Com. v. Coleman, K. ( 2023 )

J-S23024-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEENAN COLEMAN :
:
Appellant : No. 2326 EDA 2022
Appeal from the PCRA Order Entered August 26, 2022,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0002793-2011.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEENAN COLEMAN :
:
Appellant : No. 2328 EDA 2022
Appeal from the PCRA Order Entered August 26, 2022,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002794-2011.
J-S23024-23
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEENAN COLEMAN :
:
Appellant : No. 2329 EDA 2022
Appeal from the PCRA Order Entered August 26, 2022,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-XX-XXXXXXX-2011.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 10, 2023
Keenan Coleman appeals from the order denying his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-
9546. This appeal follows this Court’s previous remand for the PCRA court to
hold an evidentiary hearing to address certain claims of ineffectiveness
identified by our Supreme Court in Commonwealth v. Coleman, 230 A.2d
1042 (Pa. 2020). We affirm.
In Coleman, our Supreme Court summarized the pertinent facts and
procedural history as follows:
. . . In the early morning hours of April 12, 2010, Tobias Berry
(‘Victim”) was shot and killed on the streets of West Philadelphia.
During the investigation of Victim’s murder, police, including
Detective John Keen, took statements from Wakeeyah Powell and
Hanif Hall, both of whom identified [Coleman] as the person that
shot Victim. [Coleman] eventually was arrested and charged with
first-degree murder and related offenses.
At [Coleman’s] trial, the Commonwealth called several
witnesses, including Powell and Hall, but they recanted their
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previous statements identifying [Coleman] as the shooter. More
specifically, Powell claimed that police coerced her into giving her
initial statement by contending that the officers said they had
statements from other persons but lost their “original witness.”
Powell also denied witnessing the shooting, stating instead that
she heard about it from a friend. Because Powell’s trial testimony
was inconsistent with her statement to police, the Commonwealth
utilized her previous statement to examine her. That statement
included a reference to [Coleman] as a drug dealer.
During Hall’s trial testimony, he indicated that he felt
induced by the police to give a statement implicating [Coleman],
as detectives informed him that they knew that [Coleman] and his
codefendant committed the killing. In addition, he denied having
any direct knowledge of the shooting, asserting that he only
learned about it from “word on the street.” The prosecutor
examined Hall by utilizing his previous statement to police,
wherein Hall asserted that [Coleman] “liked to shoot people” and
that [Coleman] carried “all kinds” of guns. Of further note,
Detective Keen later read to the jury Hall’s previous statement to
police. That statement, inter alia, referenced a person named
Tanisha, who allegedly told Hall that [Coleman] shot Victim.
***
The jury ultimately found [Coleman] guilty of the charged
offenses. For [his] first-degree murder conviction, the trial court
sentenced [Coleman] to life in prison without the possibility of
parole. Following an unsuccessful direct appeal of his judgment
of sentence, [Coleman] filed [a counseled] PCRA petition[.]
Coleman, 230 A.3d at 1044-45 (footnotes and citation to record omitted).
In his PCRA petition, Coleman asserted that trial counsel was ineffective
in five specific instances, when counsel failed: 1) to object to the trial court’s
exclusion of the public during voir dire; 2) to offer a defense to the witness
intimidation charge; 3) to object to extensive inadmissible hearsay at trial; 4)
to object to admissible bad acts/character evidence; and 5) to object to errors
in the prosecutor’s closing argument. PCRA Petition, 9/30/15, 2-4.
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Thereafter, the Commonwealth filed a motion to dismiss Coleman’s
petition, and Coleman filed a reply. On September 29, 2017, the PCRA court
issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Coleman’s petition
without a hearing. Coleman did not file a response. By order entered
December 1, 2017, the PCRA Court dismissed Coleman’s petition.
Coleman appealed to this Court, and we affirmed the denial of post-
conviction relief on March 11, 2019. Commonwealth v. Coleman, 215 A.3d
631 (Pa. Super. 2019)(non-precedential decision). Thereafter, our Supreme
Court granted Coleman’s petition for allowance of appeal.
