J-S53011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

KENNETH COLEMAN,

                          Appellant                   No. 2263 EDA 2016


             Appeal from the PCRA Order Entered June 21, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1201021-2004


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 11, 2017

      Appellant, Kenneth Coleman, appeals pro se from the post-conviction

court’s June 21, 2016 order denying his timely-filed petition under the Post

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

review, we affirm.

      Appellant’s case returns to this Court after we vacated the PCRA

court’s initial denial of Appellant’s at-issue petition, and remanded for further

proceedings.   In that first disposition, we offered a brief summary of the

facts and procedural history of Appellant’s case, as follows:

             Appellant was accused of stabbing two individuals, Loraine
      Patterson (Patterson) and Joseph Leary (Leary), during a fight in
      Victor’s Tavern in Philadelphia on the evening of November 5,
      2004. The case proceeded to a jury trial, during which Appellant
      testified that he acted in self-defense, out of fear that Leary was
      going to hurt him. Appellant was found guilty of felony-two
      aggravated assault with respect to Patterson, felony-one
      attempted murder and felony-one aggravated assault with
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     respect to Leary, and possessing an instrument of crime. He was
     sentenced on October 7, 2005, to an aggregate of 17 1/2 to 35
     years’ incarceration.

           On March 9, 2009, a panel of this Court affirmed
     Appellant’s judgment of sentence, but remanded to correct a
     conviction that should have merged for sentencing. See
     Commonwealth v. Coleman, 972 A.2d 549 (Pa. Super. 2009)
     (unpublished memorandum), appeal denied 908 A.2d 605 (Pa.
     2009). Appellant’s sentence was corrected by the trial court on
     May 6, 2010, although his aggregate term of incarceration
     remained the same.

            On July 29, 2010, Appellant timely filed a pro se PCRA
     petition in which he claimed that “trial/appellate counsel [failed]
     to raise a claim of prosecutorial misconduct [under Brady2] on
     direct appeal for withholding exculpatory evidence (a
     surveillance tape) prior to and during trial (resulting in a
     discovery violation).” He also listed an eyewitness, Mary Boone,
     who [sic] he claimed should have been called to testify and
     bolster his claims of self-defense.
        2   Brady v. Maryland, 373 U.S. 83 (1963).

        On June 29, 2011, following a Grazier3 hearing, Appellant
     was granted permission to proceed pro se, and John Cotter,
     Esquire was appointed as stand-by counsel.
        3   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

         Appellant filed multiple motions, most of which centered
     around his claim that trial and appellate counsel failed to raise a
     claim of prosecutorial misconduct based on his contention that
     the Commonwealth suppressed video/audio surveillance footage
     of Victor’s Tavern in violation of Brady. To those motions,
     Appellant attached a Philadelphia Police Department Complaint
     or Incident Report[, completed by Officer Seth Stellfox and]
     issued following the incident in question, which contains the note
     “surveillance tape recovered.” He also included a letter by his
     trial (and appellate) counsel Douglas N. Stern, Esquire, dated
     November 1, 2005, informing Appellant that his direct appeal
     was filed and stating[,] “I am also trying to see if I can obtain a
     copy of the videotape if one exists.”

     On April 2, 2013, the PCRA court sent Appellant notice pursuant
     to Pa.R.Crim.P. 907, informing him that it determined that his

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      PCRA issues were without merit. On May 31, 2013, Appellant’s
      PCRA Petition was dismissed by the PCRA court. Appellant filed
      a timely notice of appeal on June 10, 2013.

Commonwealth        v.   Coleman,     No.   1791   EDA   2013,   unpublished

memorandum at 1-3 (Pa. Super. filed April 8, 2014) (one footnote omitted)

(hereinafter, “Coleman I”).

      On appeal in Coleman I, Appellant contended, inter alia, that the

PCRA court had erred by denying his petition without a hearing.           The

Coleman I panel agreed, concluding that Appellant had demonstrated that

genuine issues of material fact existed regarding both of his ineffectiveness

claims.    For instance, pertaining to Appellant’s ineffectiveness claim

involving the video surveillance tape, the Coleman I panel found that “[t]he

existence and availability of the videotape … is dispositive[,]” and that

Appellant had presented “evidence to support [his] claim that the videotape

exists, as demonstrated by the notation contained in the criminal complaint

paperwork filed on the night of the incident.” Id. at 5. While “the district

attorney informed the PCRA court that he had investigated the matter[,]”

and no tape had been produced by the Commonwealth, the Coleman I

panel concluded that Appellant was entitled to an “opportunity to litigate

fully this issue at a hearing.” Id.

      Likewise, the Coleman I panel also decided that a hearing was

required on Appellant’s claim that Attorney Stern ineffectively failed to call

Mary Boone to the stand at trial.      The panel noted that Appellant had

attached to his petition an affidavit from Boone, which demonstrated that


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her “testimony is material to Appellant’s defense and, if believed, could have

had a substantial impact on the verdict.” Id. at 6. For these reasons, the

Coleman I panel remanded for an evidentiary hearing on both of Appellant’s

ineffectiveness claims, and it also suggested that a new judge be appointed,

in light of Appellant’s argument on appeal that the PCRA court should have

recused itself. Id. at 8.

