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[U] Commonwealth v. Coleman

Superior Court of Pennsylvania

February 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
KWILSON COLEMAN, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered October 21, 2011, In the Court of Common Pleas of York County, Criminal Division, at No. CP-67-CR-0000448-2009.

BEFORE: SHOGAN, MUNDY and OTT, JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Kwilson Coleman, appeals from the order denying his petition filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We summarize the history of this case as follows. On October 7, 2009, following a three-day trial, a jury convicted Appellant of first-degree murder[1]in relation to the November 27, 2008 shooting death of the victim, Greg Wright. Appellant was seventeen years old at the time of the offense. The trial court subsequently sentenced Appellant to serve a term of life imprisonment without the possibility of parole. Appellant filed post-sentence motions, which were denied by the trial court. On October 18, 2010, a panel of this Court affirmed Appellant's judgment of sentence and on March 16, 2011, the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Coleman, 15 A.3d 531 (Pa.Super. 2010) (unpublished memorandum), appeal denied, 20 A.3d 483 (Pa. 2011).

On June 22, 2011, Appellant, pro se, filed his petition pursuant to the PCRA. Following the appointment of counsel, the PCRA court held a hearing on the merits and subsequently denied Appellant's petition. Appellant then filed this appeal. During the pendency of this appeal, Appellant filed a petition seeking remand pursuant to Pa.R.A.P. 2501(b) based on the United States Supreme Court's decision in Miller v. Alabama, U.S., 132 S.Ct. 2455 (2012). Although we denied Appellant's petition, we permitted him to file a supplemental brief to address the issue raised in Miller regarding the imposition of an automatic life sentence on a defendant convicted of homicide as a minor.

I. Did the PCRA court commit reversible legal error when it refused to adopt the finding from the United States Supreme Court in Graham v. Florida that it is unconstitutional to sentence a juvenile to life in prison without the possibility of parole?
II. Did the PCRA court commit reversible legal error when it denied Mr. Coleman's request for relief where the Commonwealth committed a clear discovery violation in not turning over the photo line-up until the day of trial?
III. Did the PCRA court commit reversible legal error when it denied Mr. Coleman's request for relief where trial counsel failed to cross-examine Melanie Miller regarding the photo line-up or to request a continuance based on the new evidence of the photo line-up?
IV. Did the PCRA court commit reversible legal error when it denied Mr. Coleman's request for relief where the Commonwealth committed prosecutorial misconduct by calling Melanie Miller as a witness?
V. Did the PCRA court commit reversible legal error when it denied Mr. Coleman's request for relief where Marshi Martin recanted his statement?
VI. Did the PCRA court commit reversible legal error when it denied Mr. Coleman's request for relief where trial counsel failed to request a special jury instruction regarding Melanie Miller's identification?
VII. Did the PCRA court commit reversible legal error when it denied Mr. Coleman's request for relief where trial counsel failed to follow up on Richard Walker's claim that he received letters from Melanie Miller admitting that she lied during trial?

Appellant's Brief at 4-5 (footnote omitted).

Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's determination and whether the PCRA court's determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa.Super. 2011), appeal denied, 42 A.3d 1059 (Pa. 2012) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005)). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001)).

In support of his first issue on appeal, Appellant argues that the United State Supreme Court's holding in Graham v. Florida, ___U.S. ___, 130 S.Ct. 2011 (2010), wherein it held a sentence of life without the possibility of parole imposed on a juvenile convicted of a non-homicide offense is unconstitutional, also rendered Appellant's sentence unconstitutional. Appellant's Brief at 9-11. In his supplemental brief, Appellant argues that the United States Supreme Court's holding in Graham recently was expanded to juveniles convicted of homicide. Appellant's Supplemental Brief at 5 (citing Miller v. Alabama, U.S., 132 S.Ct. 2455 (2012)). Appellant also cites this Court's decision in Commonwealth v. Knox, 50 A.3d 749 (Pa.Super. 2012) wherein we applied the decision in Miller and concluded that the automatic imposition of a sentence of life in prison without the possibility of parole was unconstitutional. Because Appellant was seventeen years old, and thus a minor at the time of his offense, he alleges that his sentence was unconstitutional and requests that it be vacated and the matter remanded for resentencing. Appellant's Supplemental Brief at 8.

