J-S36013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

CHRISTOPHER COKER

                            Appellant                No. 2397 EDA 2016


                   Appeal from the PCRA Order June 30, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1200411-2003


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

MEMORANDUM BY PANELLA, J.                              FILED JULY 26, 2017

       Appellant, Christopher Coker, appeals from the order dismissing his

petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546 without a hearing.1 Appellant raises seven claims based upon his

assertion that both trial and appellate counsel were ineffective. After careful

review, we conclude that none of Appellant’s claims have merit, and

therefore affirm.

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1
  The PCRA court’s Rule 1925(a) opinion states that Appellant’s petition was
denied following an evidentiary hearing on June 30, 2016. See PCRA Court
Opinion, 10/26/16, at 2. However, upon evaluation of the transcript, it is
evident that the purpose of the June 30 hearing was not to collect evidence,
but rather to hold a hearing pursuant to the dictates of Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998), to determine whether Appellant wanted to
continue with appointed counsel. See N.T., Grazier Hearing, 6/30/16. Thus,
we will evaluate the denial of Appellant’s PCRA petition as a denial without
an evidentiary hearing.
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      A panel of this Court previously summarized the facts of this matter as

follows.

             The facts of this case involve Appellant firing multiple
      gunshots at his victim at the street corner where the two men
      were arguing on April 13, 2003. One neighbor testified to having
      heard two gunshots and then seeing Appellant standing in a
      “shooting posture” with his left hand supporting the gun-holding
      right while aiming it at the victim, who at that point was trying
      to run away. Watching from his enclosed porch, where he had
      told his children to wait while the dispute between Appellant and
      his victim was escalating, the neighbor heard a “few more shots”
      and the victim yell for someone to “please help” just moments
      before he fell to the ground. Another witness testified to hearing
      six to eight gunshots, and seconds later looked out her window
      directly across the street and could clearly see her neighbor,
      Appellant, holding a gun as he entered his home for several
      minutes before leaving in his car. She phoned police
      immediately.

             Emergency personnel found the victim unconscious and
      bleeding heavily from various parts of the body, including the
      back of his leg, where a bullet severed a major artery. Listed in
      critical condition upon arrival at Temple University Hospital’s
      emergency room, Appellant never regained consciousness and
      died from his injuries on May 11, 2003. Approximately four
      months later, Appellant was arrested by the “warrant squad” of
      the Philadelphia Police Department and charged with murder
      along with [possessing an instrument of crime].

Commonwealth v. Coker, No. 2539 EDA 2007, at 2 (Pa. Super., filed

12/15/09) (unpublished memorandum) (internal citations to the record

omitted).

      Appellant proceeded to a jury trial where he was convicted of

voluntary manslaughter and possessing an instrument of crime. On August

30, 2005, the trial court sentenced Appellant to an aggregate term of seven

to fourteen years’ incarceration followed by a ten-year probation term.

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Appellant did not file a direct appeal, but later filed a timely PCRA petition

seeking the reinstatement of his direct appeal rights. The PCRA court

reinstated Appellant’s appeal rights and appointed Richard Brown, Jr.,

Esquire, as appellate counsel. Appellant subsequently presented a challenge

to the trial court’s alleged ex parte interaction with the jury at his trial to this

Court. We affirmed Appellant’s judgment of sentence and our Supreme Court

denied allocator.

      On November 12, 2010, Appellant filed the instant PCRA petition,

alleging the ineffectiveness of both trial counsel, Todd Henry, Esquire, and

appellate counsel, Attorney Brown. The PCRA court appointed PCRA counsel,

Elayne Bryn, Esquire. Attorney Bryn filed a Turner/Finley no-merit letter

and petition to withdraw as counsel on May 11, 2015. The following day, the

PCRA court granted Attorney Bryn’s request to withdraw and issued a Rule

907 notice of its intent to dismiss the petition without a hearing. Appellant

filed a response, requested the appointment of new counsel, and requested

a hearing. The PCRA court granted Appellant’s request for new counsel and

appointed David Rudenstein, Esquire, on August 28, 2015.