On May 19, 2020, the high court affirmed this Court’s judgment in part,
vacated in part, and remanded to this Court for further consideration of
Coleman’s claims regarding the ineffectiveness of counsel. Specifically, as to
the admission of hearsay testimony, our Supreme Court reasoned:
[I]n his PCRA petition, [Coleman] averred that trial counsel
was ineffective for failing to object to several statements made by
Powell and Hall on the ground that the statements constituted
inadmissible hearsay. The lower courts concluded that these
claims lack arguable merit because the complained-of testimony
was not hearsay, as it was not admitted for the truth of the
matters asserted. Instead, the courts concluded, these
statements were admitted to explain why Powell and Hall were
recanting their previous statements to police and to allow the jury
to better assess their credibility. [Coleman] contends that this
conclusion is erroneous because the trial court did not instruct the
jury to consider the testimony of Powell and Hall for the limited
purposes of understanding the witnesses’ reasons for recanting
their previous statements and assessing their credibility.
***
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We have no hesitation in agreeing with [Coleman’s]
assignment of error regarding the manner in which the lower
courts addressed the alleged hearsay testimony of Powell and
Hall. Indeed, it is well-settled that evidence which is admitted for
a limited purpose must be accompanied by a limiting instruction
to focus the jury’s consideration of the evidence to its appropriate
purpose. Here, the trial court did not instruct the jury to consider
the alleged hearsay testimony of Powell and Hall for the limited
purposes articulated by the lower courts. Thus, contrary to the
conclusions of those courts, the jury’s consideration of the
testimony of Powell and Hall was unrestricted.
Coleman, 230 A.3d at 1047-48 (citations omitted).
Given this analysis the high court reached the following conclusion and
disposition:
For these reasons, we find that the Superior Court erred in
the manner in which it disposed of the arguable merit prong of
[Coleman’s] claims that his trial counsel was ineffective for failing
to object to the following alleged hearsay testimony presented at
his trial: (1) Powell’s account that police told her that they had
statements from other persons but lost their original witness; (2)
Powell’s testimony that a friend told her that [Coleman] and his
codefendant committed the murder in question; (3) Hall’s
declaration that detectives informed him that they knew “them
two did it;” and (4) Hall’s testimony that he knew [Coleman] and
his codefendant and that the rumor on the street was that they
committed the murder at issue in this case. Accordingly, we
vacate in part the Superior Court’s judgment and remand to that
court to reconsider, in a manner consistent with this Opinion,
[Coleman’s] contention that the PCRA court erroneously rejected
these claims of ineffective assistance of counsel.
Coleman, 230 A.3d at 1048-49.
Our Supreme Court agreed with Coleman that this Court did not directly
address one of his ineffectiveness claims, and further vacated our judgment:
[Coleman] presented the PCRA court with, inter alia, a claim
that his trial counsel was ineffective for failing to object to Powell’s
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statement that [he] was involved in dealing drugs and a claim that
counsel was ineffective for failing to object to Hall’s statements
regarding [Coleman] carrying guns and his desire to use them.
The PCRA court rejected both claims. In his Superior Court brief,
[Coleman] challenged the PCRA court’s ruling as to both of these
claims, albeit in a singular sub-issue.
Understandably, in its memorandum, the Superior Court
mentioned these two claims in tandem. Further, the court
definitively rejected [Coleman’s] claim that counsel rendered
ineffective assistance by failing to object to Powell’s drug-dealing
statement. However, the court did not directly resolve
[Coleman’s] contention that the PCRA court improperly rejected
his claim that trial counsel was ineffective for failing to object to
Hall’s statement that [Coleman] carries guns and likes to shoot
people. Consequently, we respectfully further vacate the Superior
Court’s judgment, and on remand, we instruct the Superior Court
to address [Coleman’s] claim of PCRA court error in the first
instance.
Coleman, 230 A.3d at 1049 (citations omitted).
Upon returning to this Court, we noted that the PCRA court had not held
an evidentiary hearing regarding these claims, and the fact that it did not,
prevented us from reaching the merits of Coleman’s claims. Therefore, we
vacated the denial of Coleman’s PCRA petition and “remanded the matter for
an evidentiary hearing on the remaining claims.” Commonwealth v.
Coleman, 242 A.3d 401 (Pa. Super. 2020), non-precedential decision at 3-4.
The PCRA court first listed the matter on March 12, 2021. However, the
matter was continued to May 7, 2021, due to the ongoing issues related to
the Covid-19 pandemic. On May 7, 2021, counsel indicated that they were
working to prepare a joint stipulation in lieu of an evidentiary hearing
regarding the testimony of trial counsel. After four continuances, on January
12, 2022, the parties submitted a proposed stipulation to the PCRA court for
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review. Two months later, both sides presented arguments and on May 19,
2022, following a review of the record, the PCRA court sent Coleman notice
pursuant to Pa.R.Crim.P. 907(1). The court did not receive any response to
the 907 Notice. Ultimately, on August 26, 2022, the PCRA court formally
dismissed [Coleman’s] PCRA petition.