      On remand, Appellant continued to represent himself, with Attorney

Cotter as standby counsel. See PCRA Court Opinion (PCO), 6/21/16, at 2

n.1. A new judge was appointed to preside over the PCRA hearing, and that

bifurcated proceeding took place on December 15, 2014, April 9, 2015, and

October 13, 2015.     The court also accepted an amended petition filed by

Appellant on August 6, 2015.      After the hearing concluded, the case was

continued for submission of briefs. On November 5, 2015, Appellant filed his

pro se brief, and on December 4, 2015, the Commonwealth filed its

response. On December 14, 2015, the Commonwealth also filed a motion to

dismiss Appellant’s petition.   On June 21, 2016, the PCRA court issued an

order denying Appellant’s petition, accompanied by an opinion entitled,

“Findings of Fact and Conclusions of Law.”

      Appellant filed a timely, pro se notice of appeal. It does not appear

that the PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) statement,

and the court relied on its “Findings of Fact and Conclusions of Law” in lieu

of a Rule 1925(a) opinion.      Herein, Appellant presents two issues for our

review:

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      [I.] []Whether the PCRA court committed an abuse of discretion,
      by misapplying or overriding the law, when it found that[]
      Appellant was not prejudiced by counsel’s ineffectiveness, (acts
      and omissions), as they relate to the Commonwealth’s failure to
      disclose a []surveillance tape[] recovered from the scene, which
      violated Appellant’s rights to a fair trial and[] Appellant’s rights
      to procedural and substantive due process?[]

      [II.] []Whether the PCRA court committed an abuse of discretion
      by[] misapplying or[] overriding the law, when it held that[]
      counsel was not ineffective for failing to[] investigate, and
      present, the []eyewitness[] testimony of []Mary Boone[], who
      was available and willing to testify on Appellant’s behalf had she
      been contacted, and in doing so, violated Appellant’s rights to a
      fair trial[] under the Sixth Amendment?[]

Appellant’s Brief at 7 (unnecessary capitalization omitted).

      We begin by recognizing that “[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 directed that the

following standards apply:

      [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.” 42
      Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
      rebut that presumption, the PCRA petitioner must demonstrate
      that counsel’s performance was deficient and that such
      deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
      Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing

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      Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
      Pennsylvania, we have refined the Strickland performance and
      prejudice test into a three-part inquiry. See [Commonwealth
      v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
      prove counsel ineffective, the petitioner must show that: (1) his
      underlying claim is of arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) the petitioner
      suffered actual prejudice as a result. Commonwealth v. Ali,
      608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
      prove any of these prongs, his claim fails.” Commonwealth v.
      Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
      omitted).      Generally,   counsel’s   assistance    is  deemed
      constitutionally effective if he chose a particular course of
      conduct that had some reasonable basis designed to effectuate
      his client's interests. See Ali, supra. Where matters of strategy
      and tactics are concerned, “[a] finding that a chosen strategy
      lacked a reasonable basis is not warranted unless it can be
      concluded that an alternative not chosen offered a potential for
      success substantially greater than the course actually pursued.”
      Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
      quotation marks omitted). To demonstrate prejudice, the
      petitioner must show that “there is a reasonable probability that,
      but for counsel’s unprofessional errors, the result of the
      proceedings would have been different.” Commonwealth v.
      King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
      quotation marks, and citation omitted). “‘[A] reasonable
      probability is a probability that is sufficient to undermine
      confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
      86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
      598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
      U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

      Within Appellant’s first issue, he presents three distinct claims of

ineffectiveness, all involving his trial counsel’s handling of missing videotape

surveillance footage from Victor’s Tavern on the night of the stabbing.      In

regard to the missing video, the PCRA court made the following findings of

fact, based on the testimony and evidence presented at the PCRA hearing:



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     34. Assistant District Attorney Mark Levenberg was the trial
     prosecutor of [Appellant] in 2005, at which time he had been a
     Philadelphia Assistant District Attorney for approximately five
     years. N.T. 12/15/14, p. 24.

     35. [ADA] Levenberg was responsible for           gathering   and
     presenting the available evidence. [Id. at] 25.

     36. [ADA] Levenberg testified that he reviewed his file, which
     included a 486 that mentions a videotape, but there was no
     videotape. [Id. at] 24, 42.
       6  “48” is shorthand for Philadelphia Police Department
       for[m] 75-48, also knowing as a Complaint/Incident
       [Report]. N.T. 7/5/05, pp. 11-12.

     37. The 48 appears in the record as Exhibit A to the PCRA
     Petition.

     38. The 48 was prepared by Officer Stellfox, who is deceased.
     N.T. 12/15/14, p. 22.

     39. [ADA] Levenberg presented Stellfox as a Commonwealth
     witness at trial. N.T. 7/5/05, pp. 4-13, 15-16.

     40. [ADA] Levenberg introduced the 48[] prepared by Stellfox
     into evidence at trial. N.T. 7/5/05, pp. 11-12.

     41. The 48 states, in pertinent part, “Surveillance           Tape
     recovered.” Exhibit A to the PCRA Petition.

     42. There was no other mention of a videotape in the file, and
     [ADA] Levenberg never had or saw a video in this case. N.T.
     12/15/14, pp. 25-26, 28.

     43. [ADA] Levenberg testified he had no knowledge of any video
     and did not recall having a conversation with the case detectives
     about a video. [Id. at] 25-27, 33.

     44. [ADA] Levenberg did make inquiry [during the post-
     conviction proceedings] about the existence of the mentioned
     surveillance video.

     45. [ADA] Levenberg did not have any conversation with
     Douglas Stern, [Appellant’s] trial counsel, about the video,
     although the 48 was introduced at trial and Stellfox, the officer
     who prepared the 48, testified at trial. [Id. at] 28-30.


