Com. v. Coulter, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANTONIO COULTER :
:
Appellant : No. 790 EDA 2021
Appeal from the Order Entered April 9, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0013151-2007
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JANUARY 4, 2022
Antonio Coulter (Appellant) appeals pro se from the order dismissing
his second petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
On September 24, 2007, Appellant shot Philadelphia Police Officer
Richard DeCoatsworth in the face. While fleeing, Appellant broke into the
home of Herbert Lee Bowers, Jr (Bowers). Bowers told Appellant to get out
and called 9-1-1; Appellant was gone by the time police arrived. This Court,
in affirming the dismissal of Appellant’s first PCRA petition, relayed the
procedural history as follows:
On May 20, 2008, Appellant pleaded guilty to attempted murder,
aggravated assault under 18 Pa.C.S.A. § 2702(a)(2), burglary,
criminal trespass, possessing a firearm on a public street in
Philadelphia, possessing a prohibited offensive weapon, and
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* Former Justice specially assigned to the Superior Court.
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resisting arrest.1 See, e.g., N.T. Guilty Plea, 5/20/10, at 8
(“[t]he second count charges you with aggravated assault. ...
The Commonwealth is proceeding under [s]ubsection (a)(2) of
Section 2702 of the Criminal Code with regard to that charge”).
On June 25, 2008, the trial court sentenced Appellant to serve a
term of 20 to 40 years in prison for the attempted murder
conviction and to serve a consecutive term of 16 to 32 years in
prison for the aggravated assault conviction. We affirmed
Appellant’s judgment of sentence on August 1, 2011.
Commonwealth v. Coulter, 32 A.3d 819 (Pa. Super. 2011)
(unpublished memorandum) at 1.
[FN]118 Pa.C.S.A. §§ 901(a), 2702(a)(2), 3502(a),
3503(a)(1)(ii), 6106(a)(1), 6108, 908, and 5104,
respectively.
On January 25, 2012, Appellant filed a timely, pro se PCRA
petition. The PCRA court appointed counsel and counsel then
filed an amended PCRA petition on Appellant’s behalf. Within the
amended petition, Appellant alleged that trial counsel was
ineffective for “not ensuring that [Appellant’s] challenge to the
discretionary aspects of sentencing was preserved by including a
[Pennsylvania Rule of Appellate Procedure] 2119[(f)] statement
in [Appellant’s] appellate brief” and that the trial court “imposed
an illegal sentence when it sentenced [Appellant] consecutively
on the charges of attempted murder and aggravated assault
because aggravated assault is a lesser included offense of
attempted murder and the crimes merge for sentencing
purposes.” Appellant’s Amended PCRA Petition, 12/24/12, at 2
(some internal capitalization omitted).
On January 7, 2014, the PCRA court provided Appellant with
notice that it intended to dismiss Appellant’s PCRA petition,
without a hearing, in 20 days. See Pa.R.Crim.P. 907(1). The
PCRA court finally dismissed Appellant’s PCRA petition on
February 7, 2014 and Appellant filed a timely notice of appeal to
this Court.
After Appellant filed his notice of appeal, the PCRA court ordered
Appellant to file and serve a concise statement of errors
complained of on appeal, pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b). Appellant complied with the
[PCRA] court’s order[.]
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Prior to submitting a brief to this Court, however, PCRA counsel
determined that the appeal had no merit. As a result, PCRA
counsel notified Appellant that he intended to withdraw from
representation and PCRA counsel filed, in this Court, both a
petition to withdraw as counsel and an accompanying “no merit”
brief pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). See Commonwealth v. Wrecks, 931 A.2d
717, 721 (Pa. Super. 2007) (to comply with Turner/Finley,
counsel must either “submit a ‘no-merit’ letter to the [PCRA]
court[ ] or [a] brief on appeal to this Court”).
Commonwealth v. Coulter, 696 EDA 2014, *2-5 (Pa. Super. Feb. 10,
2015) (unpublished memorandum) (footnote in original). As noted, we
affirmed the dismissal of Appellant’s first PCRA petition and granted
counsel’s petition to withdraw. Id. Appellant did not seek review with the
Pennsylvania Supreme Court.
On July 24, 2019, Appellant pro se filed the underlying PCRA petition.
Appellant retained private counsel, who filed an amended petition on August
17, 2020. Appellant conceded his petition was untimely, but attached an
affidavit from Bowers recanting his statement to police to support his claim
that he satisfied the newly discovered fact exception to the PCRA time-bar.
Appellant’s Brief at 9; Amended Petition for Post Conviction Relief, 8/27/20,
at 11. Appellant claims Bowers’ affidavit proves Appellant’s innocence.