Coleman filed timely notices of appeal. By order entered October 17,
2022, we consolidated them. Both Coleman and the PCRA court have
complied with Pa.R.A.P. 1925.
Coleman raises the following two issues on appeal:
1. Did the PCRA court err in dismissing [Coleman’s] PCRA Petition
because trial counsel was ineffective for failing to object to
inadmissible hearsay and highly prejudicial alleged statements
of [Powell] and [Hall] that stated that, inter alia, [Coleman]
“carried guns and liked to shoot people . . .” and the
ineffectiveness/prejudice/admissibility component was never
fully explored at a purported evidentiary hearing when no
witnesses were called thereby rendering the Supreme Court’s
reasons for remand unexplored and allowing the trial/PCRA
court to effectively infringe upon the province of the jury to too
[sic] a large degree by essentially adopting a guilty anyway
theory of the case?
2. Did the PCRA court err in dismissing [Coleman’s] PCRA Petition
because trial counsel was ineffective for not objecting to the
jury [sic] being excluded from access to the courtroom during
jury voir dire, a vital juncture of [Coleman’s] trial, and PCRA
counsel was ineffective and [Coleman] suffered prejudice and
structural error as a result of trial counsel and PCRA counsel’s
ineffectiveness and layered ineffectiveness respectively?
Coleman’s Brief at 4.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
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is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
In his first issue, Coleman raises a claim of trial counsel’s
ineffectiveness,1 and in his second claim he raises a layered claim of
ineffectiveness. To obtain relief under the PCRA premised on a claim that
counsel was ineffective, a petitioner must establish, by a preponderance of
the evidence, that counsel's ineffectiveness so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.
2009). “Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) counsel’s
act or omission prejudiced the petitioner. Id. at 533.
____________________________________________
1 In his supporting argument for his first issue, Coleman also challenges the
effectiveness of PCRA counsel. As this distinct claim was not raised in his
statement of the issue, we will not consider it further. See generally,
Pa.R.A.P. 2116. Nevertheless, because we affirm the PCRA court’s rejection
of Coleman’s claim of trial counsel’s ineffectiveness, any layered claim of
ineffectiveness would likewise fail. See infra.
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In making a layered claim of ineffectiveness, a PCRA petitioner “must
properly argue each prong of the three-prong ineffectiveness test for each
separate attorney.” Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa.
Super. 2012). “In determining a layered claim of ineffectiveness, the critical
inquiry is whether the first attorney that the defendant asserts was ineffective
did, in fact, render ineffective assistance of counsel.” Commonwealth v.
Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010). “If that attorney was
effective, then subsequent counsel cannot be deemed ineffective for failing to
raise the underlying issue.” Id.In support of his first issue, Coleman contends that the PCRA court erred
in concluding that his claim regarding trial counsel’s failure to object to
inadmissible hearsay evidence did not warrant relief.
The PCRA court considered each instance of alleged hearsay that our
Supreme Court identified in its 2020 opinion, cited in detail a portion of
Powell’s testimony, and concluded that a proper assessment of trial counsel’s
effectiveness in failing to object to alleged hearsay statements presented by
both Powell and Hall required a consideration of all of the evidence introduced
by the Commonwealth. The court then concluded that trial counsel had a
reasonable basis for not objecting to any of the statements because they were
made during the witnesses’ recantation:
To simply refer to [Powell] as a witness who had “gone
south” or qualify her as “hostile” does not even begin to describe
the presentation that the jury experienced at trial. Her frustration
with the prosecutor and detectives was explosive, often crude,
and unrelenting. Accordingly, the record supports trial counsel’s
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testimony[2] that it was in Coleman’s best interest that the jury
believe [Powell’s] recantation and assertions of police coercion of
her written statement and identification of Coleman. In
furtherance of this strategy, trial counsel did not raise a hearsay
objection to[:] a) [Powell’s] account that police told her that they
had statements from other persons but lost their original witness
or b) her testimony that a friend told her that Coleman and his
codefendant committed the murder in question, because
[counsel] did not want corrective elements being inserted into an
otherwise unabashed and powerful recantation by the witness.