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     46. [Attorney] Stern … testified at the hearing before this Court.
     N.T. 4/9/15.

     47. [Attorney] Stern was notably hostile during his testimony
     while being questioned by [Appellant], who is a pro se litigant.

     48. [Attorney] Stern was exceedingly defensive during his
     testimony.

     49. [Attorney] Stern was not entirely credible.

     …

     61. [Attorney] Stern never received or saw a video.          N.T.
     4/9/15, pp. 8-9, 27-29.

     62. [Attorney] Stern did not speak to ADA Levenberg about the
     surveillance tape.

     63. [Attorney] Stern did not make a written request of the
     Commonwealth for the surveillance tape.

     64. [Attorney] Stern did not file a motion or otherwise seek
     [c]ourt assistance in obtaining the surveillance tape.

     65. [Attorney] Stern did not know if there was a tape or, if there
     was, whether it was ever in the Commonwealth’s possession or
     what was on it. [Id. at] 32-33, 35.

     66. When cross-examining … Officer Stellfox, [Attorney] Stern
     asked if anyone took pictures of the crime scene, to which the
     officer responded in the negative. N.T. 7/5/05, pp. 14-15.

     67. [Attorney] Stern also raised the absence of crime scene
     pictures in his closing [argument]. [Id. at] 163-164.

     68. [Attorney] Stern did not question any witnesses about the
     missing surveillance tape at trial. N.T. 7/5/05, 7/6/05.

     69. In particular, [Attorney] Stern did not ask [Joyce] Smith,
     the Victor’s Tavern Bar Manager, or Officer Stellfox, who
     prepared the 48, about the surveillance tape. N.T. 7/6/05, pp.
     52-60; 7/5/05, pp. 14-15.

     70. [Attorney] Stern did not argue the missing surveillance video
     in his closing to the jury. [N.T.] 7/5/05, pp. 152-170.

     71. The first time [Attorney] Stern indicated that he would seek
     the surveillance video was on November 1, 2005, after

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     [Appellant] had been convicted. N.T. 4/9/15, pp. 28-29; Exhibit
     B to PCRA Petition.

     72. [Attorney] Stern was not aware of the missing surveillance
     video until after [Appellant] had been convicted.

     73. Detective Terrence Anderson was interviewed by the defense
     on July 6, 2015.

     74. After reviewing the 75-48 and 75-498 forms, Detective
     Anderson “vaguely remember[ed] the case but nothing specific”
     and does “not remember any video surveillance.”
        8 “75-49” is the Philadelphia Police Department form
        number for the Investigation Report.

     75. Retired Police Officer Terrence Davis, the assigned
     investigator on this matter, was interviewed by the defense on
     August 13, 2015. Carey Investigations, Investigative Report,
     August 13, 2015.

     76. Officer Davis reviewed the 75-48 and 75-49 forms, but does
     not remember the case or a videotape. Carey Investigations,
     Investigative Report, August 13, 2015.

     77. If he had received a videotape, Officer Davis would have
     noted it on the 75-49 he prepared.      Carey Investigations,
     Investigative Report, August 13, 2015.

     78. Officer Stellfox recovered a surveillance video from Victor’s
     Tavern. Exhibit A to the PCRA Petition.

     79. There was no evidence adduced that the Victor’s Tavern
     surveillance video recording system would have captured the
     altercation involving [Appellant], Leary and Patterson.

     80. The surveillance video was not delivered to Detective
     Anderson or the assigned investigator, Police Officer Davis.

     81. The surveillance video was never in the possession of the
     prosecutor.

     82. There is no evidence, whether direct, testimonial or
     circumstantial[,] regarding the content of the surveillance video.

     83. There is no evidence that the surveillance video was
     materially exculpatory.



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      84. There is no evidence that the police or the prosecution by
      their conduct indicated that the surveillance video could form a
      basis for exonerating [Appellant].

      85. There is no evidence that the police or prosecution willfully
      lost or discarded the surveillance video.

      86. There is no evidence regarding the circumstances of the
      disposition of the surveillance video.

PCO at 5-10.

      In Appellant’s first ineffectiveness claim pertaining to the video, he

contends that Attorney Stern should have argued that the Commonwealth

committed a Brady violation by not turning over to the defense the

videotape that was noted in Officer Stellfox’s Complaint or Incident report

(i.e., the ‘48’ form).   The PCRA court rejected this claim, reasoning that

“[t]here is no evidence that the surveillance tape contained materially

exculpatory evidence.” PCO at 11.

      We ascertain no error in the court’s decision. Our Supreme Court has

explained that,

      [t]o establish a Brady violation, an appellant must prove three
      elements:

         (1) the evidence at issue was favorable to the accused,
         either because it is exculpatory or because it impeaches;
         (2) the evidence was suppressed by the prosecution, either
         willfully or inadvertently; and (3) prejudice ensued.

      The burden rests with the appellant to prove, by reference to the
      record, that evidence was withheld or suppressed by the
      prosecution. The evidence at issue must have been material
      evidence that deprived the defendant of a fair trial. Favorable
      evidence is material, and constitutional error results from its
      suppression by the government, if there is a reasonable
      probability that, had the evidence been disclosed to the defense,
      the result of the proceeding would have been different. A

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       reasonable probability is a probability sufficient to undermine
       confidence in the outcome.

Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (internal citations

and quotation marks omitted).