In Miller, the Court held that sentencing a juvenile convicted of a homicide offense to mandatory life imprisonment without parole violates the Eighth Amendment's prohibition against cruel and unusual punishment. Accordingly, such sentences cannot be handed down unless a judge or jury first considers mitigating circumstances. Id. at 2475.[2] Recently, however, the Pennsylvania Supreme Court determined that Miller does not apply retroactively to an inmate, convicted as a juvenile, who is serving a sentence of life imprisonment without the possibility of parole and who has exhausted his direct appeal rights and is proceeding under the PCRA. Commonwealth v. Cunningham, A.3d, 38 EAP 2012, 2013 WL 5814388 (Pa. filed October 30, 2013).

Although Appellant was seventeen years old at the time he committed the underlying murder, Miller is inapplicable as it does not apply retroactively to Appellant's PCRA petition, and Appellant is not entitled to relief on this issue.[3] Cunningham.

In his second issue, Appellant claims that the Commonwealth committed a discovery violation for failing to disclose to Appellant, prior to the first day of trial, the existence of a photographic line-up shown to witness Melanie Miller. Ms. Miller allegedly failed to identify Appellant from the photographic line-up with 100 percent certainty. Appellant's entire argument regarding this issue is as follows:

II. The PCRA court committed reversible legal error when it denied Defendant's request for PCRA relief where the Commonwealth committed a discovery violation by not turning over the photo line-up until the day of trial.
The standard of review for an appeal of a denial of a petition for Post-Conviction Relief is whether the PCRA court's determination is supported by the record and is free of legal error.14 This Court will not disturb the findings of the PCRA court unless they are not supported by the record.15
14 Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999).
15 Commonwealth v. Gaskins, 692 A.2d 224, 226 (Pa.Super. 1997).
Mr. Coleman alleges that the Commonwealth presented to defense counsel, on the day of trial, a photo line-up that had been shown to a witness, Melanie Miller. It is not disputed that Mr. Coleman and his trial counsel were not given or even knew about this line-up prior to that moment.16 The reason given by the Commonwealth was that since Ms. Miller did not positively identify Mr. Coleman in that line-up they did not intend to use it.17 Trial counsel decided to not pursue the issue as he decided he was not going to question the witness about the line-up anyway as it did not fit into his trial strategy.18
16 Opinion Pursuant to Rule of Appellate Procedure 1925(a), January 19, 2012, p. 5.
17 Transcript of Proceedings, October 21, 2011, p. 31.
18 Id. at 32.
Whether trial counsel decided to pursue the photo line-up or not is not the issue here. The issue is the Commonwealth not disclosing the existence of this photo line-up, and Ms. Miller's inability to conclusively identify Mr. Coleman until the day of trial. The knowledge of the existence of this information prior to trial could have greatly affected the outcome. Trial counsel could have altered his strategy; any plea offer from the Commonwealth could have been improved since the defense would have had even more proof that the main Commonwealth witness could not identify the Defendant. Any number of negotiations and preparations would have been altered had trial counsel had this information prior to trial. Additionally, there could have been challenges to the photo line-up as well.
Because the Commonwealth intentionally withheld this information until it was too late, they committed a clear discovery violation that altered how the case was tried, and likely, the outcome of the case as well. Therefore, Mr. Coleman is entitled to a new trial where trial counsel has an opportunity to review all of the information and evidence in the case.

Appellant's Brief at 11-12.

At the outset, we observe that Appellant has failed to provide any legal argument on this issue beyond citation to the correct standard of review for appeals from the denial of PCRA relief. In fact, Appellant asserts that "[w]hether trial counsel decided to pursue the photo line-up or not is not the issue here." Appellant's Brief at 12. Appellant baldly concludes, "Because the Commonwealth intentionally withheld this information until it was too late, they committed a clear discovery violation that altered how the case was tried, and likely, the outcome of the case as well." Id.

We are constrained to conclude that Appellant's discussion contained in the argument section of Appellant's brief addressing this issue is not properly developed for appellate review. It is well settled that the argument portion of an appellate brief must be developed with pertinent discussion of the issue, which includes citations to relevant authority. Pa.R.A.P. 2119(a). See Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa.Super. 1996) (stating that "[t]he argument portion of an appellate brief must be developed with a pertinent discussion of the point which includes citations to the relevant authority").

