Com. v. Coit, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID COIT :
:
Appellant : No. 561 EDA 2017
Appeal from the PCRA Order Entered January 30, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005384-2010
BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 24, 2018
Appellant David Coit appeals from the order entered dismissing his first
petition for relief filed under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. § 9541-9546. We affirm.
Coit and his co-defendant, Christina Walton, were tried without a jury in
2011. Ronald Hernandez testified that Coit and Walton lured him to a sandwich
shop, where they beat him. Hernandez suffered serious injuries, including a
stab wound. Coit was convicted of one count of aggravated assault and one
count of simple assault.1 Walton was acquitted of all charges. The court
sentenced Coit to an aggregate of seven to 14 years in prison, to be followed
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a)(1) and 2701(a)(1), respectively.
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by three years of probation.2 Coit filed a direct appeal, and we affirmed. See
Commonwealth v. Coit, No. 1936 EDA 2011, unpublished memorandum at
11-12 (Pa.Super. filed March 12, 2013). The Supreme Court denied Coit’s
Petition for Allowance of Appeal in August 2013. See Commonwealth v.
Coit, 74 A.3d 125 (Pa. 2013).
Coit filed a timely pro se PCRA Petition on October 8, 2014. The PCRA
court appointed counsel, who filed an Amended Petition, a Second
Supplemental Petition, and a Third Supplemental Petition.3 The PCRA court
dismissed the Petition without a hearing on January 30, 2017.4 Coit filed a
timely notice of appeal on February 7, 2017, and raises the following issues:
I. Did the [PCRA] court err in denying [Coit] an evidentiary
hearing on the issue of evidence that was not available at trial that
would have proved [Coit innocent] of the offenses?
II. Did the [PCRA] court err in denying [Coit] an evidentiary
hearing on trial defense counsel’s vitiating [Coit]’s constitutional
right to testify in his own defense when [Coit] raised a material
issue of fact concerning this issue?
III. Did the [PCRA] court err in denying [Coit] an evidentiary
hearing on trial counsel’s ineffectiveness for failing to secure an
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2 The charge of simple assault merged with the charge of aggravated assault
for sentencing purposes.
3 Coit filed a second PCRA petition, pro se, on July 7, 2015, arguing that his
mandatory minimum sentence was unconstitutional. It does not appear that
the PCRA court took any action on this second pro se petition, which was filed
after Coit had been appointed counsel.
4The PCRA court had issued a notice of its intent to dismiss the Petition on
December 2, 2016, pursuant to Pa.R.Crim.P. 907. Coit did not respond to the
Rule 907 notice.
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exculpatory store surveillance video before the video was
inadvertently lost by the Commonwealth when [Coit] raised a
material issue of fact concerning this issue?
IV. Did the [PCRA] court err in denying [Coit] an evidentiary
hearing for trial defense counsel’s ineffectiveness in stipulating to
the fact that the store surveillance of the video [o]f the incident
would not be brought up at trial when it was the Commonwealth
that lost the evidence and this loss of evidence by the
Commonwealth raises an inference that the video would have
been unfavorable evidence for the Commonwealth?
Coit’s Br. at 2.
“[I]n reviewing the propriety of an order granting or denying PCRA relief,
this Court is limited to ascertaining whether the evidence supports the
determination of the PCRA court and whether the ruling is free of legal error.”
Commonwealth v. Andrews, 158 A.3d 1260, 1262-63 (Pa.Super. 2017). A
PCRA petitioner is entitled to an evidentiary hearing where the petition raises
an issue of material fact, which, if resolved in the petitioner’s favor, would
justify relief. Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).
I. After-Discovered Evidence
In his first issue, Coit argues that the PCRA court erred in denying him
an evidentiary hearing to determine whether the testimony of Christina
Walton, his co-defendant, qualified as after-discovered evidence under 42
Pa.C.S.A. § 9543(a)(2)(vi). Coit attached to his Third Supplemental Petition
what appears to be the transcription, hand-written by Coit’s private
investigator, of a conversation that took place a few weeks before the Third
Supplemental Petition was filed. During that conversation, Walton allegedly
told the private investigator that Hernandez began the assault and that she
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hit him in self-defense. Coit then allegedly came to her aid by stepping
between Walton and Hernandez and separating them. Walton allegedly told
the private investigator that she “blacked out” during the fight, and did not
see Coit hit or stab Hernandez. Coit claims that the PCRA court erred in
denying him an evidentiary hearing, as it would have allowed the PCRA court
to hear Walton’s testimony and evaluate her credibility.5
A petitioner may qualify for relief under Section 9543(a)(2)(vi) of the
PCRA is if he pleads and proves by a preponderance of the evidence that his
conviction resulted from “[t]he unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would have changed
the outcome of the trial if it had been introduced.” 42 Pa.C.S.A. §
9543(a)(2)(vi). To obtain relief under this section, the petitioner must
demonstrate that the “after-discovered evidence”:
(1) could not have been obtained 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 to impeach
the credibility of a witness; and (4) would likely result in a different
verdict if a new trial were granted.
