J-S37025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID COIT                                 :
                                               :
                       Appellant               :   No. 561 EDA 2017

             Appeal from the PCRA Order Entered January 30, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0005384-2010


BEFORE:      OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED AUGUST 24, 2018

        Appellant David Coit appeals from the order entered dismissing his first

petition for relief filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. § 9541-9546. We affirm.

        Coit and his co-defendant, Christina Walton, were tried without a jury in

2011. Ronald Hernandez testified that Coit and Walton lured him to a sandwich

shop, where they beat him. Hernandez suffered serious injuries, including a

stab wound. Coit was convicted of one count of aggravated assault and one

count of simple assault.1 Walton was acquitted of all charges. The court

sentenced Coit to an aggregate of seven to 14 years in prison, to be followed


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*    Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2702(a)(1) and 2701(a)(1), respectively.
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by three years of probation.2 Coit filed a direct appeal, and we affirmed. See

Commonwealth v. Coit, No. 1936 EDA 2011, unpublished memorandum at

11-12 (Pa.Super. filed March 12, 2013). The Supreme Court denied Coit’s

Petition for Allowance of Appeal in August 2013. See Commonwealth v.

Coit, 74 A.3d 125 (Pa. 2013).

       Coit filed a timely pro se PCRA Petition on October 8, 2014. The PCRA

court appointed counsel, who filed an Amended Petition, a Second

Supplemental Petition, and a Third Supplemental Petition.3 The PCRA court

dismissed the Petition without a hearing on January 30, 2017.4 Coit filed a

timely notice of appeal on February 7, 2017, and raises the following issues:

       I.    Did the [PCRA] court err in denying [Coit] an evidentiary
       hearing on the issue of evidence that was not available at trial that
       would have proved [Coit innocent] of the offenses?

       II.    Did the [PCRA] court err in denying [Coit] an evidentiary
       hearing on trial defense counsel’s vitiating [Coit]’s constitutional
       right to testify in his own defense when [Coit] raised a material
       issue of fact concerning this issue?

       III. Did the [PCRA] court err in denying [Coit] an evidentiary
       hearing on trial counsel’s ineffectiveness for failing to secure an
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2 The charge of simple assault merged with the charge of aggravated assault
for sentencing purposes.

3 Coit filed a second PCRA petition, pro se, on July 7, 2015, arguing that his
mandatory minimum sentence was unconstitutional. It does not appear that
the PCRA court took any action on this second pro se petition, which was filed
after Coit had been appointed counsel.

4The PCRA court had issued a notice of its intent to dismiss the Petition on
December 2, 2016, pursuant to Pa.R.Crim.P. 907. Coit did not respond to the
Rule 907 notice.

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      exculpatory store surveillance video before the video was
      inadvertently lost by the Commonwealth when [Coit] raised a
      material issue of fact concerning this issue?

      IV.   Did the [PCRA] court err in denying [Coit] an evidentiary
      hearing for trial defense counsel’s ineffectiveness in stipulating to
      the fact that the store surveillance of the video [o]f the incident
      would not be brought up at trial when it was the Commonwealth
      that lost the evidence and this loss of evidence by the
      Commonwealth raises an inference that the video would have
      been unfavorable evidence for the Commonwealth?

Coit’s Br. at 2.

      “[I]n reviewing the propriety of an order granting or denying PCRA relief,

this Court is limited to ascertaining whether the evidence supports the

determination of the PCRA court and whether the ruling is free of legal error.”

Commonwealth v. Andrews, 158 A.3d 1260, 1262-63 (Pa.Super. 2017). A

PCRA petitioner is entitled to an evidentiary hearing where the petition raises

an issue of material fact, which, if resolved in the petitioner’s favor, would

justify relief. Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).