In Commonwealth v. B.D.G., 959 A.2d 362 (Pa.Super. 2008), a panel of this Court offered the following relevant observation regarding the proper formation of the argument portion of an appellate brief:

In an appellate brief, parties must provide an argument as to each question, which should include a discussion and citation of pertinent authorities. Pa.R.A.P. 2119(a). This Court is neither obliged, nor even particularly equipped, to develop an argument for a party. Commonwealth v. Williams, 566 Pa. 553, 577, 782 A.2d 517, 532 (2001) (Castille, J., concurring). To do so places the Court in the conflicting roles of advocate and neutral arbiter. Id. When an appellant fails to develop his issue in an argument and fails to cite any legal authority, the issue is waived. Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa.Super. 1996).

Id. at 371-372.

Here, Appellant's argument pertaining to this issue contains no citation to any relevant legal authority beyond footnotes referencing the appropriate standard of review for appeals from the denial of PCRA relief. Appellant's Brief at 11-12. Instead, the argument portion of Appellant's brief contains a list of circumstances which allegedly "could" have been different had defense counsel been made aware of the photographic line-up earlier. Id. At 12. This failure to develop any legal argument precludes our appellate review. Accordingly, we are constrained to conclude that this issue is waived.

Next, Appellant argues that trial counsel was ineffective for his handling of the late disclosure by the Commonwealth of the photographic line-up information. Appellant asserts that trial counsel did not adequately cross-examine Melanie Miller regarding the photographic line-up and did not request a continuance based upon the new evidence released by the Commonwealth.

In order to succeed on a claim of ineffective assistance of counsel, an appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's performance lacked a reasonable basis; and (3) that the ineffectiveness of counsel caused the appellant prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).

We have explained that trial counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.Super. 2003) (en banc). Moreover, with regard to the second prong, we have reiterated that trial counsel's approach must be "so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa.Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981).

Our Supreme Court has long defined "reasonableness" as follows:

Our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting Com. ex rel. Washington v. Maroney, 235 A.2d 349 (Pa. 1967)) (emphasis in original).

In addition, we are mindful that prejudice requires proof that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Pierce, 786 A.2d at 213. "A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus, when it is clear that an appellant has failed to meet the prejudice prong of an ineffective assistance of counsel claim, the claim may be disposed of on that basis alone, without a determination of whether the first two prongs have been met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa.Super. 2005).

It is presumed that the petitioner's counsel was effective, unless the petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). We are bound by the PCRA court's credibility determinations where there is support for them in the record. Commonwealth v. Battle, 883 A.2d 641, 648 (Pa.Super. 2005) (citing Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).

Furthermore, claims of ineffective assistance of counsel are not self-proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002). "[A] post-conviction petitioner must, at a minimum, present argumentation relative to each layer of ineffective assistance, on all three prongs of the ineffectiveness standard…." Commonwealth v. D'Amato, 856 A.2d 806, 812 (Pa. 2004). "[A]n underdeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy Appellant's burden of establishing that he is entitled to relief." Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001).

Even if we were to assume for the sake of argument that the underlying claim is of arguable merit, and that the ineffectiveness of trial counsel caused Appellant prejudice, we would still conclude, as did the PCRA court, that trial counsel had a reasonable trial strategy. In addressing this issue, the PCRA court stated the following:

It is undisputed that Appellant and his counsel were not given discovery related to the lineup conducted by the Commonwealth, namely Detective Spence, at which time Melanie Miller was unable to conclusively identify Appellant [as] the perpetrator. When the [issue] was raised pre-trial, [trial counsel] discussed the matter with the Court and the Commonwealth and felt it unnecessary to pursue the lineup or potential discovery violation further. [Trial counsel] reasoned that if he questioned Ms. Miller regarding the lineup, it would open the door for the explanation that Ms. Miller did pick out Appellant's photograph, but was merely unable to say with 100 percent certainty that it was him. [Trial counsel] instead chose to challenge Ms. Miller's other inconsistent identifications on cross examination. [Trial counsel] brought out that [Ms. Miller] failed to identify [Appellant] at the preliminary hearing and then positively identified [Appellant] at trial. We thereby find the course of conduct pursued by [trial] counsel had a reasonable basis designed to effectuate the client's interests and decline to grant relief.

PCRA Court Opinion, 1/19/12, at 5.

We agree with the PCRA court's determination that Appellant has failed to establish the second prong of the test for ineffective assistance of counsel, i.e., that trial counsel's performance lacked a reasonable basis. Therefore, we likewise conclude that this claim of ineffective assistance of counsel lacks merit.