On February 19, 2021, the PCRA court issued notice of intent to
dismiss pursuant to Pa.R.Crim.P. 907. Appellant did not respond. The court
dismissed the petition on April 9, 2021. Appellant filed this timely appeal.
Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant presents three questions, stated verbatim:
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I. Did the PCRA Court err when it found that the new
evidence claim based on the affidavit of Commonwealth
witness Herbert Lee Bower, Jr. recanting his statement to
police and accusing detectives of using a recently identified
unconstitutional pattern and practice of abuse during
interrogations was not timely filed and/or lacked merit?
II. Did the PCRA Court err when it found that the new
evidence claim that detectives who investigated the
Appellant’s case utilized a newly identified unconstitutional
pattern and practice to fabricate evidence against and
inculpate the Appellant was not timely filed and/or lacked
merit?
III. Did the PCRA Court err in not conducting an evidentiary
hearing on either/both of the above claims?
Appellant’s Brief at 3.
In reviewing the PCRA court’s dismissal of Appellant’s petition, we
examine “whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal error.”
Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012). “Our scope of
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the party who prevailed in the
PCRA court proceeding.” Id.To be timely, PCRA petitions, including second and subsequent
petitions, must be filed within one year of when an appellant’s judgment of
sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of the time for seeking the review.” 42 Pa.C.S.A. §
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9545(b)(3). Our Supreme Court has held that the PCRA’s time restriction is
constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.
2004). In addition, our Supreme Court has instructed that the timeliness of
a PCRA petition is jurisdictional. If a PCRA petition is untimely, courts lack
jurisdiction. Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa.
2005); see also Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa.
Super. 2014). Instantly, Appellant’s petition is untimely because his
judgment of sentence became final on August 31, 2011, and this second
petition was filed on July 24, 2019, nearly eight years later. See Coulter,
696 EDA 2014, at *3.
A petitioner may overcome the time-bar if he alleges and proves one
of the three statutory exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1).
Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). The three
exceptions are: “(1) interference by government officials in the presentation
of the claim; (2) newly discovered facts; and (3) an after-recognized
constitutional right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34
(Pa. Super. 2012); see also 42 Pa.C.S.A. § 9545(b)(1)(i-iii). A petition
invoking an exception must be filed within one year of the date that the
claim could have been presented.1 42 Pa.C.S.A. § 9545(b)(2). If a
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1 Effective December 24, 2018, the time period in which to file a petition
invoking an exception was extended from 60 days to one year. 42 Pa.C.S.A.
§ 9545(b)(2). This amendment applies to claims arising one year prior to
the effective date of the amendment, i.e., December 24, 2017, or later. Act
(Footnote Continued Next Page)
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petitioner fails to invoke a valid exception, courts lack jurisdiction to review
the petition or provide relief. Spotz, 171 A.3d at 676.
In arguing he has met the newly discovered fact exception, Appellant
relies on the recantation of the burglary victim, Bowers, who identified
Appellant to police. Amended PCRA Petition, 8/27/20, at 5. Appellant
asserts:
[Appellant’s] decision to waive his constitutional right to trial and
to instead take a plea was based significantly on the belief that
Mr. Bowers would testify consistent with the statement to police.
Had [Appellant] known at that time that Bowers would have
testified truthfully/contrary to the statement attributed to him,
[Appellant] would not have waived him right to trial.
Id. at 15.
Appellant must demonstrate he did not know the facts upon which he
based his petition, and could not have learned the facts earlier by the
exercise of due diligence. See, e.g., Commonwealth v. Bennett, 930
A.2d 1264, 1271 (Pa. 2007). Due diligence demands the petitioner take
reasonable steps to protect his interests. Commonwealth v. Carr, 768
A.2d 1164, 1168 (Pa. Super. 2001). Additionally, the focus of this exception
“is on the newly discovered facts, not on a newly discovered or newly willing
source for previously known facts.” Commonwealth v. Marshall, 947 A.2d
(Footnote Continued) _______________________
2018, Oct. 24, P.L. 894, No. 146, § 3. Appellant filed his PCRA petition on
July 24, 2019, and thus had one year to present his claim.
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714, 720 (Pa. 2008) (emphasis omitted). In other words, the “new facts”
exception
… has two components, which must be alleged and proved.
Namely, the petitioner must establish that: 1) the facts upon
which the claim was predicated were unknown and 2) could not
have been ascertained by the exercise of due diligence. If the
petitioner alleges and proves these two components, then the
PCRA court has jurisdiction over the claim under this subsection.
Bennett, supra at 1272 (citations and emphasis omitted).