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5 Coit also argues that Walton’s testimony was unavailable at the time of trial,
and could not have been produced through the exercise of due diligence at
that time, because Walton asserted her right to remain silent. See N.T.,
3/21/11, at 152. While it does not appear that the PCRA court addressed this
particular contention, we note that “[i]n Pennsylvania, if the testimony of a
witness who previously invoked the Fifth Amendment becomes available after
the verdict, that testimony constitutes after-discovered evidence.”
Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa.Super. 2010).
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Commonwealth v. Small, ---A.3d----, 2018 WL 3453769, at *9 (Pa. July
18, 2018). The evidence must also be producible and admissible. Id. A
petitioner must prove each element in order to receive a new trial. Id.
In regards to whether a previously unavailable witness’s testimony is
likely to change the outcome at a new trial, “a court should consider the
integrity of the alleged after-discovered evidence, the motive of those offering
the evidence, and the overall strength of the evidence supporting the
conviction.” Padillas, 997 A.2d at 365. Where newly available testimony is
not exculpatory, it does not qualify for relief under the PCRA. Commonwealth
v. Bond, 819 A.2d 33, 49 (Pa. 2002). In Commonwealth v. Bond, the
defendant’s co-defendant did not testify at their joint trial. Id. The co-
defendant’s pre-trial statement to police, which implicated the defendant, was
not admitted as evidence. Id. at 49-50. After trial, the co-defendant signed
an affidavit recanting his former statement and stating that he has no
knowledge regarding the defendant’s involvement in the crime. Id. The
defendant filed a PCRA petition claiming that the recantation statement
constituted after-discovered evidence under Section 9543(a)(2)(vi). 6 Id. The
Supreme Court affirmed the PCRA court’s denial of relief, as the affidavit
professing no knowledge of the crime was not exculpatory, and, because the
co-defendant’s pre-trial statement had not been admitted as evidence at trial,
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6In Bond, the PCRA court held an evidentiary hearing, but the defendant did
not call the co-defendant to testify. Bond, 819 A.2d at 49.
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it had not contributed to the evidence establishing the defendant’s guilt. Id.
at 50.7
Here, the PCRA court reasoned that Walton’s statement did not
constitute after-discovered evidence because her testimony would be unlikely
to change the outcome of the trial. See PCRA Court Opinion, filed June 28,
2017, at 11. The court explained that “[Walton] alleges that she ‘blacked out’
shortly after the altercation began, and only remembers seeing [Hernandez]
lying on the floor when she regained consciousness. Therefore, it is entirely
plausible that [Coit] struck and/or stabbed [Hernandez] during that time.” 8
We agree with the PCRA court’s assessment. Although Walton’s
statement to the private investigator indicates that Hernandez was the
aggressor, it also states that Walton did not see the entirety of the fight
because she “blacked out.” Her statement does not contradict the other
evidence presented at trial supporting that Coit stabbed Hernandez, and
therefore does not exculpate Coit. Bond, 819 A.2d at 50.
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7 The Bond Court also acknowledged that the co-defendant’s recantation
undermined his credibility. Bond, 819 A.2d at 50.
8 The PCRA court’s opinion also stated that Walton’s testimony cannot
constitute after-discovered evidence because the factual content of Walton’s
eye-witness account was known to Coit at the time of trial. See PCRA Ct. Op.
at 11. However, the section of the PCRA invoked by Coit depends on the new
availability or obtainability of evidence, and not the new discovery of facts.
See 42 Pa.C.S.A. § 9543(a)(2)(vi). We caution that the “after-discovered
evidence” section should not be conflated with the “newly-discovered facts”
section of the PCRA, which, when its requirements are met, provides only an
exception to default one-year filing timing requirement. See Commonwealth
v. Cox, 146 A.3d 221, 228-30 (Pa. 2016).
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We add, although not raised by the Commonwealth, that Coit has not
alleged that Walton would be willing to testify at a new trial, or even at a PCRA
hearing. Nor does the transcription of Walton’s statement made by Coit’s
private investigator contain any such indication. Coit has therefore failed to
carry his burden to plead that the proposed testimony is producible and
admissible. Small, ---A.3d----, 2018 WL 3453769, at *9.
We therefore hold that the PCRA court did not err in concluding that
Walton’s testimony was unlikely to change the outcome of a new trial, and
denying relief on that basis.
II. Ineffective Assistance - Right to Testify
In his second issue, Coit argues that the PCRA court erred in denying
his request for an evidentiary hearing to determine whether his counsel
provided ineffective assistance when advising Coit not to testify at trial.