Instead, [counsel] harnessed the vigor of [Powell’s] recantation
and highlighted precise elements of such recantation on cross-
examination. In closing, trial counsel argued to the jury that
[Powell’s written] statement was merely a piece of paper that
should not be considered, as its veracity was clouded by her drug
use and own pending criminal charges at the time it was made
and he urged the jury to accept her vehement contentions that
she didn’t see anything and was coerced by detectives. This court
has determined that [trial] counsel’s performance had a
reasonable basis and, thus, no relief is do.
With regard to [Hall], the ineffectiveness claims before this
court are counsel’s failure to make hearsay objections to [Hall’s]
declaration that detectives informed him that they knew “them
two did it” and to [Hall’s] testimony that he knew Coleman and
his codefendant and that the rumor on the street was that they
committed the murder at issue. As with the claims concerning
[Powell], these claims too must be examined in the context of all
evidence and testimony presented at trial as well as [Hall’s] own
presentation on the stand. Further, like [Powell], trial counsel was
faced with a written statement to police—which corroborated
Coleman’s bragging about killing [the victim]—that Coleman
needed to have discredited and disbelieved by the jury.
At trial, [Hall] testified on the heels of [Powell], wherein he
denied ever giving a written statement to police, denied that the
signature on the proffered statement was his, and recanted the
entire substance of the proffered statement. The at-issue
____________________________________________
2 At the March 23, 2022, argument following our remand, the PCRA court
likened the parties’ joint stipulation regarding trial counsel’s purported
testimony to a deposition in a civil matter, and further noted that a PCRA
proceeding is civil in nature. N.T., 3/23/22, at 5.
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testimony regarding the detective saying that they knew “them
two did it” and Hall’s indication that it was the rumor on the street
that Coleman and his [codefendant] had committed the murder
was presented amidst Hall’s complete rejection of the substance
of the [written] statement and complete rejection that any
statement was ever given or signed by him. As with [Powell], trial
counsel’s objective was to have the jury be persuaded to discredit
the content of the respective statements to police, as the
statements corroborated the identification of Coleman as the
person who shot [the victim] multiple times and corroborated
Coleman’s bragging about having killed [the victim].[3]
Accordingly, trial counsel did not elect to interject corrections into
otherwise recanted testimony. On cross-examination, trial
counsel reaffirmed Hall’s testimony that he wasn’t present when
[the victim] was shot, he didn’t know who killed him, and that
when he was brought to the police station he was brought in on a
detainer for his own open drug charges. This court has
determined that [trial] counsel’s performance had a reasonable
basis, and, thus, no relief is due.
PCRA Court Opinion, 2/14/23, at 11-13 (unnumbered).
Our review of the record, including Coleman’s trial transcript and the
joint stipulation, amply supports the PCRA court’s conclusions that trial
counsel had a reasonable basis for not objecting to any hearsay testimony
made by either Powell or Hall during their recantations of their written
statements to police.
Coleman’s claims to the contrary are unavailing. He presents no
substantive argument regarding any of the alleged hearsay statements
identified by our Supreme Court in its 2020 opinion and addressed by the
____________________________________________
3 At trial, another Commonwealth witness, Rashe Bellmon, testified that
Coleman bragged about the killing. See N.T., 8/29/12, at 60.
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PCRA court above.4 Instead, Coleman asserts that the manner in which the
court received trial counsel’s stipulated “testimony” prejudiced him and that
we should remand for a substantive evidentiary hearing. He cites no authority
to support his claim that the use of a joint stipulation in lieu of an evidentiary
hearing prejudiced him to a degree that a new hearing is required.
Further, Coleman makes the bare assertion that he “suffered prejudice
because there was no reasonable basis for allowing the hearsay testimony of
[Powell] and [Hall] to be admitted at trial.” Coleman’s Brief at 15. Coleman
makes this claim without acknowledging the PCRA court’s analysis cited
above. Claims of trial counsel’s ineffectiveness are not self-proving and
therefore cannot be raised in a vacuum. See generally, Commonwealth v.
Pettus, 424 A.2d 1332 (Pa. 1981).
“When evaluating ineffectiveness claims, judicial scrutiny of counsel’s
performance must be highly deferential.” Commonwealth v. Perry, 128
A.3d 1285, 1290 (Pa. Super. 2015). “Counsel will not be deemed ineffective
where the strategy employed has some reasonable basis designed to
effectuate his or her client’s interests.” Id. A finding that a chosen strategy
lacked a reasonable basis is not warranted unless it can be concluded that an
alternative not chosen offered a potential for success substantially greater
____________________________________________
4 We note that the statement to which he refers in his first issue, that “he
carried guns and liked to shoot people” was remanded by our Supreme Court
to be considered as an improper reference to prior bad acts, not hearsay. See
Coleman, supra.