Here, Bowers’ affidavit recanting his statement to police is a newly
discovered fact insofar as it indicates Appellant did not know and could not
have known that Bowers would recant his statement to police until Bowers
contacted Appellant’s cousin, Andrew Mosely, on October 17, 2018.
Appellant filed his petition on July 24, 2019, within a year of discovering this
fact.
However, we must examine the test for granting relief based on after
discovered evidence, which requires that the evidence:
(1) could not have been obtained prior to trial by exercising
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach a witness’s
credibility; and (4) would likely result in a different verdict. See
Commonwealth v. Pagan, [] 950 A.2d 270, 292 ([Pa.] 2008)
(citations omitted).
Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014). In
determining “whether the alleged after-discovered evidence is of such nature
and character that it would likely compel a different verdict if a new trial is
granted, . . . a court should consider the integrity of the alleged after-
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discovered evidence, the motive of those offering the evidence, and the
overall strength of the evidence supporting the conviction.”
Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010)
(cleaned up). In addition, “the proposed new evidence must be producible
and admissible.” Castro, 93 A.3d at 825 (cleaned up).
In this case, the PCRA court provided a detailed explanation for its
denial of relief. The court explained:
Here, even if true, Mr. Bowers’ recantation does not entitle
[Appellant] to relief because it would not have justified a new
trial had the case gone to trial. Mr. Bowers never claimed to
have witnessed the shooting of Officer DeCoatsworth, so his
recantation does not affect, at all, the overwhelming evidence
that [Appellant] shot Officer DeCoatsworth in the face with a
shotgun.
Officer DeCoatsworth was available to testify had the case gone
to trial. According to Officer DeCoatsworth, on the morning of
September 24, 2007, he observed [Appellant’s] car parked
illegally and stopped his vehicle to investigate. Officer
DeCoatsworth witnessed three juveniles exit the car and he
called them to come back. As the three came back towards the
car, Officer DeCoatsworth turned toward his own vehicle to
report the stop by radio. As he turned, [Appellant] got out of his
car, pointed a sawed-off shotgun at Officer DeCoatsworth’s
head, and fired. Despite being shot in the face, Officer
DeCoatsworth then chased [Appellant] while giving information
over his police radio. During the pursuit, [Appellant], still
holding the shotgun, turned back to Officer DeCoatsworth, who
fired several shots. [Appellant] then turned down another street
and Officer DeCoatsworth lost sight of him. Officer
DeCoatsworth then sat down and called for help on his police
radio.
The three juveniles from [Appellant’s] car, Marquis Guilford,
Tevin Jones, and Ryan Jones, were also available to testify at a
trial. They would have testified that [Appellant] picked them up
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before the shooting and drove them to a friend’s house and then
to [Appellant’s] house to play video games. They would have
testified that they witnessed [Appellant], whom they had each
known, shoot Officer DeCoatsworth. Each gave a statement to
police consistent with these facts.
Four additional eyewitnesses, Victor Burmes, Thomas Culp,
Joshua Cummings, and Faith Rhodes, would have testified
consistent with Officer DeCoatsworth’s account. Burmes also
identified [Appellant] as the shooter at Misericordia Hospital later
that day. Kasheem King, [Appellant’s] neighbor, identified
[Appellant] as the owner of the car involved in the shooting.
Seleasha Yates did not witness the shooting, but would testify
that she heard the gunshots, saw the three juveniles running
from the scene, and saw blood on the sidewalk after the
shooting. Officer Paul Haye would testify that he witnessed
Officer DeCoatsworth driving before the shooting, consistent with
Officer DeCoatsworth’s statement. He then heard gunshots and
was waved to the location of the injured Officer DeCoatsworth by
civilians. He then secured the crime scene. Alexis Canela,
Alwayne Dewdney, Clermont Tyler, Clyde Ransome, Jr., and
Meenhard Herlyn each observed [Appellant] running from Officer
DeCoatsworth. Canela positively identified [Appellant] at
Misericordia Hospital later that day. Dewdney contacted the
police after the incident and identified [Appellant] from a lineup.
Tyler failed to identify [Appellant] at Misericordia Hospital but
later told police he only did so because he was in front of
[Appellant] at the time and was scared. Nicole Millard,
[Appellant’s] cousin’s girlfriend, would testify that a week before
the shooting, [Appellant] told her that he was going to shoot the
next cop that live-stopped him.
Officers Thomas Bartol, James Martin, Thomas Maminski, Frank
Costanzo, Gerard Scherf, Shawn Hagan, and Kevin Corcoran
would also have testified had this case gone to trial. The officers
took part in the search for the suspect. Officer Bartol found
[Appellant] hiding in some foliage in a rear garden. When
Officer Bartol asked [Appellant] where the gun was, [Appellant]
told him he hid it in a nearby alleyway. When Officer Bartol
attempted to handcuff [Appellant], [Appellant] resisted and
Officer Bartol pepper sprayed him before finally taking him into
custody with the help of other officers.
