any further details on this incident. In fact, Juror 1 

assumed it was a video that Juror 2 was referring to based on his statement that he had 

seen Rivera's mother sobbing. Evert assuming Juror 2 had in fact seen a video in 

regard to this case, I find it difficult to conclude that it was prejudicial. It is not alleged 

the video was played in the deliberation room, and outside the brief statement made by 

Juror 2, the incident was not again discussed among the jurors. The potential 
---·-····-··-·-····---·-········ 

- 18 - 

Yesterday, Detective Dosedlo made a comment that is not proper 

evidence in this case, and I will ask you to recall that comment. It was 

objected to by Attorney Lauer, and I sustained the objection, and I granted 

his motion to strike. In no way, shape, or form are you to consider this as 

curative instruction to the jury: 

dismissed and the parties made arguments on the motion for mistrial. Thereafter, I 

denied the defendant's motion. When the jury was brought back in, I gave the following 

took place and Attorney Lauer moved for a mistrial. The jury was subsequently 

disregard the latter portion ofthe witness's testimony. Thereafter a sidebar discussion 

I sustained the objection, granted the motion to strlke, and instructed the jury to 

Immediately following this, Attorney Lauer objected and made a motion to strike. 

Yes. He also admitted to being in a conspiracy with 

your client. · 

A [Dosed lo]: 

Q [Attorney Lauer]: You agree, don't you, that Clyde Lant has admitted to 

shooting David Rivera? 

questioning l:>y the defendant's counsel, the following exchange took place: 

Dosedlo was recalled to the stand during the defendant's case-in-chief. During 

pleaded guilty to criminal conspiracy. The testimony at issue arose when Sergeant 

In his post-sentence motions, the defendant alleges I erred in denying his motion 

for mistrial following testimony from Sergeant Dosed lo concerning the fact that Mr. Lant 

Motion for New Trial- Denial of Motion for Mistrial 

defendant's motion for a new trial is denied. 

such information would have affected the deliberations of an objective juror. The 

v. King, 990 A.2d 1172 (Pa.Super, 2010). lflnd the defendant has failed to prove that 

extraneous information was at best "vague, ambiguous and brief." See Commonwealth 
·---··------~····-···· 

- 19 - 

12 It is worth noting that just prior to the remark in question, Attorney Lauer asked Sergeant Desedlo the 

same question and the attorney for the Commonwealth, Attorney Jay Jenkins, objected and asked to 

approach. In a sidebar discussion, Attorney Jenkins advised the court that he was concerned thatthe 

question by Attorney Lauer would open the door to what Mr. Lont pied guilty to. Despite the concern 

raised by Attorney Jenkins, Attorney Lauer decided to proceed with the question. 

testimony from the record and providing a curative instruction was the appropriate 

course of action, and a mistrial was not warranted. Furthermore, I find the comment did 

nature that it could not be corrected with a curative instruction. I believe striking the 

remark was certainly nonresponsive to the question, but I do not bel.ieve it was of such a 

While the remark did corns from the police prosecutor in this case, it was not 

elicited by the Commonwealth. nor was it exploited by the Commonwealth .12 The 

Gillen, 798 A.2d 225, 231 (Pa.Super. 2002). 

law presumes that jurors will follow the trial court's instructions." Commonwealth v. 

Commonwealth v. Bracey, 831 A.2d 678, 682 (Pa.Super. 2003) (citations omitted). "The 

A mistrial is an 'extreme remedy ... [that] ... must be granted only when an 

incident is of such a nature that its unavoidable effect is to deprive 

defendant of a fair trial.' A trial court may remove taint caused by improper 

testimony through curative instructions. Courts must consider all 

surrounding circumstances before finding that curative instructions were 

insufficient and the extreme remedy of a mistrial is required. The 

circumstances which the court must consider include whether the 

improper remark was intentionally elicited by the Commonwealth, whether 

the answer was responsive to the question posed, whether the 

Commonwealth exploited the reference, and whether the curative 

instruction was appropriate. 

As regards the denial of a motion for mistrial, our courts have said: 

case-in-chief. 

After giving the curative instruction to the jury, the defendant continued with his 

evidence aqalnst the defendant concerning the charges in this case. You 

are to totally disregard that testimony. 
- 20 - 

guilty, and the rehabilitative needs of the defendant. Pa.C.S.A. § 9721 (b). At the time of 

to protect the community, the gravity of the offense for which the defendant was found 

witnesses presented, and the arguments of counsel. Additionally, I considered the need 

account all the information available to me at the time, including the PSI report, the 

20 to 40years in a state correctional institute. In sentencing the defendant, I took into 

I submit I did not err in sentencing the defendant to a period of incarceration of 

considerations along with mitigating statutory factors.'" Commonwealth v. Tirado, 870 

A.2d 362, 368 (Pa.Super. 2005) (citations omitted). 

aware of the relevant information regarding defendant's character and weighed those 

a court has the benefit of reviewing a PSI, "it is presumed that the sentencing court 'was 

Commonwealth v. Miller, 965 A.2d 276, 277 (Pa.Super. 2009) (citations omitted). When 

In order to constitute an abuse of discretion, a sentence must either 

exceed the statutory limits or be so manifestly excessive as to constitute 

an abuse of discretion. Further, a sentence should not be disturbed where 

it is evident that the sentencing court was aware of sentencing 

considerations and weighed the considerations in a meaningful fashion. 

Commonwealth v. Johnson, 961 A.2d 877 (Pa.Super. 2008). 

and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. 

Sentencing is a matter vested in the sound discretion of the sentencing judge, 

to be without merit 

circumstances and asks for a modification of sentence. I find the defendant's allegation 

The defendant next alleges the sentence imposed was excessive under the 

Motion to Reconsider and Modify Sentence 

criminal conspiracy. As such, the defendant's motion is denied. 

not prejudice the defendant considering the jury found the defendant not guilty of 
- 21 - 

October 6, 2011 

sentencing, the defendant had a prior record score of 3 and the charge carried an 

offense gravity score of 14. The standard range minimum was 129 to 240 months. 

Taking into consideration all the information available to me at sentencing, I did 

not abuse my discretion in sentencing the defendant. The defendant's motion is denied. 

Conclusion 

Based on the foregoing reasons, the defendant's Post-Verdict Motions are 

without merit and are therefore denied.