                       I. After-Discovered Evidence

      In his first issue, Coit argues that the PCRA court erred in denying him

an evidentiary hearing to determine whether the testimony of Christina

Walton, his co-defendant, qualified as after-discovered evidence under 42

Pa.C.S.A. § 9543(a)(2)(vi). Coit attached to his Third Supplemental Petition

what appears to be the transcription, hand-written by Coit’s private

investigator, of a conversation that took place a few weeks before the Third

Supplemental Petition was filed. During that conversation, Walton allegedly

told the private investigator that Hernandez began the assault and that she


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hit him in self-defense. Coit then allegedly came to her aid by stepping

between Walton and Hernandez and separating them. Walton allegedly told

the private investigator that she “blacked out” during the fight, and did not

see Coit hit or stab Hernandez. Coit claims that the PCRA court erred in

denying him an evidentiary hearing, as it would have allowed the PCRA court

to hear Walton’s testimony and evaluate her credibility.5

       A petitioner may qualify for relief under Section 9543(a)(2)(vi) of the

PCRA is if he pleads and proves by a preponderance of the evidence that his

conviction resulted from “[t]he unavailability at the time of trial of exculpatory

evidence that has subsequently become available and would have changed

the outcome of the trial if it had been introduced.” 42 Pa.C.S.A. §

9543(a)(2)(vi). To obtain relief under this section, the petitioner must

demonstrate that the “after-discovered evidence”:

       (1) could not have been obtained prior to the conclusion of the
       trial by the exercise of reasonable diligence; (2) is not merely
       corroborative or cumulative; (3) will not be used solely to impeach
       the credibility of a witness; and (4) would likely result in a different
       verdict if a new trial were granted.




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5 Coit also argues that Walton’s testimony was unavailable at the time of trial,
and could not have been produced through the exercise of due diligence at
that time, because Walton asserted her right to remain silent. See N.T.,
3/21/11, at 152. While it does not appear that the PCRA court addressed this
particular contention, we note that “[i]n Pennsylvania, if the testimony of a
witness who previously invoked the Fifth Amendment becomes available after
the verdict, that testimony constitutes after-discovered evidence.”
Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa.Super. 2010).

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Commonwealth v. Small, ---A.3d----, 2018 WL 3453769, at *9 (Pa. July

18, 2018). The evidence must also be producible and admissible. Id. A

petitioner must prove each element in order to receive a new trial. Id.

       In regards to whether a previously unavailable witness’s testimony is

likely to change the outcome at a new trial, “a court should consider the

integrity of the alleged after-discovered evidence, the motive of those offering

the evidence, and the overall strength of the evidence supporting the

conviction.” Padillas, 997 A.2d at 365. Where newly available testimony is

not exculpatory, it does not qualify for relief under the PCRA. Commonwealth

v. Bond, 819 A.2d 33, 49 (Pa. 2002). In Commonwealth v. Bond, the

defendant’s co-defendant did not testify at their joint trial. Id. The co-

defendant’s pre-trial statement to police, which implicated the defendant, was

not admitted as evidence. Id. at 49-50. After trial, the co-defendant signed

an affidavit recanting his former statement and stating that he has no

knowledge regarding the defendant’s involvement in the crime. Id. The

defendant filed a PCRA petition claiming that the recantation statement

constituted after-discovered evidence under Section 9543(a)(2)(vi). 6 Id. The

Supreme Court affirmed the PCRA court’s denial of relief, as the affidavit

professing no knowledge of the crime was not exculpatory, and, because the

co-defendant’s pre-trial statement had not been admitted as evidence at trial,

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6In Bond, the PCRA court held an evidentiary hearing, but the defendant did
not call the co-defendant to testify. Bond, 819 A.2d at 49.