According to Coit, his counsel advised him not to testify by saying, “[Y]ou
already won, don’t F--- it up,” and the argument between Coit and his attorney
on this point “was so loud that the trial court had to call a recess and tell [Coit]
and trial counsel to relax.” Coit’s Br. at 9. Coit alleged that he “was emotionally
and mentally inc[apaci]tated from the shock of embarrassment that his
defense trial counsel would raise her voice and yell at [him] in f[ro]nt of the
trial judge, in front of the A.D.A. and others in the court room[.]” Pro Se PCRA
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Pet., 10/8/14, at 38.9 Coit argues that his attorney bullied him into not
testifying, which rendered his decision to remain silent involuntary; his
attorney had no reasonable basis for bullying Coit when advising him not to
testify; and he was prejudiced because he was denied a constitutional right
and an opportunity to prove his innocence. Coit argues that counsel’s
ineffectiveness is a matter of fact which required an evidentiary hearing.
The PCRA court reviewed the trial colloquy between Coit and counsel10
regarding his right to testify, and renewed its record finding that Coit’s waiver
of his right to testify was intelligent, knowing, and voluntary. See PCRA Ct.
Op. at 6-7.
A petitioner is eligible for relief under the PCRA when he pleads and
proves by a preponderance of the evidence that his conviction resulted from
ineffective assistance of counsel. See 42 Pa.C.S.A. § 9543(a)(2)(ii). A PCRA
petitioner will only prevail on a claim that trial counsel was ineffective through
pleading and proving each of the following: “(1) the underlying legal claim is
of arguable merit; (2) counsel’s action or inaction lacked any objectively
reasonable basis designed to effectuate his client’s interest; and (3) prejudice,
to the effect that there was a reasonable probability of a different outcome if
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9 The allegations in Coit’s pro se Petition were incorporated into each
counseled Amended Petition thereafter. See Amended Pet., 3/22/16, at ¶ 3;
Second Supp. Amended Pet., 5/10/16, at ¶ 3; Third Suppl. Amended Pet.,
6/20/16, at ¶ 3.
10 The colloquy was given to both Coit and Walton by Walton’s counsel.
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not for counsel’s error.” Commonwealth v. Grove, 170 A.3d 1127, 1138
(Pa.Super. 2017). A failure to plead or prove any prong will defeat an
ineffectiveness claim. Id. (quoting Commonwealth v. Simpson, 66 A.3d
253, 260 (Pa. 2013)).
“[W]here a defendant voluntarily waives his right to testify after a
colloquy, he generally cannot argue that trial counsel was ineffective in failing
to call him to the stand.” Commonwealth v. Rigg, 84 A.3d 1080, 1086
(Pa.Super. 2014). When an ineffectiveness claim is based on counsel’s advice
to the defendant regarding his constitutional right to testify at trial, the
defendant “must demonstrate either that counsel interfered with his right to
testify, or that counsel gave specific advice so unreasonable as to vitiate a
knowing and intelligent decision to testify on his own behalf.”
Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa.Super. 2013) (quoting
Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000)).
We agree with the PCRA court that the record reflects that Coit was
advised of his absolute right to testify, acknowledged that no one could
prevent him from testifying, agreed that it was his “firm decision” not to
testify, and stated that no one forced or threatened him not to testify. See
N.T. 149-53. Moreover, the factual allegations made by Coit—that he was
verbally reprimanded in the courtroom, and was advised not to testify because
he had “already won” his case—do not demonstrate either an interference with
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Coit’s decision not to testify, or constitute advice so unreasonable as to render
his decision involuntary, especially in light of the colloquy.
As the record supports the PCRA court’s finding that Coit’s decision not
to testify was knowing, intelligent, and voluntary, and Coit raised no issue of
material fact which necessitated an evidentiary hearing, we affirm the PCRA
court’s finding that his counsel did not provide ineffective assistance of counsel
as it pertains to this issue and affirm the court’s denial of relief.
III. Ineffective Assistance – Failure to Obtain Evidence
In his third issue, Coit argues that the PCRA court erred in denying him
an evidentiary hearing to prove that his trial counsel was ineffective for failing
to secure a copy of the surveillance video of the incident, which Coit claims
would have proven that he was acting in self-defense. Coit asserts that the
Commonwealth inadvertently lost the video, and states, “The Commonwealth
has admitted in filings before the Trial/PCRA Court that through inadvertence
it lost the tape prior to trial.” Coit’s Br. at 12.11 Coit argues that his counsel
had no reasonable basis “not to secure the surveillance tape of the incident as
soon as possible,” and that Coit was prejudiced by counsel’s failure to secure
the video because it would have established his innocence. Coit’s Br. at 12.
Coit framed this issue differently before the PCRA court. According to
Coit’s pro se Petition, the prosecutor brought up the video at the preliminary
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11 Coit does not specify in which filings the Commonwealth made these
purported admissions, and none appear in the certified record.