       In this case, the PCRA concluded that Appellant failed to establish that

the Commonwealth committed a Brady violation because he had not

produced any evidence establishing what the videotape showed, or that it

was exculpatory.       The record supports this determination.   We recognize

that it would be difficult, if not impossible, for Appellant to present evidence

of what exactly was on the tape, because Officer Stellfox is deceased and

the tape is missing. Nonetheless, we agree with the PCRA court that, at the

very least, Appellant could have presented evidence that a camera in Victor’s

Tavern was recording at the time of the incident, and that it would have

captured the area of the bar in which the altercation occurred.1           Such
____________________________________________


1 Indeed, Appellant has demonstrated that such evidence exists. Namely, he
has filed with this Court a Petition for Remand (discussed in more detail,
infra), which includes an affidavit from Kenny He, the purported owner of
Victor’s Tavern. Appellant also filed that same affidavit with the PCRA court,
in a “Motion to Include Newly-Discovered Evidence,” on April 24, 2017, after
his present appeal had been filed. In He’s affidavit, dated March 30, 2017,
He states that the Victor’s Tavern “surveillance system was fully operational,
and would have captured any, and all actions that transpired between the
patrons that were involved in the altercation.” See Appellant’s Petition for
Remand, 8/4/17, at Exhibit C. This affidavit is precisely the type of evidence
that Appellant could have offered below to raise an inference that the
missing videotape was exculpatory. However, Appellant did not present
He’s affidavit or testimony to the PCRA court during the post-conviction
proceedings; instead, he only first presented this evidence after he filed a
notice of appeal. Appellant offers absolutely no explanation, in either the
“Petition for Remand” filed with this Court or in his “Motion to Include Newly-
(Footnote Continued Next Page)


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evidence could have raised an inference that the video went missing because

it was favorable to the defense. However, Appellant failed to present any

evidence before the PCRA court to raise this inference. Accordingly, we are

compelled to agree with the court that Appellant did not demonstrate that a

Brady violation was committed by the Commonwealth. Thus, he has also

failed to establish that Attorney Stern acted ineffectively for failing to raise

such a claim.

       Second, Appellant contends that his trial counsel acted ineffectively for

not raising a Youngblood2 challenge regarding the missing videotape. Our

Supreme Court has explained that, in addition to exculpatory evidence that

must be turned over under Brady,

       [t]here is another category of constitutionally guaranteed access
       to evidence, which involves evidence that is not materially
       exculpatory, but is potentially useful, that is destroyed by the
       state before the defense has an opportunity to examine it.
       When the state fails to preserve evidence that is “potentially
       useful,” there is no federal due process violation “unless a
       criminal defendant can show bad faith on the part of the police.”
       Youngblood, 488 U.S. at 58, 109 S.Ct. 333…. Potentially useful
(Footnote Continued) _______________________

Discovered Evidence,” regarding why he could not have obtained He’s
affidavit during the PCRA proceedings. Instead, Appellant simply states that
He “was questioned about the case” on March 30, 2017, and He’s affidavit
was then obtained. Motion to Include Newly-Discovered Evidence, 4/24/17,
at 1. Appellant does not elucidate who questioned He, or why that interview
could not have been conducted earlier in these PCRA proceedings.
Consequently, we cannot consider this evidence, which is being presented
for the first time on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
2   Arizona v. Youngblood, 488 U.S. 51 (1988).



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         evidence is that of which “no more can be said than that it could
         have been subjected to tests, the results of which might have
         exonerated the defendant.” [Id.] … at 57…. In evaluating a
         claim that the Commonwealth’s failure to preserve evidence
         violated a criminal defendant’s federal due process rights, a
         court must first determine whether the missing evidence is
         materially exculpatory or potentially useful.

Commonwealth v. Chamberlain, 30 A.3d 381, 402 (Pa. 2011) (some

internal citations omitted).

         Here, the PCRA court concluded that Appellant failed to demonstrate a

Youngblood violation because he had not proven that the videotape was

discarded or destroyed in bad faith.       Again, we are compelled to agree.

Officer Stellfox is deceased, so there is no way of knowing if or why he did

not give the videotape to ADA Levenberg or any of the other investigating

officers.    Moreover, even if an inference that Officer Stellfox acted in bad

faith would suffice to establish a due process violation under Youngblood,

Appellant has failed to present any evidence that would allow us to draw

such an inference.      As discussed in relation to Appellant’s Brady claim,

Appellant did not prove, at the PCRA hearing, that the video cameras inside

the tavern actually recorded the altercation.     Therefore, we simply cannot

draw an inference that the videotape recovered by Officer Stellfox was

favorable to the defense and, therefore, the officer lost or destroyed it in bad

faith.      Accordingly, we must accept the PCRA court’s conclusion that

Attorney Stern did not act ineffectively for failing to raise a Youngblood

challenge.




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      Third, Appellant claims that Attorney Stern was ineffective for not

seeking out the videotape after seeing the notation in Officer Stellfox’s ‘48’

form, and for not cross-examining the officer and/or Joyce Smith, the

Victor’s   Tavern   bartender,   about   the   videotape.   In   rejecting   this

ineffectiveness claim, the PCRA court first concluded that counsel did act

unreasonably in these regards. See PCO at 16-17. Nevertheless, the court

found that Appellant could not demonstrate prejudice because, again, “there

is no evidence that the missing video would have been exculpatory.” Id. at

17.