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it had not contributed to the evidence establishing the defendant’s guilt. Id.

at 50.7

       Here, the PCRA court reasoned that Walton’s statement did not

constitute after-discovered evidence because her testimony would be unlikely

to change the outcome of the trial. See PCRA Court Opinion, filed June 28,

2017, at 11. The court explained that “[Walton] alleges that she ‘blacked out’

shortly after the altercation began, and only remembers seeing [Hernandez]

lying on the floor when she regained consciousness. Therefore, it is entirely

plausible that [Coit] struck and/or stabbed [Hernandez] during that time.” 8

       We agree with the PCRA court’s assessment. Although Walton’s

statement to the private investigator indicates that Hernandez was the

aggressor, it also states that Walton did not see the entirety of the fight

because she “blacked out.” Her statement does not contradict the other

evidence presented at trial supporting that Coit stabbed Hernandez, and

therefore does not exculpate Coit. Bond, 819 A.2d at 50.

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7 The Bond Court also acknowledged that the co-defendant’s recantation
undermined his credibility. Bond, 819 A.2d at 50.
8 The PCRA court’s opinion also stated that Walton’s testimony cannot
constitute after-discovered evidence because the factual content of Walton’s
eye-witness account was known to Coit at the time of trial. See PCRA Ct. Op.
at 11. However, the section of the PCRA invoked by Coit depends on the new
availability or obtainability of evidence, and not the new discovery of facts.
See 42 Pa.C.S.A. § 9543(a)(2)(vi). We caution that the “after-discovered
evidence” section should not be conflated with the “newly-discovered facts”
section of the PCRA, which, when its requirements are met, provides only an
exception to default one-year filing timing requirement. See Commonwealth
v. Cox, 146 A.3d 221, 228-30 (Pa. 2016).

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      We add, although not raised by the Commonwealth, that Coit has not

alleged that Walton would be willing to testify at a new trial, or even at a PCRA

hearing. Nor does the transcription of Walton’s statement made by Coit’s

private investigator contain any such indication. Coit has therefore failed to

carry his burden to plead that the proposed testimony is producible and

admissible. Small, ---A.3d----, 2018 WL 3453769, at *9.

      We therefore hold that the PCRA court did not err in concluding that

Walton’s testimony was unlikely to change the outcome of a new trial, and

denying relief on that basis.

                II. Ineffective Assistance - Right to Testify

      In his second issue, Coit argues that the PCRA court erred in denying

his request for an evidentiary hearing to determine whether his counsel

provided ineffective assistance when advising Coit not to testify at trial.

According to Coit, his counsel advised him not to testify by saying, “[Y]ou

already won, don’t F--- it up,” and the argument between Coit and his attorney

on this point “was so loud that the trial court had to call a recess and tell [Coit]

and trial counsel to relax.” Coit’s Br. at 9. Coit alleged that he “was emotionally

and mentally inc[apaci]tated from the shock of embarrassment that his

defense trial counsel would raise her voice and yell at [him] in f[ro]nt of the

trial judge, in front of the A.D.A. and others in the court room[.]” Pro Se PCRA




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Pet., 10/8/14, at 38.9 Coit argues that his attorney bullied him into not

testifying, which rendered his decision to remain silent involuntary; his

attorney had no reasonable basis for bullying Coit when advising him not to

testify; and he was prejudiced because he was denied a constitutional right

and an opportunity to prove his innocence. Coit argues that counsel’s

ineffectiveness is a matter of fact which required an evidentiary hearing.

        The PCRA court reviewed the trial colloquy between Coit and counsel10

regarding his right to testify, and renewed its record finding that Coit’s waiver

of his right to testify was intelligent, knowing, and voluntary. See PCRA Ct.

Op. at 6-7.

        A petitioner is eligible for relief under the PCRA when he pleads and

proves by a preponderance of the evidence that his conviction resulted from

ineffective assistance of counsel. See 42 Pa.C.S.A. § 9543(a)(2)(ii). A PCRA

petitioner will only prevail on a claim that trial counsel was ineffective through

pleading and proving each of the following: “(1) the underlying legal claim is

of arguable merit; (2) counsel’s action or inaction lacked any objectively

reasonable basis designed to effectuate his client’s interest; and (3) prejudice,

to the effect that there was a reasonable probability of a different outcome if


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9 The allegations in Coit’s pro se Petition were incorporated into each
counseled Amended Petition thereafter. See Amended Pet., 3/22/16, at ¶ 3;
Second Supp. Amended Pet., 5/10/16, at ¶ 3; Third Suppl. Amended Pet.,
6/20/16, at ¶ 3.

