Com. v. Hendrickes, D.

• Court: Superior Court of Pennsylvania
• Decided: July 15, 2022
• Docket: 1431 MDA 2021
• Status: Unpublished

Opinion

J-S10024-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DOLLY S. HENDRICKES : : Appellant : No. 1431 MDA 2021

Appeal from the Judgment of Sentence Entered July 15, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0006007-2019

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: JULY 15, 2022

Dolly S. Hendrickes appeals from the judgment of sentence of life

without the possibility of parole imposed on her conviction for first-degree

murder. Counsel has filed a Motion to Withdraw and an Anders1 brief. We

grant counsel leave to withdraw and affirm the judgment of sentence.

We need not recite the underlying facts at length. In sum, a jury

convicted Hendrickes after hearing evidence, including testimony from three

eye-witnesses, which established that she had killed her boyfriend by running

him over with her car. See Trial Court Opinion, filed December 22, 2021, at

2-6. The court sentenced her to life without the possibility of parole and denied

her post-sentence motion.

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* Retired Senior Judge assigned to the Superior Court.

1 Anders v. California, 386 U.S. 738 (1967). J-S10024-22

Hendrickes filed a notice of appeal. The court ordered her to file a

concise statement of errors. See Pa.R.A.P. 1925(b). In her statement,

Hendrickes raised (1) a challenge to the sufficiency of the evidence to support

first degree murder, alleging the evidence supported a heat of passion

defense, and (2) the constitutionality of her sentence, alleging that a life

sentence without the possibility of parole violates the Pennsylvania

Constitution’s prohibition against cruel punishments by presuming an offender

is incapable of rehabilitation.

As stated above, defense counsel has filed a Motion to Withdraw and an

Anders brief. We must examine the request to withdraw before we assess the

Anders brief. Commonwealth v. Redmond, 273 A.3d 1247, 1252

(Pa.Super., Apr. 21, 2022). The application to withdraw must state that, “after

making a conscientious examination of the record, counsel has determined

that the appeal would be frivolous.” Id. (quoting Commonwealth v.

Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en banc)). Counsel must

also advise the defendant that she “has the right to retain private counsel or

raise additional arguments that [she] deems worthy of the court’s attention.”

Id. (quoting Cartrette, 83 A.3d at 1032).

Finally, counsel must provide the defendant and this Court with an

Anders brief, which must:

(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous.

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Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Id. (quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)).

Counsel’s Motion states that he has examined the record and concluded

that the appeal is frivolous. In the Anders brief, counsel explains his

conclusions that the appeal is frivolous and that a sentence of life without the

possibility of parole does not violate the Pennsylvania Constitutions’

prohibition on cruel punishment. He includes ample citation to relevant

authority and the facts of record. In his letter to Hendrickes, counsel informed

her of her right to obtain new counsel or raise any issues before this Court in

response to his assertion of frivolousness. Counsel has met all procedural and

briefing requirements. See id. We now turn to our own consideration of the

case.

Regarding the sufficiency of the evidence, counsel in the Anders brief

explains that here, the jury was presented with two versions of events. In the

Commonwealth’s case, an eyewitness testified that the victim got out of the

car and Hendrickes turned vehicle towards him and ran him over. Police

officers at the scene testified that Hendrickes was cool, calm, and collected.

In contrast, according to Hendrickes’ testimony, there was a physical

altercation in the car during which the victim threatened to cut her with a box

cutter, and when he got out of the car, she ran him over without thinking.

Counsel explains that the jury was permitted to believe the Commonwealth’s

witness and not Hendrickes. He further points out that a heat-of-passion

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defense, seeking a voluntary manslaughter verdict, was unavailable because

the altercation had ended, the victim had gotten out of the car and was

walking away when struck, and Hendrickes had time to cool off. See

Commonwealth v. Sanchez, 82 A.3d 943, 979-80 (Pa. 2013). We agree

that there is no basis in law or fact on which to challenge the verdict here.

Hendrickes’ sentencing issue is also frivolous. The legislature has

mandated that a court shall sentence an adult convicted of first-degree murder

to death or life imprisonment without parole. See 18 Pa.C.S.A. § 1102(a)(1).

A mandatory sentence of life without parole, when imposed on an adult

defendant, does not violate the Eighth Amendment on the basis that it

precludes consideration of mitigating circumstances. See Commonwealth v.

Yount, 615 A.2d 1316, 1321 (Pa.Super. 1992); see also Commonwealth

v. Waters, 483 A.2d 855, 861 (Pa.Super. 1984) (“A mandatory life sentence,

as established by the legislature, is clearly not cruel and unusual punishment

for the crime of first-degree murder”). The Pennsylvania Constitution is

coextensive with the federal Constitution on the point of cruel and unusual

punishment. See Commonwealth v. Yasipour, 957 A.2d 734, 743

(Pa.Super. 2008). Therefore, the mandatory sentence also does not violate

the Pennsylvania Constitution.

Hendrickes has not responded to counsel’s Anders brief and withdrawal

motion. Our independent review discloses no non-frivolous issues that would

require an appeal. We therefore grant counsel’s Motion to Withdraw and affirm

the judgment of sentence.

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Judgment of sentence affirmed. Motion to Withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/15/2022

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