Commonwealth v. Natividad

• Decision Date: 23 January 2019
• Docket Number: No. 743 CAP,743 CAP
• Citation: 200 A.3d 11
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Ricardo NATIVIDAD, Appellant
• Court: Pennsylvania Supreme Court

200 A.3d 11

COMMONWEALTH of Pennsylvania, Appellee

v.Ricardo NATIVIDAD, Appellant

No. 743 CAP

Supreme Court of Pennsylvania.

Submitted: July 19, 2018

Decided: January 23, 2019

OPINION

JUSTICE DOUGHERTY

This is a direct capital appeal from an order dismissing a petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546, following an evidentiary hearing limited to one issue.¹ Appellant Ricardo Natividad presents the Court with multiple challenges pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (prosecution must disclose evidence favorable to the accused that is material either to guilt or punishment), none of which afford him relief. We therefore affirm the order dismissing appellant's petition.

I. Background

We previously set forth the underlying facts in our opinion affirming the judgment of sentence. Commonwealth v. Natividad , 565 Pa. 348, 773 A.2d 167, 171-73 (2001) ( Natividad I ) (Opinion Announcing the Judgment of the Court), cert. denied , 535 U.S. 1099, 122 S.Ct. 2300, 152 L.Ed.2d 1056 (2002). As these facts are directly relevant to the Brady claims raised in this appeal, we recite them again at some length:

The evidence presented at trial established appellant's involvement in certain activities beginning at 2:00 a.m. on November 9, 1996 and continuing through to approximately 11:00 p.m., November 9, 1996. About 2:00 a.m. on November 9, 1996, Michael Havens stopped to get a sandwich at Philly's Famous Cheesesteaks at the intersection of Island and Elmwood Avenues in Philadelphia. Upon returning to his car with the sandwich, Mr. Havens was approached by two men. Mr. Havens'[s] car was a dark blue Lincoln that he recently had purchased. As Mr. Havens was entering the combination to unlock the front driver's door of the Lincoln, appellant interrupted Mr. Havens by pointing a stainless steel revolver with rubber grips at him. Another man, acting in concert with appellant, approached Mr. Havens at the same time, standing behind him while appellant faced him with the gun. Mr. Havens gave his wallet and car keys to appellant. Appellant ordered Mr. Havens into the car. When Mr. Havens hesitated, appellant threatened to kill him in the parking lot if he refused to get into the car.

Mr. Havens sat in the back seat of the car. Appellant sat in the front seat of the car on the passenger side. Appellant sat facing Mr. Havens, with the gun aimed at Mr. Havens throughout the time they were in the car. Appellant's accomplice drove the vehicle. Over the next fifteen to twenty minutes, appellant repeatedly threatened to shoot Mr. Havens while demanding more money from him. Mr. Havens gave appellant and his accomplice the cash from his pocket and begged to be released from the vehicle. Appellant requested Mr. Havens'[s] money access card and that Mr. Havens access the account to get them additional funds. Mr. Havens responded that there was no money in the account as he had just paid bills. Appellant continued to threaten Mr. Havens with the firearm. Finally, the men pulled the car to the side of the road. Mr. Havens was ordered out of the car and told to prepare to die by appellant. Appellant directed Mr. Havens to turn his back and remain standing. While Mr. Havens complied, appellant fled. Upon realizing that he was alone, Mr. Havens walked to a nearby store, called for assistance and reported the incident to police.

At approximately 7:00 p.m. on the evening of November 9, 1996, appellant, driving a blue Lincoln, met his friend, Byron Price, near 60th and Catherine Streets in Philadelphia. Mr. Price testified that this was the first time he had seen appellant in possession of a dark blue Lincoln. The two men planned to spend the evening together watching a boxing match. Mr. Price sat in the passenger seat of the Lincoln; appellant drove. Appellant pulled the car into an EXXON gasoline station at the corner of 60th and [Vine] Streets. Appellant told Mr. Price to wait. While sitting in the car, Mr. Price heard a gunshot. Appellant ran back to the car with a chrome revolver in his hand. Mr. Price noticed that a man he had formerly observed standing by a car in the gas station was now lying on the ground. Dropping the gun in his lap, appellant quickly made a U-turn out of the EXXON station and sped away on 60th Street. Mr. Price asked appellant why he shot the man. Appellant replied, "he drew on me."