10   The colloquy was given to both Coit and Walton by Walton’s counsel.

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not for counsel’s error.” Commonwealth v. Grove, 170 A.3d 1127, 1138

(Pa.Super. 2017). A failure to plead or prove any prong will defeat an

ineffectiveness claim. Id. (quoting Commonwealth v. Simpson, 66 A.3d

253, 260 (Pa. 2013)).

      “[W]here a defendant voluntarily waives his right to testify after a

colloquy, he generally cannot argue that trial counsel was ineffective in failing

to call him to the stand.” Commonwealth v. Rigg, 84 A.3d 1080, 1086

(Pa.Super. 2014). When an ineffectiveness claim is based on counsel’s advice

to the defendant regarding his constitutional right to testify at trial, the

defendant “must demonstrate either that counsel interfered with his right to

testify, or that counsel gave specific advice so unreasonable as to vitiate a

knowing    and   intelligent   decision   to   testify   on   his   own   behalf.”

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa.Super. 2013) (quoting

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000)).

      We agree with the PCRA court that the record reflects that Coit was

advised of his absolute right to testify, acknowledged that no one could

prevent him from testifying, agreed that it was his “firm decision” not to

testify, and stated that no one forced or threatened him not to testify. See

N.T. 149-53. Moreover, the factual allegations made by Coit—that he was

verbally reprimanded in the courtroom, and was advised not to testify because

he had “already won” his case—do not demonstrate either an interference with




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Coit’s decision not to testify, or constitute advice so unreasonable as to render

his decision involuntary, especially in light of the colloquy.

       As the record supports the PCRA court’s finding that Coit’s decision not

to testify was knowing, intelligent, and voluntary, and Coit raised no issue of

material fact which necessitated an evidentiary hearing, we affirm the PCRA

court’s finding that his counsel did not provide ineffective assistance of counsel

as it pertains to this issue and affirm the court’s denial of relief.

         III. Ineffective Assistance – Failure to Obtain Evidence

       In his third issue, Coit argues that the PCRA court erred in denying him

an evidentiary hearing to prove that his trial counsel was ineffective for failing

to secure a copy of the surveillance video of the incident, which Coit claims

would have proven that he was acting in self-defense. Coit asserts that the

Commonwealth inadvertently lost the video, and states, “The Commonwealth

has admitted in filings before the Trial/PCRA Court that through inadvertence

it lost the tape prior to trial.” Coit’s Br. at 12.11 Coit argues that his counsel

had no reasonable basis “not to secure the surveillance tape of the incident as

soon as possible,” and that Coit was prejudiced by counsel’s failure to secure

the video because it would have established his innocence. Coit’s Br. at 12.

       Coit framed this issue differently before the PCRA court. According to

Coit’s pro se Petition, the prosecutor brought up the video at the preliminary


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11 Coit does not specify in which filings the Commonwealth made these
purported admissions, and none appear in the certified record.

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hearing on April 27, 2010, and the video was also discussed in police reports

and other pre-trial documents, but his counsel did not request or subpoena

the video, or file a motion to compel the Commonwealth to produce it, in the

year leading to trial. See Pro Se PCRA Pet., 10/8/14, at 30-31, 39-45. Coit

alleged that he asked counsel where the video was, and counsel responded

that the Commonwealth had informed her that the video “had some minor

damage or some static or something,” and so it was not entered into evidence

at trial. Id.12

       Given the foregoing, Coit’s argument on appeal that his counsel was

ineffective for failing to secure the video before it was “lost” by the

Commonwealth is waived for Coit’s failure to raise it before the PCRA court.