In his fourth issue, Appellant argues that the PCRA court erred in its determination regarding his claim of prosecutorial misconduct by the Commonwealth for calling Ms. Miller as a witness. The following is Appellant's entire argument with regard to this issue:

[Appellant] alleges that is was prosecutorial misconduct to even call Ms. Miller as witness. Melanie Miller was the main witness against [Appellant] at trial. Not only did she identify him at trial, but also she, essentially single handedly, convicted him. The issue is that Ms. Miller's prior statements were incredibly inconsistent, and prior to trial she had never been able to conclusively identify [Appellant] as the perpetrator. Given those facts, the Commonwealth should not have been permitted to call her as witness due to the fact that no one knew what she was going to say, or what was the truth. Trial counsel should have objected to her being called as a witness for all of these reasons and did not. For these reasons, [Appellant] is entitled to PCRA relief.

Appellant's Brief at 14 (Verbatim).

Again, Appellant's argument pertaining to this issue contains no citation to any relevant legal authority. This failure to develop any legal argument precludes our appellate review. B.D.G., 959 A.2d at 371-372. Accordingly, we are constrained to conclude that this issue is waived.

In his fifth issue, Appellant argues that the PCRA court committed reversible error when it denied Appellant's request for PCRA relief where Marshi Martin recanted his statement. However, appellant fails to present this Court with any legal precedent or analysis pertaining to this claim. Specifically, Appellant's argument regarding this issue is as follows:

After trial, Marshi Martin wrote an affidavit recanting his statement to police and his trial testimony. Mr. Martin stated that he had been coerced by the police to give testimony against [Appellant]. Specifically, Mr. Martin said that the police told him, after he refused to testify, "that I testify or I go to jail. And to prevent jail, I testified."21
21 Transcript of Proceedings, October 21, 2011, p. 19.
Mr. Martin's affidavit, which is a part of the record from the PCRA hearing on October 21, 2011, speaks for itself, but essentially he admits that he lied when he testified at trial that he was with [Appellant] on the night of the incident. In fact, Mr. Martin was inside drinking and never saw [Appellant] on that night.
Based on the recantation alone, [Appellant] is entitled to a new trial. The entire case revolved around the fact that either [Appellant] or Mr. Martin was the shooter. If trial counsel had known at the time that Mr. Martin was being coerced by the police to testify against [Appellant] the entire trial would have been altered, and most likely the outcome different.
Therefore, [Appellant] is entitled to PCRA relief. Appellant's Brief at 15.

Again, we are constrained to conclude that Appellant's argument pertaining to this issue, which contains no citation to any relevant legal authority, is waived. As we have stated, the failure to develop any legal argument precludes our appellate review. B.D.G., 959 A.2d at 371-372. Thus, we conclude that this issue is waived.

However, even if we had concluded otherwise with regard to this issue and addressed the merits, we would have affirmed on the basis of the PCRA court's following discussion, wherein it concludes that Mr. Martin's recantation is not credible:

In his fifth issue, Appellant claims that this court erred in denying PCRA relief where Marshi Martin was coerced by Detective Spence and has since recanted his statement.
Marshi Martin testified at the PCRA hearing. He originally testified at trial that he was outside with Appellant when the shooting occurred. N.T. at 17. He then wrote in his affidavit of September 2010, that [] he provided false testimony against [Appellant]. He was never outside the night of the shooting, nor did he come to the scene with Appellant. Id. at 18. He explained that he initially gave the statement accusing Appellant because Detective Spence kept telling him that he was lying and that he could go to jail for conspiracy. He then claimed he gave the statement against Appellant and testified to avoid going to jail. Mr. Martin testified at the PCRA hearing that when he wrote the affidavit he wanted to come forward with the truth about what really happened that night.
Recantation is one of the least reliable forms of proof, particularly when it constitutes admission of perjury, in consideration of after-discovered evidence. Commonwealth v. McCracken, 659 A.2d 541 (Pa. 1995).
We did not find Mr. Martin to be a credible witness at the PCRA hearing. We observed his demeanor and manner of testifying and we were satisfied that his trial testimony was the more truthful account of what in fact occurred. As it relates to Appellant's identity, other witnesses in addition to Mr. Martin identified Appellant as being present at the scene.

PCRA Court Opinion, 1/19/12, at 5-6. We agree with the PCRA court's conclusion and would adopt it as our own.

