J-S58024-19

                                 2020 PA Super 12


  COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
  TERSAUN COLE                             :
                                           :
                     Appellant             :   No. 421 WDA 2019

           Appeal from the PCRA Order Entered February 21, 2019
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0002470-2011


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

OPINION BY BENDER, P.J.E.:                          FILED JANUARY 24, 2020

      Appellant, Tersaun Cole, appeals from the post-conviction court’s

February 21, 2019 order dismissing his timely-filed petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,

we reverse the court’s order, vacate Appellant’s judgment of sentence, and

remand for a new trial.

      This Court previously summarized the evidence presented at Appellant’s

trial, as follows:

            Denise Hayden (“Ms. Hayden”) was returning to her Elmore
      Square apartment in a private cab on December 30, 2010. As the
      cab approached Elmore Square, Ms. Hayden observed a young
      man she knew as “P Murph” run across the street and up to
      Appellant and two other young men, all of whom were dressed in
      black and standing in a doorway. Ms. Hayden saw a handgun in
      Appellant’s hand. After entering her street-level apartment, Ms.
      Hayden heard gunshots and ran to the courtyard. There, she saw
      the victim come out of a hallway and fall to his knees. She also
      saw Appellant with the gun in his hand run out of the hallway.
      N.T., 3/19/13, at 44–50. Two or three days before the shooting,
J-S58024-19


     Ms. Hayden observed Appellant, “P Murph,” and two men she did
     not recognize near the fence, looking toward the courtyard at the
     victim. She overheard one of them say, “We didn’t get him today.
     We’ll get him tomorrow.” Id. at 53–58, 62.

           The victim’s stepbrother, Edwin Peoples, and the victim’s
     cousin, Deron Townsend, were eye-witnesses to the shooting.
     They both described the events leading up to and including when
     Appellant and a lighter-skinned man shot the victim, while a third
     man stood watch. N.T., 3/19/13, at 103–111, 121–130. They
     both identified Appellant from a photographic array as one of the
     shooters. Id. at 111, 129.

           Pittsburgh Homicide Detective George Satler reviewed video
     footage captured from security cameras around Elmore Square
     between 3:17 p.m. and 3:19 p.m. on December 30, 2010. The
     videos showed three individuals exiting an apartment and walking
     out of sight, the victim staggering and falling to the ground, and
     the same three individuals running away and fleeing in a vehicle.
     The cameras did not capture the actual shooting. N.T., 3/19/13,
     at 74–87, Commonwealth Exhibits 6 and 7 (videos).

            On January 3, 2011, the Allegheny County District Attorney
     filed a criminal information, charging Appellant with [first-degree
     murder, robbery, conspiracy, and carrying a firearm without a
     license]. During the early morning hours of January 23, 2011,
     Pittsburgh Police Officer Jeffrey Tomer initiated a traffic stop on
     Pittsburgh’s North Side. Appellant was a passenger in the back
     seat of the vehicle. Once the vehicle stopped, Appellant fled on
     foot. Officer Tomer apprehended Appellant, arrested him, and
     found two identification cards on him, one with Appellant’s name
     and one for a “Jaison Houser.” Appellant informed the officer that
     he was Jason Houser and that Cole was his cousin. N.T., 3/19/13,
     at 143–148, Commonwealth Exhibits 20 and 21.

     Appellant proceeded to trial on March 19, 2013.

Commonwealth v. Cole, 135 A.3d 191, 192–93 (Pa. Super. 2016), appeal

denied, 145 A.3d 162 (Pa. 2016).

     At the close of Appellant’s trial, he was convicted of the above-stated

offenses. On June 19, 2013, he was sentenced for his murder conviction to

life imprisonment, without the possibility of parole (“LWOP”), as well as a

                                    -2-
J-S58024-19



consecutive term of 15 to 30 years’ for his robbery and conspiracy offenses.

He received no further penalty for his firearm conviction.

      Appellant filed a direct appeal, and this Court affirmed his convictions,

but vacated a mandatory-minimum sentence the court had imposed for

Appellant’s robbery conviction, concluding that it was illegal under Alleyne v.