      Based on our discussion above, we are constrained to agree with the

PCRA court that Appellant’s evidence was not sufficient to prove that the

videotape was exculpatory; thus, he has not demonstrated that if Attorney

Stern had sought out and acquired the tape, the outcome of the trial would

have been different. Additionally, if Attorney Stern had sought out the tape

and discovered it was missing, he could have at best cross-examined Officer

Stellfox about the missing tape to raise an inference that the tape was

destroyed or lost because it was beneficial to the defense.       However, we

cannot conclude that raising such an inference would have created

reasonable doubt and changed the jury’s verdict, as the Commonwealth’s

eyewitness testimony against Appellant was compelling.              This Court

previously summarized that evidence, as follows:

            On November 5, 2004, at about 10:15 p.m., all of the
      parties involved were inside Victor’s Tavern in Philadelphia.
      Leary, Patterson, and two male friends of Patterson were

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     together at a table near the bathrooms. Patterson and her two
     male friends [are] … gay. Appellant was sitting at a nearby table
     with another man and woman. Someone at Appellant’s table
     made remarks concerning the sexual orientation of Leary’s
     group. Leary testified that Appellant, while looking at him, said,
     “He must be gay, too.” N.T., 7/5/05, at 42. Leary replied to
     Appellant, “You must be gay.” Id. Patterson testified she heard
     her brother address someone at Appellant’s table and say,
     “Yeah, so what, they gay [sic]. They entitled to have a good time
     too [sic].” Id. at 69.

     …

            Leary testified that Appellant returned to the bar about a
     half-hour after the initial verbal exchange. Shortly thereafter, he
     and Appellant were sitting in their respective seats looking at
     each other when Appellant jumped up and ran toward him.
     Appellant started stabbing him, inflicting wounds to Leary’s
     head, chin and shoulder.         Leary lost a lot of blood, was
     hospitalized for six days, and required an operation to remove a
     portion of a broken blade from his skull. He suffered a six-inch
     scar on the left side of his head, above his ear, a two-and-one-
     half-inch scar on the right side of his chin, and a one-and-a-half-
     inch scar on top of his right shoulder. He testified that the
     attack by Appellant was unprovoked, he never put his hands on
     Appellant, and did not try to grab Appellant.

           Leary admitted that he was incarcerated at the time of trial
     for an unrelated simple assault conviction, … and he admitted to
     a previous conviction for aggravated assault in 1980. He also
     conceded he was “bigger” and heavier than Appellant. N.T.,
     7/5/05, at 55.

           Patterson testified that she was talking to a barmaid when
     the barmaid, with an expression on her face, pointed behind her.
     Patterson turned and saw Appellant standing over Leary, who
     was sitting in a chair, “stabbing him all in the neck.” Id. at 71.
     She ran to Appellant and knocked him off Leary by hitting him
     with her shoulder. They fell, and she was on top of Appellant
     when he reached over and stabbed her in the back, near her
     spine. Id. at 72. She was treated for the wound at the hospital
     and was discharged the next morning. She received five or six
     clamps in her back, resulting in a three-quarter inch scar.
     Patterson also testified that she observed Leary bleeding, and
     that she bled as a result of her wound. She stated, “There was


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     so much [blood], I kept slipping in it trying to get up.”   Id. at
     73.

            Joyce Smith, the manager of Victor’s Tavern, testified that
     she was on duty that night and recognized Appellant by sight.
     She observed Appellant speaking to a woman, whom she had
     seen previously and thought was Appellant’s wife. The woman
     left the bar, but Appellant remained. Smith was talking to some
     friends when she noticed Appellant “hitting” Leary, describing an
     overhead blow with a fist, with the bottom portion of Appellant’s
     hand hitting Leary in the head. After the assault, Appellant ran
     out of the bar, passing by Smith and enabling her to see that he
     was holding, in the same hand with which he had been hitting
     Leary, a knife by the handle, with the blade facing to his rear.
     She described the knife blade as about six inches in length,
     silver, with blood on it. She stated that there was a lot of blood
     at the scene, and that both victims had been bleeding. A police
     officer testified that, upon arriving at the scene, he observed
     Patterson bleeding from her back, and Leary bleeding profusely
     from the top of his head. He observed blood on the floor where
     Patterson lay and blood on the table and floor where Leary was
     sitting.

            When Appellant was apprehended the next day, Officer
     James Morace secured a black box-cutter with a silver screw and
     silver thumb level from Appellant’s right jacket pocket. During
     his initial interaction with the police, Appellant provided a false
     name, date of birth, and driver’s license number. Believing that
     Appellant matched the description of the assailant involved in
     the bar assault the night before, Officer Morace ascertained that
     the information provided to him by Appellant was false. He again
     asked Appellant for his name, at which time Appellant provided
     his real name. Subsequently, Appellant was arrested.

Commonwealth v. Coleman, No. 2988 EDA 2005, 2967 EDA 2005,

unpublished memorandum at 2-6 (Pa. Super. filed March 9, 2009).

     The testimony of Leary and Patterson was sufficient for the jury to

conclude that Appellant was the initial aggressor in the assault on Leary. We

recognize that Leary had a history of assaulting other individuals and was

much bigger than Appellant, and Patterson had a motive to fabricate


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because she is Leary’s sister. However, their testimony was corroborated by

a disinterested third-party, Joyce Smith, who testified that she saw Appellant

hit Leary approximately “three or four times” around Leary’s “head section.”

