Com. v. Cordero, M.

• Court: Superior Court of Pennsylvania
• Decided: September 27, 2017
• Docket: 3319 EDA 2016
• Status: Unpublished

Opinion

J-S34024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

MATTHEW CORDERO

Appellant No. 3319 EDA 2016

Appeal from the Judgment of Sentence Dated September 30, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000654-2015

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.: FILED SEPTEMBER 27, 2017

Appellant Matthew Cordero appeals from the judgment of sentence

following his convictions for first degree murder, robbery, conspiracy to

commit robbery, and possession of an instrument of crime.1 We affirm on

the basis of the trial court’s opinion.

The trial court aptly summarized the underlying facts. See Trial Ct.

Op., 12/9/16, at 2-6. On September 13, 2013, Appellant and his girlfriend,

Krista McDevitt, conspired to lure the decedent, Joseph Britton (McDevitt’s

former boyfriend), to a location in the Frankford neighborhood of

Philadelphia, where Appellant and McDevitt planned to rob him. McDevitt

____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. §§ 2502(a), 3701(a)(1)(i), 903, and 907(a), respectively. J-S34024-17

successfully lured Britton to Frankford, but when she met Appellant to tell

him, Appellant became jealous and enraged, approached Britton (who was

waiting for McDevitt in a borrowed car), and struck him three or four times

with an aluminum baseball bat, killing him. Appellant searched the car and

Britton’s pockets for drugs and money, but retrieved only $1. Appellant

discarded the car keys and then boasted to others of the crime and warned

them not to report him to the police.

At trial, in addition to various law enforcement officers and the

medical examiner, the Commonwealth presented the testimony of McDevitt,2

Howard Hilgendorff (Britton’s roommate, who lent Britton his car that day),

Ian Pawlowic (Appellant’s friend, who lent Appellant his baseball bat when

Appellant confided his plans for the robbery, and who helped Appellant

search the car following the murder), and Daquan Calloway (who, at thirteen

years old, heard Appellant announce his intention to rob Britton, observed

Britton’s body immediately following the murder, heard Appellant warn him

and his (Calloway’s) mother against reporting Appellant to the police,

witnessed his (Calloway’s) mother falsely tell a 911 operator and the

responding law enforcement officers that a group of four males had

committed the murder, and who had himself given a false statement to the

police which he recounted at trial).

____________________________________________ 2 McDevitt was not an eyewitness to the murder.

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During his closing argument, in order to demonstrate the force used in

the murder, the prosecutor “struck a cardboard [file storage] box resting on

the prosecutor’s table four times with a baseball bat, warping and slightly

cracking the top of the box.” Trial Ct. Op. at 11. Appellant moved for a

mistrial based on the prosecutor’s conduct, which the trial court denied.

On September 30, 2016, the jury convicted Appellant of the

aforementioned charges. Trial Ct. Op. at 1. Appellant received a mandatory

sentence of life imprisonment without parole for the first-degree murder

charge, and lesser concurrent sentences for the remaining counts. Id.

Appellant filed no post-sentence motions, but filed a timely notice of appeal,

and raises the following issues:

I. Is Appellant entitled to an arrest of judgment with regard to his convictions for first degree murder, robbery, criminal conspiracy to commit robbery and possessing instruments of crime since the evidence is insufficient to sustain the verdicts of guilt as the Commonwealth failed to sustain its burden of proving Appellant’s guilt beyond a reasonable doubt?

II. Is Appellant entitled to a new trial based upon the trial court’s denial of his motion for a mistrial made as a result of prejudicial misconduct of the prosecutor during his summation?

Appellant’s Brief at 4 (answers by the court below omitted).

Sufficiency of the Evidence

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. When reviewing a sufficiency claim the court

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is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

As a reviewing court, we may not weigh the evidence or substitute our judgment for that of the fact-finder, who is free to believe all, part, or none of the evidence.