United States, 570 U.S. 99, 106 (2013) (holding that “facts that increase

mandatory minimum sentences must be submitted to the jury” and found

beyond a reasonable doubt). See Cole, 135 A.3d at 196. On November 9,

2017, the trial court resentenced Appellant to the same, aggregate term of

incarceration, which included a discretionary term of 5 to 10 years’

imprisonment for robbery.

      Appellant then filed a timely, pro se PCRA petition, and counsel was

appointed.    On January 2, 2019, counsel filed an amended petition on

Appellant’s behalf, raising several claims of trial counsel’s ineffectiveness. On

January 29, 2019, the court issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s petition. He did not respond, and on February 21, 2019,

his petition was dismissed. Appellant filed a timely notice of appeal, and he

complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. The PCRA court filed its Rule

1925(a) opinion on May 30, 2019.

      Herein, Appellant states four issues for our review, which we have

reordered for ease of disposition:




                                      -3-
J-S58024-19


      1. Did the PCRA court err in dismissing [Appellant’s] claim that
      trial counsel was ineffective in failing to request a jury instruction
      that [Ms.] Hayden’s convictions undermined her credibility?

      2. Did the PCRA court err in dismissing [Appellant’s] claim that
      trial counsel was ineffective because, although she was obligated
      to use a Commonwealth witness, [Ms.] Hayden’s, prior convictions
      for retail theft, a crimen falsi offense, to impeach her credibility at
      trial, her law firm was concurrently representing and had
      previously represented [Ms.] Hayden in prosecutions leading to
      those convictions, rendering her likewise obligated to keep
      confidential all information related to those prosecutions, and she
      failed to use the convictions to impeach [Ms.] Hayden’s credibility?

      3. Did the PCRA court err in dismissing [Appellant’s] claim that
      trial counsel was ineffective in failing to impeach one of the
      Commonwealth’s chief witnesses, Edwin Peoples, with numerous
      prior inconsistent statements?

      4. Did the PCRA court err in dismissing [Appellant’s] claim that
      trial counsel was ineffective in failing to argue that the evidence
      presented at trial did not establish a robbery?

Appellant’s Brief at 4.

      First, “[t]his Court’s standard of review from the grant or denial of post-

conviction   relief   is   limited   to   examining   whether   the   lower   court’s

determination is supported by the evidence of record and whether it is free of

legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).

Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has stated that:

      [A] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the “[i]neffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place.”            Generally, counsel’s
      performance is presumed to be constitutionally adequate, and

                                          -4-
J-S58024-19


      counsel will only be deemed ineffective upon a sufficient showing
      by the petitioner. To obtain relief, a petitioner must demonstrate
      that counsel’s performance was deficient and that the deficiency
      prejudiced the petitioner. A petitioner establishes prejudice when
      he demonstrates “that there is a reasonable probability that, but
      for counsel’s unprofessional errors, the result of the proceeding
      would have been different.” … [A] properly pled claim of
      ineffectiveness posits that: (1) the underlying legal issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) actual prejudice befell the petitioner
      from counsel’s act or omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

      Appellant first contends that trial counsel acted ineffectively by not

requesting that the court instruct the jury regarding Denise Hayden’s crimen

falsi convictions. During Ms. Hayden’s direct-examination, she admitted that

she had been previously convicted of retail theft, and that she was presently

incarcerated for violating her probation by committing a new retail theft. See

N.T. Trial, 3/19/13, at 44-45. Appellant claims that, given this testimony, “he

was at least arguably entitled to obtain a jury instruction that [Ms.] Hayden’s

convictions for retail theft could be considered to undermine her credibility.”

Appellant’s Brief at 39.