See Pa.R.A.P. 302(a). Regarding Coit’s argument that counsel was ineffective

for failing to secure the video prior to it being damaged, as he pled to the

PCRA court in his original Petition, Coit presents no authority to support the

idea that when evidence in the Commonwealth’s possession is damaged or

destroyed, defense counsel should be found ineffective for failing to secure

the evidence prior to its loss. Coit does not include even minimal discussion

regarding counsel’s duties to secure evidence. We decline to act as Coit’s

counsel and make this argument for him, and we therefore affirm the PCRA



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12The allegations in Coit’s pro se Petition were incorporated to each counseled
Amended Petition thereafter. See note 9, supra. Coit’s counseled Amended
Petitions did not separately reiterate this issue.

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court’s denial of relief on this issue. See Pa.R.A.P. 2119(a) (each portion of

the argument section of brief shall include “such discussion and citation of

authorities as are deemed pertinent”); Commonwealth v. Johnson, 985

A.2d 915, 924 (Pa. 2009) (“[W]here an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is

waived”).

                 IV. Ineffective Assistance – Brady Violation

       In his fourth and final issue, Coit argues that his trial counsel was

ineffective for stipulating that the surveillance video—which Coit now claims

had been lost by the Commonwealth—would not be mentioned during trial,

and for failing to request an instruction informing the fact-finder that it could

infer that the video would have been unfavorable to the Commonwealth.

       We find this claim to be waived as well, as Coit’s argument differs from

what he presented to the PCRA court. In his pro se Petition, Coit argued a

somewhat similar issue: that counsel was ineffective for failing to raise a

Brady13 violation when the Commonwealth did not provide defense counsel

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13 Brady v. Maryland, 373 U.S. 83 (1963), held that the prosecution violates
the 14th Amendment when it fails to turn over any exculpatory evidence,
irrespective of whether it acted in good or bad faith. It has since been
established that where the Commonwealth destroys merely potentially useful,
rather than exculpatory, evidence before the defense has an opportunity to
examine it, the Commonwealth does not violate due process unless acting in
bad faith. Commonwealth v. Snyder, 963 A.2d 396, 404 (Pa. 2009).



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with a copy of the video.14 See Pro se Pet. at 32-33, 43-44. In contrast, in his

Second Supplemental Amended Petition, Coit raised a Brady violation by the

Commonwealth, but did not allege ineffectiveness of counsel in relation to it.

Now on appeal, Coit does not argue that his counsel should have raised a

Brady violation, or suggest whether the Commonwealth acted in bad faith.

Instead, Coit argues that counsel should have requested jury instructions, an

argument which he did not present to the PCRA court. Thus, it is waived. See

Pa.R.A.P. 302(a).

       Were this issue not waived, we would find it meritless. Although Coit

provides no pertinent discussion on when jury instructions are appropriate,

according to Pennsylvania Suggested Standard Criminal Jury Instruction

3.21(B)(2), “the jury is allowed to draw a common-sense inference that [an]

item would have been evidence unfavorable to [a] party” when “there is no

satisfactory explanation for [that] party’s failure to produce an item,” and (1)

“the item is available to that party and not the other”; (2) “it appears the item

contains or shows special information material to the issue”; and (3) “the item

would not be merely cumulative evidence.” Pa.S.S.C.J.I. 3.21(B)(2)15; see

also Commonwealth v. Cristina, 391 A.2d 1307, 1312 (Pa. 1978) (applying


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 The allegations in Coit’s pro se Petition were incorporated to each counseled
14

Amended Petition thereafter. See note 9, supra.

15Although the standard jury instructions are not controlling, we review them
when the trial court relies upon them. Commonwealth v. Tilley, 595 A.2d
575, 583 (Pa. 1991).

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similar standard for missing witness instructions to missing evidence issue).

In his pro se Petition, Coit alleged that the video was damaged, and in his

appellate brief, he alleges that it was lost—Coit did not assert that the video

was available to the Commonwealth at the time of trial, as required by the

first prong of the above test. We therefore hold that the PCRA court did not

err in denying Coit relief on this issue.

      For all of the foregoing reasons, we affirm the order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/18




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