Commonwealth v. Chambers, 157 A.3d 508, 512 (Pa. Super. 2017)

(ellipses, citations, and formatting omitted).

Appellant broadly argues that “there was no evidence presented to

show that Appellant acted with the specific intent to kill, malice, ill will or

premeditation, that he entered into an agreement to commit a crime, that

he removed any property from someone with force or the threat of force or

that he used or possessed a weapon or instrument of crime.” See

Appellant’s Brief at 18. More specifically, he complains that there was no

physical or scientific evidence presented by the Commonwealth to establish

Appellant’s involvement, id.; the Commonwealth failed to prove Appellant’s

identity as one of the perpetrators, id. at 22; no eyewitness testimony was

presented, id.; and the testimony presented by the Commonwealth “was

contradictory, inconsistent,[3] and biased” — in particular, Appellant asserts

that the testimony of Krista McDevitt and Ian Pawlowic was “tainted”

because they had received lesser sentences in their own cases in exchange

for their testimony at Appellant’s trial, id. at 22, 25-26. ____________________________________________ 3 Appellant does not specify which testimony was contradictory or inconsistent.

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Moreover, Appellant contends that the allegations “did not evidence a

specific intent to kill, but an individual who was out of control and who was

under the influence of a sudden and intense passion stemming from belief

that Krista McDevitt shared drugs with or had sex with the victim.”

Appellant’s Brief at 22. Appellant asserts that “the Commonwealth did not

rebut evidence showing that Appellant acted in the heat of passion at the

time the victim was killed. At most, Appellant’s actions constitute voluntary

manslaughter.” Id. at 25.

After a review of the record, the briefs of the parties, the applicable

law, and the well-reasoned opinion of the Honorable Barbara A. McDermott,

we conclude that there was sufficient evidence presented to establish

beyond a reasonable doubt that Appellant committed the above crimes. See

Trial Ct. Op. at 6-10 (reviewing the elements of each crime of which

Appellant was convicted and concluding (1) that specific intent to kill was

proven by the evidence establishing that Appellant “ambushed the

unsuspecting decedent as he waited in his car and employed a deadly

weapon, an aluminum baseball bat, to strike him in his vital head and neck

three to four times, killing him instantly,” that Appellant had done so after

purposefully travelling to the decedent’s location in a fit of rage, and that

Appellant boasted about the murder afterwards; (2) that conspiracy to

commit robbery was established when McDevitt testified that she and

Appellant had “concocted a scheme to support their drug habits by luring her

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former friends and paramours to Philadelphia and robbing them,” and had

done so with Britton; (3) that Appellant “manifested his intent to rob

decedent by obtaining a baseball bat and lying in wait to ambush the

decedent outside Wissinoming Park,” “clearly attacked the decedent with the

dual intent to murder him and rob him of his belongings,” and “[a]fter the

murder, . . . returned to ransack the vehicle . . . [and] took control of the

decedents’ car keys and a single one-dollar bill, completing the robbery”;

and (4) that possessing an instrument of a crime was established by the

evidence that “[o]n the day of the murder, [A]ppellant acquired the baseball

bat from Pawlowic and a pair of socks he used as gloves . . . [Appellant]

struck the decedent with the bat three to four times with the intent to kill

him for taking drugs and having sex with McDevitt and to rob him of any

money or drugs he had on his person”).

In addition, we note that Appellant’s arguments relate mainly to the

weight, and not the sufficiency, of the evidence. See Commonwealth v.

Wilson, 825 A.2d 710, 713-14 (Pa. Super. 2003) (“A sufficiency of the

evidence review . . . does not include an assessment of the credibility of the

testimony offered by the Commonwealth. . . . Such a claim is more properly

characterized as a weight of the evidence challenge” (citations omitted)).

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Finally, regarding Appellant’s argument that the evidence establishes

the lesser crime of voluntary manslaughter,4 we find that Appellant made no

argument at trial regarding voluntary manslaughter, did not request a jury

charge on provocation, and did not raise the issue in his Rule 1925(b)

statement. We therefore hold that Appellant waived that aspect of his claim.