      Shortly thereafter, Attorney Rudenstein filed an amended petition

through which Appellant raised seven allegations of ineffective assistance of

counsel, renewed Appellant’s request for an evidentiary hearing, and

requested a new trial. The PCRA court filed a Rule 907 notice of its intent to

dismiss the petition as amended on May 12, 2016. In response, Appellant

filed a motion for leave to hold an immediate Grazier hearing. The PCRA

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held the Grazier hearing, and after determining that Appellant did not wish

to proceed without counsel, denied the petition on June 30, 2016. This

timely appeal followed.

      On appeal, Appellant contends that the PCRA court erred by dismissing

his PCRA petition without an evidentiary hearing. See Appellant’s Brief, at 3.

To support this claim, Appellant raises seven separate allegations of trial

counsel ineffectiveness and appellate counsel ineffectiveness that he claims

would have proved meritorious at an evidentiary hearing. See id., at 13-22.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted) “[Our] scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the

PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012) (citation omitted).

      Through all of Appellant’s claims on appeal, he asserts ineffectiveness

of counsel. See Appellant’s Brief, at 13-22. We presume the effective

assistance of counsel; an appellant has the burden of proving otherwise.

See Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super. 2004). “In

order for Appellant to prevail on a claim of ineffective assistance of counsel,

he must show, by a preponderance of the evidence, ineffective assistance of

counsel which … so undermined the truth-determining process that no

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reliable adjudication of guilt or innocence could have taken place.”

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citation omitted). Further,

      Appellant must plead and prove by a preponderance of the
      evidence that: (1) the underlying legal claim has arguable merit;
      (2) counsel had no reasonable basis for his action or inaction;
      and (3) Appellant suffered no prejudice because of counsel’s
      action or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (internal citations

and quotation marks omitted).

      The right to an evidentiary hearing on a post-conviction petition is not

absolute. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.

Super. 2001). It is within the PCRA court’s discretion to decline to hold a

hearing if the petitioner’s claim is patently frivolous and has no support

either in the record or other evidence. See id. It is the responsibility of the

reviewing court on appeal to examine each issue raised in the PCRA petition

in light of the record certified before it in order to determine if the PCRA

court erred in its determination that there were no genuine issues of

material fact in controversy and in denying relief without conducting a

hearing. See Commonwealth v. Hardcastle, 701 A.2d 541, 542-543 (Pa.

1997).

      In “ineffectiveness claim in particular, if the record reflects that the

underlying issue is of no arguable merit or no prejudice resulted, no

evidentiary hearing is required.” Commonwealth v. Bauhammers, 92

A.3d 708, 726-727 (Pa. 2014) (citation omitted). “Arguable merit exists

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when the factual statements are accurate and could establish cause for

relief. Whether the facts rise to the level of arguable merit is a legal

determination.” Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa.

Super. 2015) (citation omitted). “Prejudice is established if there is a

reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different. A reasonable probability is a

probability     sufficient   to   undermine   confidence   in   the      outcome.”

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (internal

citations and quotation marks omitted). We review a PCRA court’s decision

to deny a claim without a hearing for an abuse of discretion. See id.

       In his first two claims, Appellant contends trial counsel was ineffective

for failing to object to statements made by the prosecutor in her opening

remarks. See Appellant’s Brief, at 9, 13-15. We have previously recognized

that

       [n]ot every unwise remark made by an attorney amount to
       misconduct or warrants the grant of a new trial. Comments by a
       prosecutor do not constitute reversible error unless the
       unavoidable effect of such comments would be to prejudice the
       jury, forming in their minds fixed bias and hostility toward the
       defendant so they could not weigh the evidence objectively and
       render a true verdict.

             Furthermore, according to the Pennsylvania Supreme
       Court in Commonwealth v. Chmiel, [889 A.2d 501, 543-544
       (Pa. 2005)]:

              In determining whether the prosecutor engaged in
              misconduct, courts must keep in mind that comments
              made by a prosecutor must be examined within the
              contest of defense counsel’s conduct. It is well settled

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              that the prosecutor may fairly respond to points made
              in the defense closing. A remark by a prosecutor,
              otherwise improper, may be appropriate if it is in fair
              response to the argument and comment of defense
              counsel. Moreover, prosecutorial misconduct will not be
              found where comments were based on the evidence or
              proper inferences therefrom or were only oratorical
              flair.