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hearing on April 27, 2010, and the video was also discussed in police reports
and other pre-trial documents, but his counsel did not request or subpoena
the video, or file a motion to compel the Commonwealth to produce it, in the
year leading to trial. See Pro Se PCRA Pet., 10/8/14, at 30-31, 39-45. Coit
alleged that he asked counsel where the video was, and counsel responded
that the Commonwealth had informed her that the video “had some minor
damage or some static or something,” and so it was not entered into evidence
at trial. Id.12
Given the foregoing, Coit’s argument on appeal that his counsel was
ineffective for failing to secure the video before it was “lost” by the
Commonwealth is waived for Coit’s failure to raise it before the PCRA court.
See Pa.R.A.P. 302(a). Regarding Coit’s argument that counsel was ineffective
for failing to secure the video prior to it being damaged, as he pled to the
PCRA court in his original Petition, Coit presents no authority to support the
idea that when evidence in the Commonwealth’s possession is damaged or
destroyed, defense counsel should be found ineffective for failing to secure
the evidence prior to its loss. Coit does not include even minimal discussion
regarding counsel’s duties to secure evidence. We decline to act as Coit’s
counsel and make this argument for him, and we therefore affirm the PCRA
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12The allegations in Coit’s pro se Petition were incorporated to each counseled
Amended Petition thereafter. See note 9, supra. Coit’s counseled Amended
Petitions did not separately reiterate this issue.
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court’s denial of relief on this issue. See Pa.R.A.P. 2119(a) (each portion of
the argument section of brief shall include “such discussion and citation of
authorities as are deemed pertinent”); Commonwealth v. Johnson, 985
A.2d 915, 924 (Pa. 2009) (“[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived”).
IV. Ineffective Assistance – Brady Violation
In his fourth and final issue, Coit argues that his trial counsel was
ineffective for stipulating that the surveillance video—which Coit now claims
had been lost by the Commonwealth—would not be mentioned during trial,
and for failing to request an instruction informing the fact-finder that it could
infer that the video would have been unfavorable to the Commonwealth.
We find this claim to be waived as well, as Coit’s argument differs from
what he presented to the PCRA court. In his pro se Petition, Coit argued a
somewhat similar issue: that counsel was ineffective for failing to raise a
Brady13 violation when the Commonwealth did not provide defense counsel
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13 Brady v. Maryland, 373 U.S. 83 (1963), held that the prosecution violates
the 14th Amendment when it fails to turn over any exculpatory evidence,
irrespective of whether it acted in good or bad faith. It has since been
established that where the Commonwealth destroys merely potentially useful,
rather than exculpatory, evidence before the defense has an opportunity to
examine it, the Commonwealth does not violate due process unless acting in
bad faith. Commonwealth v. Snyder, 963 A.2d 396, 404 (Pa. 2009).
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with a copy of the video.14 See Pro se Pet. at 32-33, 43-44. In contrast, in his
Second Supplemental Amended Petition, Coit raised a Brady violation by the
Commonwealth, but did not allege ineffectiveness of counsel in relation to it.
Now on appeal, Coit does not argue that his counsel should have raised a
Brady violation, or suggest whether the Commonwealth acted in bad faith.
Instead, Coit argues that counsel should have requested jury instructions, an
argument which he did not present to the PCRA court. Thus, it is waived. See
Pa.R.A.P. 302(a).
Were this issue not waived, we would find it meritless. Although Coit
provides no pertinent discussion on when jury instructions are appropriate,
according to Pennsylvania Suggested Standard Criminal Jury Instruction
3.21(B)(2), “the jury is allowed to draw a common-sense inference that [an]
item would have been evidence unfavorable to [a] party” when “there is no
satisfactory explanation for [that] party’s failure to produce an item,” and (1)
“the item is available to that party and not the other”; (2) “it appears the item
contains or shows special information material to the issue”; and (3) “the item
would not be merely cumulative evidence.” Pa.S.S.C.J.I. 3.21(B)(2)15; see
also Commonwealth v. Cristina, 391 A.2d 1307, 1312 (Pa. 1978) (applying
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The allegations in Coit’s pro se Petition were incorporated to each counseled
14
Amended Petition thereafter. See note 9, supra.
15Although the standard jury instructions are not controlling, we review them
when the trial court relies upon them. Commonwealth v. Tilley, 595 A.2d
575, 583 (Pa. 1991).
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similar standard for missing witness instructions to missing evidence issue).
In his pro se Petition, Coit alleged that the video was damaged, and in his
appellate brief, he alleges that it was lost—Coit did not assert that the video
was available to the Commonwealth at the time of trial, as required by the
first prong of the above test. We therefore hold that the PCRA court did not
err in denying Coit relief on this issue.
For all of the foregoing reasons, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/18
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