J-S18039-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GARY L. COLEMAN                            :
                                               :
                       Appellant               :   No. 1298 MDA 2019

              Appeal from the PCRA Order Entered May 14, 2019
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0001183-2015


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                 FILED: MAY 11, 2020

        Appellant Gary L. Coleman appeals from the order of the Court of

Common Pleas of Lycoming County denying Appellant’s petition pursuant to

the Post-Conviction Relief Act (PCRA).1 Appellant argues that the PCRA court

erred in rejecting his claim that trial counsel was ineffective in failing to

request a jury instruction on justification. We affirm.

        The factual history of this case has been summarized as follows:

        The two victims in this case, Jason Allen (“Allen”), and Jordan
        Anderson Royal, went to Anne's Tavern with Christopher Allen and
        Joshua King around 11 p.m. on July 4, 2015. Jason Allen and
        Joshua King are brothers, Christopher Allen is their cousin, and
        Jordan Anderson Royal is their friend. At Anne's Tavern, Jason
        Allen played pool. While playing pool, Jason Allen greeted Angela
        Di[M]arco, an acquaintance from school, who he grew up with and
        with whom he was friendly. Angela Di[M]arco is [Appellant's]
        fiancé[e] and mother of [Appellant's] two young children.
____________________________________________


*   Former Justice specially assigned to the Superior Court.
1   42 Pa.C.S.A. §§ 9541-9546.
J-S18039-20


     [Appellant] observed Jason Allen speaking to Di[M]arco and
     concluded that Allen said something that Di[M]arco did not like.
     [Appellant] and Allen talked with each other about what Allen may
     have said to Di[M]arco. While body language signaled discord
     between [Appellant] and Allen, they did not yell or argue. The
     conversation ended and Allen resumed playing pool.

     As Allen was taking a shot at pool, [Appellant] calmly walked
     around him and smashed a glass beer mug over Allen's head with
     such force that it broke into pieces. [Allen] was lining up the cue
     ball to take his next shot when he heard and felt glass breaking
     over him. [Appellant] then pushed Allen into a corner, swinging at
     him, kicking him, [and] striking him with pool sticks and chairs on
     Allen's face, back and stomach area. Multiple people blocked
     assistance to Allen and other people joined in striking Allen. After
     the altercation, Allen was the only individual observed bleeding.
     [Appellant] was seen striking Allen more than five times. As
     [Appellant] was leaving Ann[e]'s Tavern, [Appellant] struck
     Jordan Anderson Royal [on] the right side of his body. After
     [Appellant] struck Royal, Royal fell to the ground. Once on the
     ground, [Appellant] and others kicked and stomped on Royal's
     right side of his torso.

     Allen lost a lot of blood and required about 30–40 stitches. Prior
     to stitching his wounds, medical staff pulled out pieces of glass
     from Allen. Medical records indicate that Allen suffered “a minor
     closed head injury, no concussion, multiple deep lacerations to the
     right ... periorbital area and the right cheek area,” and noted a
     “foreign body present, complicated repair.” Medical staff advised
     Allen that he may have “a few small pieces of glass left behind.”
     In his testimony, Allen rated his pain level as a 9 on a scale of 1
     to 10, with 10 being “the most extreme amount of pain[,]” lasting
     for about three to four days after the assault. Allen suffered
     scarring on his side and back from the pool stick or chairs. Allen
     suffered swelling to the face and mouth area of the jaw and inside
     his lip. Allen suffered permanent scarring on his face and body.
     Allen was off work for two weeks. Allen endured eye twitching for
     a period of about four to six months and double vision of the right
     eye for a couple of months. Allen increased visits to the
     chiropractor. As a result of his injuries, Allen stopped playing
     semi-pro football for a couple of weeks and now uses a special
     padded helmet when playing football.




                                    -2-
J-S18039-20



Commonwealth v. Coleman, 69 MDA 2017, 2017 WL 3268516, at *1–2

(Pa.Super. Aug. 1, 2017) (unpublished memorandum) (quoting Trial Court

Opinion (T.C.O.), 4/5/17, at 3–5 (citations to notes of testimony omitted; one

set of brackets in original)).

       After Appellant was charged in connection with these assaults and

proceeded to trial, a jury convicted Appellant of two counts of aggravated

assault, two counts of simple assault, possessing an instrument of crime, and

disorderly conduct. On December 9, 2016, the trial court sentenced Appellant

to an aggregate term of 92 to 184 months of imprisonment. On August 1,

2017, this Court affirmed the judgment of sentence and on February 6, 2018,

our Supreme Court denied Appellant’s petition for allowance of appeal.

       On March 12, 2018, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel, who subsequently filed an amended petition.          On

February 4, 2019, the PCRA court held an evidentiary hearing. On February

19, 2019, the PCRA court judge, the Honorable Richard A. Gray, issued an

order and opinion, notifying Appellant of his intent to dismiss the PCRA

petition.2 On May 14, 2019, the Honorable Nancy L. Butts issued a final order

in this case dismissing Appellant’s petition and informing him of his right to

appeal. On June 7, 2019, Appellant filed this timely appeal.