Commonwealth v. Collins, 70 A.3d 1245, 1252-53 (Pa. Super. 2013)

(internal citations and quotation marks omitted; brackets added and

omitted).

      Appellant first challenges the references to the victim’s race the

prosecutor made during opening statements. See Appellant’s Brief, at 9, 13-

14. Specifically, Appellant contends that the following statements improperly

injected the issue of race into the trial. See id., at 13-14.

      COMMONWEALTH: Well I’m going to tell you right now that the
      facts you’re going to hear today and the next few days in this
      case were not ripped from the pages of today’s headlines or any
      other day’s headlines for that matter. Because it’s a sad reality
      for us as citizens of the City of Philadelphia that when a young,
      black man gets shot, cut down in his prime and gets killed in the
      streets of Philadelphia it very, very rarely makes the headlines.
      But that’s exactly what happened in this case, ladies and
      gentlemen. The defendant Christopher Coker, shot and killed the
      victim in this case Jermane Morgan. Jermane Morgan, a young
      black man of 29 years of age.

N.T., Jury Trial, 7/13/05, at 35-36. The prosecutor mentioned the victim’s

race again, stating:

      COMMONWEALTH: Like I said, it doesn’t make headlines when a
      young black man gets killed on the streets of Philadelphia.

Id., at 37.



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      We agree with the PCRA court, see PCRA Court Opinion, 10/25/16, at

5-6, that this issue has no merit. While perhaps ill advised, the prosecutor’s

statement did not inflame any racial bias within the jury: the main issue in

the case was self-defense and both the victim and defendant were African-

American. Thus, this issue merits no relief.

      Appellant next argues trial counsel failed to object to the prosecutor’s

impermissible remark concerning Appellant’s Fifth Amendment right to

remain silent. See Appellant’s Brief, at 9, 15. Appellant draws this

conclusion from the prosecutor’s remark that “[t]he one person who will not

be taking this stand is [the victim], but the physical evidence will testify for

him and speak for him.” N.T., Jury Trial, 7/13/05, at 42. Appellant contends

that, through this statement, the prosecutor impermissibly implied Appellant

would be testifying at trial, thus violating his Fifth Amendment right to

choose not to testify. See Appellant’s Brief, at 15.

      As a general rule, “any comment that the prosecuting attorney makes

regarding a defendant’s election not to testify is a violation of the

defendant’s right against self-incrimination as guaranteed by the Fifth

Amendment of the United States Constitution, Article I, Section 9 of the

Pennsylvania Constitution and by statute, codified at 42 Pa.C.S.A. § 5941.”

Commonwealth v. Trivigno, 750 A.2d 243, 248 (Pa. 2000) (plurality)

(citation omitted). A comment will infringe upon this right if “the language

used by the prosecutor is intended to create for the jury an adverse

inference from the failure of the defendant to testify.” Commonwealth v.

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Clark, 710 A.2d 31, 39 (Pa. 1998), abrogated on other grounds by

Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003).

      Instantly, unlike situations in which a prosecutor comments on a

defendant’s failure to testify, Appellant claims that the prosecutor indicated

that Appellant would be testifying. Appellant does not, and cannot, point to

any case law that indicates that a prosecutor’s comments relating to the

mere fact that a defendant was planning to testify violates these rights.

Further, there is a severe attenuation in the leap from the actual comment

by the prosecutor to Appellant’s understanding of the comment. Therefore,

we do not find that Appellant could have shown that he was prejudiced in

any manner by this statement. Thus, the PCRA court properly denied this

claim without an evidentiary hearing.

      Next, Appellant contends that trial counsel was ineffective for failing to

notify Appellant of a conflict of interest that arose during the course of the

trial. See Appellant’s Brief, at 9, 16. Specifically, Appellant claims that trial

counsel’s prior representation of one of the Commonwealth’s witness’s

daughters in an unrelated matter renders counsel ineffective. See id., at 16.