      We agree that Appellant’s claim has arguable merit.        As Appellant

correctly observes, “[g]enerally, ‘[d]efendants are generally entitled to

instructions that they have requested and that are supported by the

evidence.’” Appellant’s Brief at 39 (quoting Commonwealth v. Charleston,

94 A.3d 1012, 1026 (Pa. Super. 2014) (citations omitted)).          Here, Ms.

Hayden testified about her retail theft convictions, which were properly


                                     -5-
J-S58024-19



admitted to impeach her credibility. See Commonwealth v. LaMassa, 532

A.2d   450,   452   (Pa.   Super.   1987)   (internal   citations   omitted)   (“In

Pennsylvania, a witness may be impeached by showing a prior conviction if

the crime involved dishonesty or false statement.        Burglary and theft are

offenses which are crimen falsi.”). Therefore, Appellant was entitled to a jury

instruction regarding the relevancy of Ms. Hayden’s crimen falsi convictions,

and how the jury could utilize that evidence in assessing her credibility. See

id. (concluding that LaMassa was entitled to a jury instruction regarding the

“relevancy and the use which could be made of [the witness’s crimen falsi

convictions] in determining [the witness’s] credibility”).          Consequently,

Appellant’s claim that counsel acted ineffectively by not requesting such an

instruction has arguable merit.

       In regard to the reasonable basis prong of the ineffectiveness test,

Appellant states:

              Simply put, there is only benefit, and no burden, to seeking
       and obtaining an instruction that highlights a Commonwealth
       witness’s prior convictions for crimes of dishonesty and directs
       jurors that they are permitted to consider those convictions as
       undermining her testimony. Thus, [defense counsel’s] failure to
       seek and obtain such an instruction lacked a reasonable strategic
       basis.

Appellant’s Brief at 42.

       Initially, it is unfortunate that the PCRA court did not conduct a hearing

to permit Appellant to elicit counsel’s testimony regarding her decision not to

request the at-issue instruction. However, we need not remand for such a



                                      -6-
J-S58024-19



hearing. As discussed in more detail infra, Ms. Hayden’s testimony was vital

to the Commonwealth’s case against Appellant, especially in terms of proving

the premeditation element of first-degree murder. Thus, counsel could have

had no reasonable basis for not requesting that the jury be instructed that it

could consider Ms. Hayden’s crimen falsi offenses as casting doubt on her

overall credibility.

      Moreover, we reject the Commonwealth’s suggestion that counsel acted

reasonably because, “[i]n circumstances like those in the case at bar, where

the Commonwealth preemptively pointed out the commission by a witness of

crimen falsi [crimes], this Court ha[s] concluded that there is no obvious

benefit to counsel[’s] raising it again.” Commonwealth’s Brief at 26-27 (citing

Commonwealth v. Treadwill, 911 A.2d 987, 992 (Pa. Super. 2006)). In

Treadwill, we rejected the appellant’s argument that his counsel acted

ineffectively by not seeking to admit a witness’s crimen falsi convictions.

Treadwill, 911 A.2d at 992. We concluded that because “the Commonwealth

pre-emptively raised the issue of [the witness’s] crimen falsi [crimes],” the

appellant’s counsel could procure “no obvious benefit from raising it again.”

Id. Thus, “there was a reasonable basis for trial counsel’s inaction.” Id.

      The issue in Treadwill is not analogous to the case at hand. In the

issue we are addressing, Appellant is not challenging counsel’s failure to admit

Hayden’s crimen falsi convictions; rather, he is alleging that counsel acted

ineffectively by not requesting an instruction regarding that evidence. Clearly,

Appellant would have only benefitted from the court’s informing the jury that

                                     -7-
J-S58024-19



it could consider Hayden’s crimes in assessing her credibility.        Therefore,

Treadwill does not impact our conclusion that counsel could have had no

reasonable basis for not asking for a crimen falsi jury instruction.

      Next, we assess whether Appellant was prejudiced by counsel’s conduct.