N.T. Trial, 7/6/05, at 40-41. Moreover, Appellant fled from the scene and

then gave police a false name, date of birth, and driver’s license number,

thus indicating his consciousness of guilt.         See Commonwealth v.

Hargrave, 745 A.2d 20, 23 (Pa. Super. 2000) (“Flight does indicate

consciousness of guilt, and a [fact-finder] may consider this evidence, ‘along

with other proof, from which guilt may be inferred.’”); Commonwealth v.

Toro, 638 A.2d 991, 998 (Pa. Super. 1994) (stating that evidence that the

defendant “use[d] different names during his contacts with police … was

relevant to the issue of [his] consciousness of guilt”).

      In light of the evidence presented by the Commonwealth at trial, we

are compelled to agree with the PCRA court that Appellant has not

demonstrated that Attorney Stern’s failure to cross-examine Officer Stellfox,

or Joyce Smith, about the missing videotape would have changed the jury’s

verdict.    We cannot know what Smith or Officer Stellfox would have said,

had trial counsel cross-examined them about the missing videotape.          If

Smith had testified that she gave the tape to police, and Officer Stellfox

could not explain the tape’s disappearance, then Attorney Stern could have

argued that the tape was lost or destroyed because it contained exculpatory

evidence.      However, we cannot conclude that there is a reasonable

probability that raising such an inference would have outweighed the

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Commonwealth’s evidence that refuted Appellant’s claim of self-defense by

demonstrating that he was the aggressor in the altercation. Therefore, we

must agree with the PCRA court that Appellant’s ineffectiveness claim is

meritless.

      Before delving into Appellant’s second issue, we will address an after-

discovered evidence claim related to the missing video surveillance tape,

which Appellant presented for the first time on appeal in his “Petition for

Remand” filed on August 4, 2017.       Therein, Appellant claims that he has

discovered new evidence in the form of a July 20, 2017 news article

describing   some   alleged,   and   some     proven,   misconduct   by   former

Philadelphia Police Detective James Pitts. According to Appellant, “Detective

Pitts was the primary [detective] on [Appellant’s] case, and [Pitts] also

prepared the formal charging statement, and the arrest report.” Petition for

Remand, 8/4/17, at 1.      Appellant also asserts that after Officer Stellfox

received the tape from Victor’s Tavern, Pitts “would have been the next

person in the chain of custody” of the videotape.        Id. at 2.   Essentially,

Appellant alleges that Pitts’ misconduct in numerous other cases indicates

that he must have destroyed the video surveillance tape in this case, and

that he did so in bad faith.     Appellant asks that this Court remand for

another PCRA hearing, wherein he can “expand the record by giving a full-

throated argument in respect to … Pitts[’] conduct in this matter as it relates

directly to the disappearance and, possible destruction of[,] the surveillance

tape recovered in this case….” Id. at 3.

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J-S53011-17



       We deny Appellant’s remand request for several reasons.        First, we

assess Appellant’s petition for remand under Pa.R.Crim.P. 720(C) (stating

“[a] post-sentence motion for a new trial on the ground of after-discovered

evidence must be filed in writing promptly after such discovery”).           Our

review of his remand request, which is based in large part on a newspaper

article, is also guided by our Supreme Court’s decision in Commonwealth

v. Castro, 93 A.3d 818 (Pa. 2014). There, the Court explained that,

       allegations in the media, whether true or false, are no more
       evidence than allegations in any other out-of-court situation.
       Nothing in these allegations even read in the broadest sense,
       can be described as “evidence,” and references to the officer
       being under investigation for misconduct contains no information
       regarding what evidence existed to substantiate this averment.
       One cannot glean from these bald allegations what evidence of
       misconduct [Castro] intended to produce at the hearing.

Id. at 825. The Castro Court also concluded that a Rule 720 motion,

       is not to serve as a preemptive means of securing a hearing that
       will itself comprise the investigation. [Castro] needed to do more
       than present an article “pointing to” allegations that if true have
       the potential to aid his cause; he needed to clearly articulate in
       his motion what evidence he would present to meet the [after-
       discovered evidence] test….[3]

____________________________________________


3 The after-discovered evidence test requires a petitioner to demonstrate
that:

       (1) the evidence could not have been obtained before the
       conclusion of the trial by reasonable diligence; (2) the evidence
       is not merely corroborative or cumulative; (3) the evidence will
       not be used solely for purposes of impeachment; and (4) the
       evidence is of such a nature and character that a different
       outcome is likely.
(Footnote Continued Next Page)


                                          - 19 -
J-S53011-17



Id. at 828.

      Here, Appellant has failed to articulate any evidence that he would

present at a hearing if we granted his petition to remand. Under Castro,

the newspaper article he attaches to his petition is not ‘evidence.’             We

recognize that, unlike in Castro, Appellant has also included in his petition a

lengthy ‘Appendix,’ which is comprised of documents that seemingly were

filed in a civil lawsuit against Detective Pitts.      Those documents include a

request for discovery, in which the plaintiff in that civil case, Nafis Pinkney,

describes at least 12 other cases in which allegations of misconduct were

lodged against Pitts, some of which have allegedly been proven. Pinkney’s

case documents also include reports by the Internal Affairs Division of the

Philadelphia Police Department, which detail allegations of misconduct

against Pitts that were subsequently deemed to be ‘sustained,’ or, in other

words proven.

      Notably, all but one of the various cases alleging misconduct by Pitts

involved accusations that he coerced statements from suspects or witnesses.