Mr. and Mrs. Johnson had been leaving their home across the street from the EXXON station at the time of the shooting. They were unable to identify appellant; however, they testified that the shooter left the EXXON station in a dark Lincoln. They each, independently, testified to the following observation: the victim raised his hands in the air and then fell backwards at the same time that a gunshot was heard. The shooter was wearing a lumberjack style jacket at the time of the incident. After the gunshot, the shooter jumped into the driver's side of a dark Lincoln and sped away on 60th Street.

On November 11, 1996, Philadelphia police recovered a dark blue Lincoln that had been abandoned and set on fire. From the trunk of the car, the police recovered a lumberjack style jacket. Mr. Havens identified the burnt Lincoln as the car appellant had stolen from him at gunpoint on the morning of November 9, 1996. Mr. Havens also identified the jacket recovered from the trunk of the car as his own jacket that he had left in the car at the time of the robbery.

The day after the murder, appellant made statements to several of his acquaintances taking credit for having shot the man at the EXXON station. Several weeks after the incident, appellant approached his friend Keith Smith while Mr. Smith was helping Carl Harris wash Mr. Harris's car. Mr. Harris testified that he observed Mr. Smith and appellant engage in a conversation, out of his hearing, and then walk around the corner from where Mr. Harris was standing. When Mr. Smith returned after parting from appellant, Mr. Smith had in his possession a chrome .357–Magnum firearm. Sometime in December of 1996, Mr. Smith gave a .357 revolver to his attorney, Mr. Spina. Attorney Spina immediately notified Philadelphia homicide detectives that he had the gun in his possession. The homicide detectives recovered the revolver from Mr. Spina's office and turned it over to the Philadelphia crime lab for testing.

Based on information received in their investigation, the police obtained an arrest warrant for appellant in December of 1996. However, it was not until March 17, 1997 that appellant was apprehended. Following appellant's arrest, Mr. Havens, the victim of the robbery of the Lincoln, came to the police station to view a photographic array. Upon viewing the array, Mr. Havens positively identified a photograph of appellant.

The results of forensic and pathology reports revealed that Mr. Campbell had been shot in the head at a distance of at least two feet causing his immediate death. The fatal wound

was consistent with the type of injury caused by a .357 Magnum firearm. The .357 Magnum obtained by police from the office of Mr. Spina had been fired prior to being handed over to the police. Mr. Havens identified the gun recovered from Mr. Spina's office as identical to the gun held on him by appellant during the robbery of his motor vehicle. Mr. Price identified the gun appellant possessed after shooting Mr. Campbell as similar in appearance to the gun Mr. Spina delivered to the Philadelphia police.

Id. (citations to trial transcripts omitted).

Appellant was charged in separate indictments for the robbery of Michael Havens and the murder of Robert Campbell. The indictments were consolidated for trial. On November 10, 1997, a jury convicted appellant of first-degree murder, carrying a firearm on a public street, two counts of possession of an instrument of crime, two counts of robbery, one count of robbery of a motor vehicle, kidnapping, and criminal conspiracy.² At the penalty phase, the jury returned a verdict of death after finding the aggravating circumstances — killing while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), and a significant history of violent felony convictions, 42 Pa.C.S. § 9711(d)(9) — outweighed the sole mitigating factor, appellant's life history, 42 Pa.C.S. § 9711(e)(8). After the trial court denied appellant's post-verdict motions, it imposed a sentence of death for the first-degree murder conviction, and imposed additional sentences for the other charges to run concurrent to the sentence of death.

On automatic direct appeal pursuant to 42 Pa.C.S. §§ 722(4) and 9711(h)(1), this Court rejected appellant's five claims of trial court error in an Opinion Announcing the Judgment of the Court. Natividad I , 773 A.2d at 181. Thereafter, on November 25, 2002, appellant filed a first pro se PCRA petition. Counsel was appointed and filed an amended petition, raising twelve claims of ineffective assistance of trial counsel, trial court error, and prosecutorial misconduct. Following a two-day evidentiary hearing limited to appellant's allegations of ineffective assistance of penalty-phase counsel, the PCRA court denied the petition. This Court affirmed the order denying PCRA relief on December 27, 2007. Commonwealth v. Natividad , 595 Pa. 188, 938 A.2d 310 (2007) ( Natividad II ).

Appellant filed a second pro se PCRA petition on March 11, 2008, challenging PCRA counsel's stewardship in handling his first PCRA petition. On November 14, 2011, the PCRA court dismissed the second petition as untimely. Appellant did not seek further review of that order.

On June 27, 2008, appellant, now represented by the Federal Community Defender Office (FCDO), filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. Natividad v. Beard , No. 08-cv-0449 (E.D. Pa.). As part of that litigation, appellant sought discovery from the Commonwealth. Following informal negotiations...