In this regard, Appellant explains:

             [T]he Commonwealth’s case rested largely on testimony
      from [Ms.] Hayden that, a few days prior to the shooting,
      [Appellant] was standing outside with three other men, looking at
      Hill, and one of the men indicated, “We didn’t get him today. We’ll
      get him tomorrow,” which suggested that Hill and others had a
      days-long conspiracy to either rob or kill Hill. [Ms.] Hayden’s
      testimony in this regard, if believed, would persuasively establish
      the element of premeditation necessary for a conviction of first-
      degree murder, disprove any potential claim of self-defense, or
      establish a conspiracy to rob Hill, supporting a theory of felony
      murder, see 18 Pa.C.S. [§] 2502(a)[,] (d) (defining first-degree
      murder as a “willful, deliberate, and premeditated killing”); 18
      Pa.C.S. § 2502(b) (defining second-degree murder as a murder
      occurring while the defendant is a “principal or an accomplice in
      the perpetration of a felony”), as well as robbery and criminal
      conspiracy itself.       Also detailed above, none of the
      Commonwealth’s other witnesses offered such damning evidence
      establishing [Appellant’s] participation in a protracted plot against
      Hill. Indeed, the Commonwealth in its summation repeatedly
      emphasized [Ms.] Hayden’s testimony as crucial in meeting its
      burden of proof. See, e.g., N.T., 3/20/13, at 41 (“[T]hey know
      where they’re going, because we heard Ms. Hayden tell us days
      before, a couple days before the shooting, the defendant and his
      associates were out here. They were looking right at who? Right
      at [Hill], saying, [‘]We didn’t get him today; we’ll get him
      tomorrow.[’] And they did.”); id. at 43 (“What is premeditation?
      It’s planning beforehand…. What evidence do we have of a plan?
      We didn’t get him today; we’ll get him tomorrow.”); id. at 48 (“I
      submit … to you it was an assassination and first[-]degree murder.
      We didn’t get him today; we’ll get him tomorrow.”)[.]

            Had the jury been instructed that [Ms.] Hayden’s convictions
      constituted a basis for discounting her testimony, there is a
      reasonable probability that [Appellant] would have been convicted

                                      -8-
J-S58024-19


      of a lesser degree of murder or acquitted of homicide, robbery,
      and/or criminal conspiracy. Indeed, [Ms.] Hayden’s testimony,
      even without the instruction, suffered from veracity and credibility
      problems. First, she was, at the time of the shooting, an avowed
      crack cocaine addict, see N.T. Trial, 3/19/13, at 45…. Moreover,
      she was a crack cocaine addict who worked for Hill and Peoples,
      bringing them purchasers, see N.T. Trial, 3/19/13, at 113-14,
      suggesting that her addiction and income might reasonably have
      been dependent on bolstering the likelihood of Peoples’ preferred
      outcome at trial. Furthermore, the substance of [Ms.] Hayden’s
      testimony itself raises skepticism: [I]t is difficult to imagine why
      four men interested in plotting a robbery and/or murder would do
      so in public, in view and potentially [in] earshot of their intended
      victim, and declare that they will return to execute their scheme
      the next day (only to do so several days later). Had the jury been
      instructed that [Ms.] Hayden’s crimes of dishonesty were yet
      further reason to view [Ms.] Hayden’s testimony with suspicion,
      there is a reasonable likelihood that it would have tipped the
      proverbial balance in favor of discrediting her, and, thus,
      undermined the Commonwealth’s chief theory of premeditation,
      robbery, and/or conspiracy.

Appellant’s Brief at 43-46.

      Appellant’s   prejudice   argument    is   convincing,   and   neither   the

Commonwealth nor the PCRA court offer any compelling rationale to

undermine it. First, the Commonwealth wholly misconstrues Appellant’s claim

as an allegation that “counsel ineffectively failed to object to the court’s

instruction concerning credibility because it did not advise the jury to consider

[] Hayden’s convictions for retail theft.”       Commonwealth’s Brief at 23

(emphasis added). It then goes on to insist that counsel had no basis for

objecting to the court’s “appropriate” charge regarding the jury’s general

assessment of witness credibility. Id. However, Appellant is not arguing that

counsel should have objected to the charge as given; he is claiming that




                                      -9-
J-S58024-19



counsel should have requested a more specific instruction regarding

Hayden’s credibility in light of her crimen falsi convictions.