See Pa.R.A.P. 302 (claims may not be raised for the first time on appeal);

Pa.R.A.P. 1925(b)(4)(vii) (issues not raised in the 1925(b) statement are

waived).

Motion for Mistrial/Prosecutorial Misconduct

In reviewing an assertion of prosecutorial misconduct, our inquiry centers on whether the defendant was deprived of a fair trial, not deprived of a perfect trial. It is well-settled that a prosecutor must be free to present his or her arguments with logical force and vigor. Comments grounded upon the evidence or reasonable inferences therefrom are not objectionable, nor are comments that constitute oratorical flair. Furthermore, the prosecution must be permitted to respond to defense counsel’s arguments. Consequently, this Court has permitted vigorous prosecutorial advocacy provided that there is a reasonable basis in the record for the prosecutor’s comments. A prosecutor’s remarks do not constitute reversible error unless their unavoidable effect would prejudice the jurors, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. Finally, we review the allegedly improper remarks in the context of the closing argument as a whole.

____________________________________________ 4 A successful “heat of passion” defense reduces a homicide charge to voluntary manslaughter. See 18 Pa.C.S. § 2503(a)(1) (“A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by . . . the individual killed”).

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Commonwealth v. Sneed, 45 A.3d 1096, 1109–10 (Pa. 2012) (quotation

marks, brackets, and citations omitted).

Appellant argues that “the prosecutor’s demonstration in front of the

jury went beyond permissible oratorical flair, and was done in a flamboyant,

erratic, or frightening manner. The striking of the cardboard filing box could

only have been designed to appeal to the jury’s prejudices.” Appellant’s Brief

at 32. Appellant complains that the medical examiner “did not testify to the

amount of force used to strike the victim,” and that “[t]here was no

testimony presented by the Commonwealth to indicate that the victim was

struck in the same manner as the prosecutor struck the cardboard filing box.

As a result, the prosecutor’s demonstration had the effect of impermissibly

introducing evidence that was not presented at trial.” Id. at 32-33.

After a thorough review, we agree with the trial court’s conclusion on

this issue as well. See Trial Ct. Op. at 11-12 (reviewing the law applicable to

a prosecutor’s statements and concluding that “[u]ncontroverted evidence,”

including the testimony of the medical examiner, “permitted the jury to

make a reasonable inference that [Appellant] struck the decedent three to

four times with a baseball bat while using a significant amount of force,” that

the Commonwealth’s demonstration mirrored the evidence at trial, and that

there was no basis for a finding of prejudice). We note that in a similar case,

Commonwealth v. Johnson, 719 A.2d 778 (Pa. Super. 1998) (en banc),

appeal denied, 739 A.2d 1056 (Pa. 1999), the defendant was on trial for

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committing first degree murder with a baseball bat, and the prosecutor,

during his closing statement, struck a cardboard box with a baseball bat. Id.

at 789. There, as here, the trial court denied the defendant’s motion for a

mistrial, and we affirmed, stating that “the record is insufficient to determine

the prejudicial effect, if any, of the baseball bat demonstration, which . . .

bore a reasonable relation to the circumstances of the case and to the

prosecutor's argument regarding malice.” Id. at 789-90.5

Thus, we affirm on the basis of the trial court’s opinion, and the parties

are instructed to attach a copy of the trial court’s opinion of December 9,

2016, to any future filing that references this Court’s decision.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/27/2017

____________________________________________ 5 In Johnson, we also noted that “[a]ny prejudice was speculative and certainly cured by the court’s instruction” to the jury, which was: “insofar as [the prosecutor] attempted to demonstrate the noise of the bat, that is not evidence in this case and also must be stricken.” 719 A.2d at 789-90. Although here, no instruction was given in response to the demonstration, we note that the jury was instructed that the closing statement of the prosecutor was not to be construed as evidence. See N.T., 9/29/16, at 13, 100.

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