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[Appellant] was then taken to Misericordia Hospital after his
arrest. Detectives Jim Burke and Edward Rocks met [Appellant]
at the hospital and advised him of his Miranda rights, which
[Appellant] waived. [Appellant] told these detectives that he
had pointed the sawed-off shotgun at Officer DeCoatsworth’s
head and shot him because [Appellant] did not want to get
arrested. [Appellant] also told these detectives that he had
hidden the shotgun in the alleyway. [Appellant] was then
discharged from the hospital and taken to the Homicide Division
where he gave Detectives Burke and Rocks a detailed statement.
[Appellant] admitted to possessing the sawed-off shotgun,
shooting Officer DeCoatsworth, and fleeing. At the sentencing,
[Appellant] apologized to Officer DeCoatsworth and the officer’s
family for the “pain and suffering [Appellant] brought against
them.”
Officers recovered the shotgun from under a pile of debris in the
alley where [Appellant] was arrested. While executing a search
warrant at [Appellant’s] home, detectives found three live 12-
gauge shotgun shells in the pocket of a vest hanging in
[Appellant’s] room.
All of the above evidence was overwhelming evidence of
[Appellant’s] guilt, and was completely independent of the
testimony of Mr. Bowers. Mr. Bowers’ original statement was
only relevant to the burglary charge, since he identified
[Appellant] as the person who broke into Mr. Bowers’ house.
However, there was ample evidence independent of Mr. Bowers
supporting the conviction for burglary. [Appellant] admitted that
after the shooting, he broke open a back door into a garden and
told the resident to let him in. The resident told him to get out.
Police recovered a pair of sandals at 51st Street and Arch Street
and a white sweat sock from the fence of the rear yard of 125
North 52nd Street, Bowers’ home. At the time of his arrest, near
Mr. Bowers’ home, [Appellant] was not wearing shoes. DNA
from the sweat sock matched that of [Appellant].
PCRA Court Opinion, 6/11/21, at 7-9 (citations omitted).
Our review of the record confirms that the evidence of Appellant’s guilt
– absent the testimony of Bowers – is overwhelming. For example,
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Appellant admitted to police he broke into Bowers’ home. N.T., 5/20/08, at
40-42 Ex. C-1 (Defendant’s Second Written Statement). Also, physical
evidence recovered from Bowers’ yard contained Appellant’s DNA. Id. at 44,
48. As the after-discovered evidence would not compel a different result,
the PCRA court did not err. Padillas, supra at 365.
Appellant also asserts that detectives used threats and coercion to
obtain Bowers’ trial testimony, stating the detectives,
specifically including but not limited to Det. Verrecchio, used
threats, coercion, and other unlawful means to obtain Mr.
Bower[s’] statement violating Appellant’s constitutional rights
under the Fifth, Sixth and Fourteenth Amendments of the U.S.
Constitution and Article 9 of the P.A. Constitution. The
detectives’ actions were part of an unconstitutional habit,
pattern, and practice within the Homicide Unit.
Appellant’s Brief at 25. This claim also fails because the absence of Bowers’
testimony would not compel a different result at a new trial. Padillas,
supra.
Finally, Appellant contends the PCRA court erred by not conducting an
evidentiary hearing, but does not articulate specific issues of material fact
which would necessitate a hearing. Appellant’s Brief at 42-43. Appellant
simply asserts, “when, as here, witnesses[’] credibility [is] directly at issue,
a hearing is necessary as there is a genuine issue of material fact in
dispute.” Id. It is well-settled that a PCRA petitioner does not have an
absolute right to a hearing. Commonwealth v. Jones, 942 A.2d 903, 906
(Pa. Super. 2008). A court may decline to hold a hearing if it determines
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there are no genuine issues of material fact, the defendant is not entitled to
PCRA relief, and no purpose would be served by any further proceedings.
See Pa.R.Crim.P. 907(1). “[T]o obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that he raised
a genuine issue of fact which, if resolved in his favor, would have entitled
him to relief, or that the court otherwise abused its discretion in denying a
hearing.” Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011)
(citation omitted) (alteration in original). Appellant has failed to
demonstrate that a hearing was warranted.
In sum, the record supports the PCRA court’s factual findings
regarding, inter alia, the overwhelming evidence of Appellant’s guilt, as well
as its legal conclusions denying a hearing and dismissing Appellant’s second
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2022
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