      The Commonwealth also argues, and the PCRA court concludes, that

Appellant was not prejudiced by the omitted crimen falsi instruction because

the trial court provided a general instruction on assessing witness credibility.

See id. at 27; PCRA Court Opinion (PCO), 5/30/19, at 5 (rejecting Appellant’s

ineffectiveness claim because the court “instructed the jury before the start of

testimony that it was their job to assess credibility, gave an explanation of

crimen falsi when the witness testified[,] and reiterated the instruction

immediately prior to jury deliberations during the jury charge”). We disagree.

In LaMassa, “[t]he trial court instructed the jury regarding various factors

which it could consider in determining the credibility of the witnesses.

However, the court did not instruct the jury about the use to be made of prior

convictions of [one of the Commonwealth’s witnesses,]” although defense

counsel had requested such an instruction. LaMassa, 532 A.2d at 451. On

appeal, we held that the trial court had erred by denying defense counsel’s

request for a crimen falsi instruction, thus demonstrating that the trial court’s

general instruction on witness credibility was not sufficient. Id. at 451-52.

      In this case, Appellant was likewise entitled to a jury charge regarding

the relevancy of Ms. Hayden’s crimen falsi convictions and how the jury could

use that evidence in assessing her credibility.      Pursuant to LaMassa, the

court’s general instructions on witness credibility, provided at the beginning

and end of Appellant’s trial, were not sufficient, as they at no point addressed

                                      - 10 -
J-S58024-19



the specific issue of Ms. Hayden’s crimen falsi crimes. See N.T. Trial, 3/19/13,

at 10; N.T. Trial, 3/20/13, at 54-55.

      Moreover, the record does not support the PCRA court’s statement that

it explained crimen falsi crimes when Hayden testified.         See PCO at 5

(declaring that it “gave an explanation of crimen falsi when the witness

testified”). The only statement to which the court could be referring was a

ruling on defense counsel’s objection to the Commonwealth’s asking Ms.

Hayden why she was “doing these retail thefts[.]” N.T. Trial, 3/19/13, at 45.

In overruling the objection, the court remarked, “It’s fair background for the

witness’[s] credibility.” Id. The court did not explain, in this statement, the

relevancy of Ms. Hayden’s crimen falsi offenses, nor instruct the jury on how

that evidence could be considered in assessing her credibility. Additionally,

as Appellant avers,

      the [c]ourt’s indication in this regard was an evidentiary ruling,
      and, at the beginning of trial, the court specifically admonished
      the jury, “do not concern yourselves with any objections and my
      reasons for ruling on them.”        [N.T. Trial, 3/19/13,] at 14.
      Moreover, the question did not concern Hayden’s convictions
      themselves, but, rather, her motivation for committing them, and,
      as detailed above, an instruction regarding crimen falsi is specific
      and distinct from other general concepts relating to credibility.

Appellant’s Brief at 50 n.13. Therefore, this ruling by the court did not resolve

the prejudice that Appellant suffered by counsel’s failure to request a crimen

falsi jury instruction.

      In sum, we conclude that the PCRA court erred by rejecting Appellant’s

claim that his trial counsel acted ineffectively by not requesting a jury


                                     - 11 -
J-S58024-19



instruction regarding the impact that Ms. Hayden’s crimen falsi offenses could

have on the jury’s assessment of her credibility. The evidence supported the

trial court’s providing such an instruction, had counsel requested it.        See

Charleston, 94 A.3d at 1026. Additionally, we can discern no basis on which

counsel could have reasonably foregone asking for the instruction, and we

conclude that there is a reasonable probability that the result of Appellant’s

trial would have been different had a crimen falsi instruction been given.

Consequently, Appellant is entitled to a new trial.1

        Order reversed. Judgment of sentence vacated. Case remanded for a

new trial. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/2020




____________________________________________


1   In light of this disposition, we need not address Appellant’s remaining issues.

                                          - 12 -