The other case alleged that Pitts physically assaulted a suspect. Thus, none

of   the   documents       accompanying        Appellant’s   Petition   for   Remand




(Footnote Continued) _______________________


Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007).




                                         - 20 -
J-S53011-17



demonstrate (or even allege) that Pitts committed the sort of misconduct

that Appellant alleges in the present case, i.e., the destruction of evidence.

      Moreover, even if the documents filed in Pinkney’s civil lawsuit against

Pitts would be admissible at a PCRA hearing, that evidence would not be

sufficient to demonstrate that Pitts committed misconduct in this case.

Appellant has offered absolutely no evidence that Pitts could have destroyed

the video surveillance tape that was recovered by Officer Stellfox.         For

instance, Appellant has not established the extent of Pitts’ involvement in

this case, or that he even had access to the at-issue tape. Appellant’s bald

claim that Pitts was the ‘primary’ investigator in his case is not supported by

anything in the record, which instead demonstrates that Philadelphia Police

Officer Davis was the “assigned investigator.”     See PCO at 9.     Moreover,

Appellant provides no documentation or citation to support his assertion that

Pitts would have been the next person in the chain of custody of the

videotape.

      In sum, Appellant has not identified any evidence that he would

present at a hearing to demonstrate the extent of Pitts’ involvement in the

investigation of this case, or that Pitts had any access to the at-issue

videotape. The ‘evidence’ of Pitts’ misconduct in other cases, alone, is not

evidence that he committed misconduct in this case.          Indeed, even an

inference of that fact is tenuous, given that the large majority of Pitts’

alleged misconduct involved coercing statements, and there were no

allegations (in the documents provided by Appellant) that Pitts destroyed

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evidence. Therefore, for all of these reasons, we deny Appellant’s petition to

remand for another PCRA hearing.

      We now move on to Appellant’s second issue, in which he avers that

Attorney Stern acted ineffectively by not contacting, or calling to the stand,

a witness named Mary Boone. The PCRA court summarized the evidence

presented at the PCRA hearing regarding counsel’s failure to call Boone, as

follows:

      17. Mary Boone was living with [Appellant] in November of
      2004. N.T. 12/15/14, p. 11.

      18. On November 5, 2004, the night of the incident, Boone was
      working at the Rite Aid Pharmacy at Chelten and Wayne Avenues
      in Philadelphia, across the street from Victor’s Tavern, the scene
      of the incident. [Id. at] 11.

      19. On November 5, 2004, Boone came to Victor’s [Tavern] from
      her work at Rite Aid, accompanied by a security guard, in order
      to get [Appellant]. [Id. at] 11, 12.

      20. Boone joined [Appellant] at a table, but declined his offer of
      a drink and instead said she was tired and wanted to go home.
      [Id. at] 12.

      21. [Appellant] retrieved his coat from the chair, finished his
      drink, and then went to the bathroom. [Id. at] 12-13.

      22. Boone testified she saw Joseph Leary block [Appellant] as he
      attempted to enter the bathroom and an argument appeared to
      ensue, although Boone could not hear what was said. [Id. at]
      13, 19-20.

      23. Boone testified she observed that Leary’s body language was
      very aggressive and hostile toward [Appellant]. [Id. at] 20.

      24. Boone testified she saw Leary push and punch [Appellant],
      and then a fight broke out while Boone stood near the door.
      Boone called [Appellant’s] name, however she could not reach
      him because of the crowd. [Id. at] 13-14.


                                    - 22 -
J-S53011-17


     25. Boone testified that as the fight was occurring between Leary
     and [Appellant], she saw Lorraine Patterson, Leary’s sister, come
     from behind [Appellant], grab him and pull back on [Appellant’s]
     arms, and it appeared to her that Patterson appeared to be
     trying to restrain [Appellant]. [Id. at] 14-15.

     26.    Boone’s testimony, if believed by a jury, supports
     [Appellant’s] trial testimony that he was acting in self-defense.

     27. Boone does not recall ever being contacted by Douglas
     Stern, [Appellant’s trial] counsel, whether by phone or in person.
     [Id. at] 15-16.

     28. Boone was not contacted by [Attorney] Stern by mail. [Id.
     at] 15-16.

     29. Boone was not present at [Appellant’s] trial, and was not
     present when he testified in his own defense. [Id. at] 17.

     30. Boone also was not present at trial when the barmaid (also
     identified as the bar manager), Joyce Smith, testified. [Id. at]
     18.

     31. Smith testified at trial that she saw Boone “walk out. She
     left the bar” and [Appellant] sat back down. N.T. 7/6/05, p. 32,
     38.

     32. Boone testified that she would have been willing to testify at
     trial, had she been asked to do so. N.T. 12/15/14, p. 16.

     33. Boone’s testimony that she witnessed any part of the
     incident was not credible.

     …

     50. [Attorney] Stern testified that he discussed potential
     witnesses with [Appellant] in the course of preparing the case for
     trial. N.T. 4/9/15, pp. 5-6, 46.

     51. Although he did not recall her name, [Attorney] Stern
     discussed Mary Boone, who [Appellant] identified as his fiancé,
     as the only other witness with knowledge of the incident. N.T.
     4/9/15, pp. 5-6, 46.

     52. [Attorney] Stern testified that he did not call Boone because
     she [did not] actually witness the incident. [Id. at] 6.