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than the course actually pursued. Commonwealth v. Howard, 719 A.2d
233, 237 (Pa. 1998). Counsel's approach must be "so unreasonable that no
competent lawyer would have chosen it." Commonwealth v. Ervin, 766
A.2d 859, 862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller, 431
A.2d 233, 234 (Pa. 1981). Finally, a PCRA petitioner is not entitled to
appellate relief simply because a chosen strategy is unsuccessful.
Commonwealth v. Buksa, 655 A.2d 576, 582 (Pa. Super. 1995).
Because Coleman provides no argument to challenge the PCRA court’s
conclusion that trial counsel had a reasonable basis for not objecting to the
hearsay statements, and the record supports the trial court’s conclusions that
trial counsel acted reasonably, Coleman’s first ineffectiveness claim fails.5
In his second issue, Coleman presents a layered claim of ineffectiveness
in which he asserts trial counsel was ineffective for failing to object to the
exclusion of the public6 during jury selection, and that PCRA counsel was
ineffective for failing to “raise and preserve the issue of [Coleman] being
denied his right to a public trial.” Coleman’s Brief at 19.
____________________________________________
5 Because the PCRA court concluded that trial counsel was not ineffective for
failing to object to the hearsay testimony, we further note that there was no
need for a jury instruction as discussed in Coleman, supra.
6 Although in his issue cited above, Coleman refers to the jury being excluded
from access to the courtroom during voir dire, given his supporting argument
it is clear that he means exclusion of the public. See Coleman’s Brief at 19.
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Initially, given the limited scope of this Court’s remand, we question
whether PCRA counsel’s ineffectiveness can be challenged at this time.
Compare Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021) (holding
that a PCRA petitioner may challenge the effectiveness of PCRA counsel at his
or her first opportunity to do so, even if it is on appeal). Nevertheless, we
note that, in his 2015 PCRA petition, Coleman did raise a claim of trial counsel
ineffectiveness for failing to object to the exclusion of the public from jury
selection, which the PCRA court denied, and Coleman did not challenge the
PCRA court’s conclusion in his original appeal to this Court.
In its original opinion supporting its initial denial of Coleman’s 2015
PCRA petition, the PCRA court explained:
Coleman set forth a claim of ineffectiveness for counsel’s
failure to object to this court’s decision to close the courtroom to
the public during voir dire due to the large panel of jurors
requested and the limited space in the courtroom. Coleman’s
claim was presented in advance of the Supreme Court’s decision
in Weaver v. Massachusetts, [137 S.Ct. 1899 (2017)], wherein
the Court granted certiorari on the limited issue of “whether a
defendant must demonstrate prejudice in a case [. . .] in which a
structural error is neither preserved nor raised on direct review
but is raised later via a claim alleging ineffective assistance of
counsel, [. . .] specifically and only in the context of trial counsel’s
failure to object to the closure of the courtroom during jury
selection. On June 22, 2017, the Court ruled in the affirmative,
holding that a petition must show prejudice in a claim of
ineffectiveness based upon the trial counsel’s failure to object to
the closure of the courtroom during jury selection.
As such, this court relies on our longstanding Superior Court
precedent in Commonwealth v. Brandt, [509 A.2d 872 (Pa.
Super. 1986)], wherein the Court rejected Brandt’s
ineffectiveness claim based upon trial counsel’s failure to object
to voir dire being conducted in chambers rather than in open court
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due to space limitations. The Court reasoned that Brandt had not
demonstrated that “public voir dire would have offered a potential
for success greater than the selection process actually utilized or
that he was prejudiced in any way because his trial counsel failed
to request an alternate procedure.” In applying Brandt, as well
as Weaver, this court has determined that Coleman has failed to
establish a reasonable probability that, had jury selection been
open to the public, the verdict returned would have been different.
Accordingly, Coleman has not satisfied the requisite prejudice
prong [of the ineffectiveness test] and, thus, his claim does not
warrant relief.
PCRA Court Opinion, 12/19/17, at 4-5, (paragraph break added; footnotes
and excess capitalization omitted). Within his brief, Coleman offers nothing
to disturb the original PCRA court’s determination regarding trial counsel’s
alleged ineffectiveness. Thus, because trial counsel was not ineffective,
Coleman’s present claim of PCRA counsel’s ineffectiveness likewise fails.
Burkett, supra.Order affirmed.
Date: 10/10/2023
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