In his sixth issue, Appellant argues that the PCRA court committed reversible legal error when it denied Appellant's request for PCRA relief where trial counsel failed to request a special instruction regarding Melanie Miller's identification. We set forth the entirety of Appellant's argument on this issue:

As discussed in great deal above, Melanie Miller made a number of inconsistent statements, as well as was never able to identify [Appellant] prior to trial. Despite this, trial counsel did not request any special jury instructions regarding her inconsistent statements or his [sic] inability to identify [Appellant] prior to trial. Trial counsel stated,
"I didn't make a specific request because my experience in front of Judge Kennedy is he gave the standard jury instructions regarding jury credibility as well as eye witness testimony and their ability to see and perceive what they testify in regards to. I did not make any additional request beyond or in addition to those standard instructions that the judge gave." 22
22 Transcript of Proceedings, October 21, 2011, p. 35.
Normally this would be satisfactory. However, this case was so reliant on Ms. Miller's identification of [Appellant] at trial that a special jury instruction was warranted. Ms. Miller's inability to identify [Appellant] prior to trial should have been the centerpiece of trial counsel's strategy, and should have been made more of an issue. A request for a jury instruction regarding the reliability of her identification when she could not identify [Appellant] prior to trial, ever, should have been made. Ms. Miller's credibility, and the reliability of her identification of [Appellant], were the poles that supported the Commonwealth's entire case. The jury should have been instructed to take an extra long look at that identification.

Appellant's Brief at 15-16.

Yet again, Appellant's argument related to this issue contains no citation to or discussion of relevant legal authority. This failure to develop a legal argument precludes our appellate review. B.D.G., 959 A.2d at 371-372. Accordingly, we are constrained to conclude that this issue is waived.

Moreover, even if we were to presume that Appellant is attempting to argue that trial counsel was ineffective in failing to request a jury instruction, and we were to assume for the sake of argument that there is underlying merit to the claim, and that trial counsel lacked an appropriate strategy in this regard, we would still conclude that the issue lacks merit because Appellant has failed to establish the necessary prejudice prong of the three-part ineffective assistance of counsel test. As we previously stated, claims of ineffective assistance of counsel are not self-proving. Wharton, 811 A.2d at 986. Prejudice requires proof that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Pierce, 786 A.2d at 213. "A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Daniels, 963 A.2d at 419. Accordingly, when it is clear that an appellant has failed to meet the prejudice prong of an ineffective assistance of counsel claim, the claim may be found to lack merit on that basis alone. Baker, 880 A.2d at 656.

Appellant presented no argument concerning whether Appellant suffered prejudice as a result of the inaction. Again, claims of ineffective assistance of counsel are not self-proving. Wharton, 811 A.2d at 986. Accordingly, we must conclude that Appellant has failed to establish his claim that trial counsel was ineffective in this regard.

In his final issue on appeal, Appellant presents the argument that the PCRA court committed reversible legal error when it denied Appellant's request for PCRA relief where trial counsel failed to follow up on Richard Walker's claim that Melanie Miller had told Mr. Walker that she had lied at trial. However, upon review of the issue as presented by Appellant we conclude that the claim has been abandoned by PCRA counsel. Specifically, the appellate brief filed on behalf of Appellant states the following with regard to this issue:

[Appellant] alleges that Richard Walker contacted him after his trial and told him that he had letters from Melanie Miller that stated she had lied at [Appellant's] trial. Trial counsel was aware of this, and besides a couple of letters to Mr. Walker, did no follow up investigation. [Appellant] submits that trial counsel should have gone to greater lengths to procure these letters from Mr. Walker.
After reviewing all the information, and the relevant case law, undersigned counsel has determined that this issue is without merit. It is being briefed here to preserve the issue for further appellate review. While it is undisputed that Mr. Walker contacted [Appellant] regarding these letters, trial counsel did contact Mr. Walker regarding them. Mr. Walker, despite requests from trial counsel, failed to produce these letters. [Appellant] was unable to procure these letters as well.
Besides his attempts to procure these letters, and because of Mr. Walker's refusal to turn them over, undersigned counsel can think of nothing else trial counsel could have done. For that reason, this issue is without merit.

Appellant's Brief at 16-17 (emphasis added). Hence, this issue requires no further discussion.

Order affirmed.

OTT, J., Concurs in the Result.

Judgment Entered.


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