____________________________________________


2 Pennsylvania Rule of Criminal Procedure 907 requires the PCRA court to
notify the petitioner of its intent to dismiss the petition without a hearing if
the PCRA court is satisfied that there are no genuine issues of material fact
and that the petitioner is not entitled to post-conviction collateral relief. See
Pa.R.Crim.P. 907(1).

                                           -3-
J-S18039-20



      Our standard of review is well-established:

      [o]ur review of the grant or denial of PCRA relief is limited to
      examining 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. Cox, 636 Pa. 603, 146 A.3d 221,
      226 n.9 (2016). The PCRA court's credibility determinations, when
      supported by the record, are binding on this Court; however, we
      apply a de novo standard of review to the PCRA court's legal
      conclusions. Commonwealth v. Burton, 638 Pa. 687, 158 A.3d
      618, 627 n.13 (2017).

Commonwealth v. Small, 647 Pa. 423, 440–41, 189 A.3d 961, 971 (2018).

      The sole issue Appellant raises on appeal is whether the PCRA court

erred in denying his claim that counsel was ineffective in failing to request a

particular jury instruction. We are guided by the following principles:

         [a]s originally established by the United States Supreme
         Court in Strickland v. Washington, 466 U.S. 668, [104
         S.Ct. 2052, 80 L.Ed.2d 674] (1984), and adopted by
         Pennsylvania appellate courts, counsel is presumed to have
         provided effective representation unless a PCRA petitioner
         pleads and proves all 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 at trial if not for counsel's error.

      Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014)
      (citations omitted). “A failure to satisfy any prong of the
      ineffectiveness test requires rejection of the claim of
      ineffectiveness.” Commonwealth v. Daniels, 600 Pa. 1, 963
      A.2d 409, 419 (2009).

Commonwealth v. Selenski, ___A.3d___, 1062 EDA 2019, 2020 WL

544091, at *4 (Pa.Super. Feb. 4, 2020).




                                     -4-
J-S18039-20



      Specifically, Appellant claims trial counsel was ineffective in failing to

request a jury instruction on justification to require that the Commonwealth

establish that Appellant did not act in self-defense. Appellant points to his

trial testimony in which he stated that he attacked the victim in self-defense

after the victim threatened to kill him.

      However, we agree with the PCRA court’s finding that Appellant’s claim

has no arguable merit as the evidence presented at trial did not support a self-

defense claim. Our Supreme Court has explained:

      To prevail on a justification defense, there must be evidence that
      the defendant “(a) ... reasonably believed that he was in imminent
      danger of death or serious bodily injury and that it was necessary
      to use deadly force against the victim to prevent such harm; (b)
      that the defendant was free from fault in provoking the difficulty
      which culminated in the slaying; and (c) that the [defendant] did
      not violate any duty to retreat.” Commonwealth v. Samuel,
      527 Pa. 298, 590 A.2d 1245, 1247–48 (1991); see 18 Pa.C.S. §
      505; see also Commonwealth v. Harris, 550 Pa. 92, 703 A.2d
      441, 449 (1997). “The Commonwealth sustains its burden [of
      disproving self-defense] if it proves any of the following: that the
      slayer was not free from fault in provoking or continuing the
      difficulty which resulted in the slaying; that the slayer did not
      reasonably believe that [he] was in imminent danger of death or
      great bodily harm, and that it was necessary to kill in order to
      save [him]self therefrom; or that the slayer violated a duty to
      retreat or avoid the danger.” Commonwealth v. Burns, 490 Pa.
      352, 416 A.2d 506, 507 (1980).

Commonwealth v. Sepulveda, 618 Pa. 262, 289, 55 A.3d 1108, 1124

(2012) (citations omitted).

      The PCRA court emphasized that the prosecution had presented video

evidence at trial showing that Appellant was the initial aggressor in the assault

of the victim. While Appellant repeatedly claimed that the victim had made


                                      -5-
J-S18039-20



verbal threats to kill him, Appellant admitted that the victim did not raise a

fist to him, was not threatening him at the time of the assault, and was merely

playing pool when Appellant attacked him. Instead, Appellant broke a beer

mug over the victim’s head, pushed him into a corner, and hit him multiple

times with pool sticks and chairs. As such, Appellant’s testimony failed to show

that he faced an imminent harm, but rather, showed that Appellant provoked

an attack on an unsuspecting victim.

      As Appellant failed to show that he was entitled to a jury instruction on

self-defense, trial counsel cannot be found ineffective for not requesting a jury

instruction on self-defense. See Commonwealth v. Philistin, 617 Pa. 358,

379, 53 A.3d 1, 12–13 (2012). Accordingly, we conclude that the trial court

did not err in finding Appellant’s ineffectiveness claim to be meritless and

denying his PCRA petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:05/11/2020




                                      -6-