                                   - 23 -
J-S53011-17


     53. [Appellant] told [Attorney] Stern that Boone [did not]
     actually witness the incident, but was outside before the incident
     took place. [Id. at] 6, 8, 13-14, 46.

     54. [Appellant] gave [Attorney] Stern all of Boone’s contact
     information. [Id. at] 10, 12.

     55. [Attorney] Stern testified that he does not recall contacting
     Boone. [Id. at] 12.

     56. [Attorney] Stern did not contact Boone.

     57. [Appellant] testified at trial that Boone left before him and
     was standing outside waiting for him when the whole incident
     took place. [Id. at] 7; N.T. 7/7/05, p. 133.

     58. [Appellant] testified at trial that when he came outside,
     Boone asked him what was that all about. N.T. 7/7/05, p. 133.

     59. The location of the altercation inside Victor’s [Tavern] was to
     the right of the entry door, at the rear/back of the bar, near the
     bathroom and the cigarette machine. N.T. 7/5/05, pp. 8, 9, 10,
     65-66; N.T. 7/6/05, pp. 34-35, 39-40, 47, 55, 61.7
        7 [Appellant] attached photographs of the inside of Victor’s
        Tavern[,] which he claims show the premises as they
        appeared on November 5, 2004. However, there was no
        testimony to this effect from [Appellant], nor were the
        photographs shown to [] Boone or any other witness at the
        hearing. No one from Victor’s [Tavern] was called to
        testify.  Accordingly, there is no testimony that the
        photographs proffered by [Appellant] by affidavit are a fair
        and accurate representation of the way Victor’s Tavern
        appeared at the time of the incident.

     60.    Based on the location of the altercation, [Appellant] would
     not    have been in a position to see if Boone had actually exited
     the    bar at the time of the confrontation with Leary at the rear of
     the    bar near the bathroom.

PCO at 7-8 (some footnotes omitted).

     Based on these findings of fact, the PCRA court concluded that

Appellant had not demonstrated that Attorney Stern acted ineffectively



                                      - 24 -
J-S53011-17



regarding Mary Boone.    The court first noted that in Commonwealth v.

Chmiel, 30 A.3d 1111, 1143 (Pa. 2011), our Supreme Court explained:

            Where a claim is made of counsel’s ineffectiveness for
     failing to call witnesses, it is the appellant’s burden to show that
     the witness existed and was available; counsel was aware of, or
     had a duty to know of the witness; the witness was willing and
     able to appear; and the proposed testimony was necessary in
     order to avoid prejudice to the appellant.

See PCO at 13.     The PCRA court also stressed that, “[t]o demonstrate

Strickland … prejudice, the PCRA petitioner ‘must show how the uncalled

witnesses’ testimony would have been beneficial under the circumstances of

the case.’” PCO at 13 (quoting Commonwealth v. Gibson, 951 A.2d 1110,

1134 (Pa. 2008) (citation omitted)).     “That assessment must necessarily

include some measure of a finding that the witnesses were credible….” Id.

(quoting Commonwealth v. Johnson, 966 A.2d 523, 540 (Pa. 2009)).

     Despite focusing much of its legal discussion on the prejudice a

petitioner must demonstrate to prove counsel’s ineffectiveness for failing to

call a witness, the PCRA court ultimately concluded that Attorney Stern had

a reasonable basis for not calling Mary Boone.         Specifically, the court

reasoned that:

     118. In deciding not to contact or interview Boone, trial counsel
     relied upon [Appellant’s] report to him that Boone did not
     witness the altercation.

     119. Because the threshold of reasonableness of his
     investigation decisions is viewed through the lens of what trial
     counsel knew and believed at the time, we conclude that trial
     counsel’s decision to not contact or interview Boone as a
     potential witness was not entirely unreasonable, under the


                                    - 25 -
J-S53011-17


       circumstances, and therefore he did not provide ineffective
       assistance of counsel in regard to [the] investigation of Boone.

PCO at 16.

       We    disagree    with    the   PCRA    court   that   Attorney   Stern   acted

reasonably. Even if Appellant told counsel that Boone had left the bar before

the confrontation, we cannot accept that as a reasonable basis for counsel to

not have at least contacted Boone, who was Appellant’s fiancé, and who

was present at Victor’s Tavern at the time of the bar fight.

       Nevertheless, we conclude that Appellant was not prejudiced by

counsel’s failure to investigate Boone or call her to the stand at trial. 4 The

PCRA court expressly found that “Boone’s testimony that she witnessed any

part of the incident was not credible.” PCO at 5. The record supports this

credibility determination, as Appellant himself, and Joyce Smith, also

testified at trial that Boone had exited the bar prior to the fight.

Accordingly, because the PCRA court did not believe Boone’s testimony that

she saw the altercation, and the record supports that determination, we are

constrained to conclude that Appellant has failed to prove that the absence

of Boone’s testimony caused him prejudice.                See Commonwealth v.

____________________________________________


4We note that “this Court may affirm the decision of the PCRA [c]ourt if it is
correct on any basis.” Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa.
Super. 2000) (citing Commonwealth v. Pursell, 749 A.2d 911, 917 (Pa.
2000); Commonwealth v. Ahlborn, 683 A.2d 632, 641 n.14 (Pa. Super.
1996)).




                                          - 26 -
J-S53011-17



Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014) (“The PCRA court’s

credibility determinations, when supported by the record, are binding on this

Court.”) (citation omitted). Thus, Appellant’s final ineffectiveness claim fails.

      Order affirmed. Petition for remand denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2017




                                     - 27 -