      An attorney owes his client a duty of loyalty, including a duty to avoid

conflicts of interest. See Strickland v. Washington, 466 U.S. 668, 688

(1984). “An appellant cannot prevail on a preserved conflict of interest claim

absent a showing of actual prejudice” Commonwealth v. Collins, 957 A.2d

237, 251 (Pa. 2008) (citations omitted). However, if an appellant is able to

show that trial counsel experienced an actual, rather than potential conflict

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of interest, prejudice is presumed. See id. “To show an actual conflict of

interest,   the    appellant    must demonstrate         that:   (1)   counsel actively

represented       conflicting   interests;   and   (2)   those    conflicting   interests

adversely affected his lawyer’s performance.” Id. (citations and internal

quotation marks omitted).

      We agree with the PCRA court that this issue has no merit. As the

PCRA court explains in its well-written opinion:

             At trial, the prosecutor informed the trial court that trial
      counsel had a possible conflict of interest as he had previously
      represented the daughter of one of the Commonwealth’s
      witnesses in a matter involving a street fight between the
      daughter and other girls in the neighborhood. N.T. 7/13/05 at
      107-110. However, trial counsel informed the court that, while
      he had represented the daughter, there was no actual conflict of
      interest as the daughter would not be testifying at defendant’s
      trial, defendant was not involved in the daughter’s street fight,
      and trial counsel had not contacted the daughter or the
      Commonwealth witness in any way to request assistance in
      defendant’s case. N.T. 7/13/05 at 109-110. In addition, the
      Commonwealth witness at issue was only being called by the
      Commonwealth to say that she saw defendant running with a
      gun, which were the facts not disputed in this self-defense case.
      N.T. 7/13/05 at 110.

PCRA Court Opinion, 10/25/16, at 8.

      It is clear from the record trial counsel did not represent competing

interests. As there was no actual conflict, this issue merits no relief.

      In his fourth alleged error, Appellant contends trial counsel rendered

ineffective assistance for failing to move for a “proper” cautionary instruction

and mistrial following an improper statement made by James Wirth that

Appellant and his friends were “known in the area.” Appellant’s Brief, at 17-

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18. Appellant contends this statement, when combined with Wirth’s earlier

statement that he fled Philadelphia because he feared for his life, improperly

introduced evidence of Appellant’s prior bad acts. See id. Further, Appellant

contends that while the trial court instructed the jury to disregard the

statement as it applied to Appellant’s friends, the trial judge failed to include

Appellant in this instruction. See id. Therefore, Appellant contends it was

error for trial counsel to fail to specifically request Appellant be included in

this instruction and to fail to move for a mistrial. See id.

      “Evidence of prior crimes or bad acts may not be presented at trial to

establish    the    defendant’s     criminal    character      or   proclivities.”

Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008)

(citation omitted). See also Pa.R.E. 404(b)(1).

      Appellant’s claim of error rests upon his belief that Wirth’s statement

that he left town because he was afraid and that Appellant and his friends

were “known in the area” introduced prior bad acts evidence in violation of

Rule 404. There is no evidence of record, however, that Wirth testified as to

any prior actions on behalf of Appellant that would have inspired his fear. As

he “did not mention other crimes, wrongs, or acts, [Wirth’s] testimony does

not implicate Rule 404.” Commonwealth v. Cook, 952 A.2d 594, 620 (Pa.

2008) (citation and internal quotation marks omitted). Accordingly, trial

counsel was not ineffective for failing to request a “proper” cautionary

instruction or move for a mistrial based upon the introduction of this




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evidence. Thus, we will not disturb the PCRA court’s determination that this

issue was meritless and did not require an evidentiary hearing.2

       Next, Appellant argues trial counsel was ineffective for failing to object

to a police officer’s alleged irrelevant testimony relating to a search warrant.

See Appellant’s Brief, at 18-19. Specifically, Appellant contends that the

following comments made by Detective Richard Flynn were irrelevant and

allowed the Commonwealth to place its “imprimatur on the case” Id., at 19.

       PROSECUTOR: I’m going to ask you to explain to the jury what a
       search and seizure warrant is and what power, if any, does it
       give you.

       DETECTIVE FLYNN: A search and seizure warrant allows a police
       officer, anybody in law enforcement, to enter someone’s
       property in order to find evidence of a crime. In order to do that,
       you have to convince a judicial authority, the person issuing the
       warrant, that there was enough probable cause to do this; there
       is enough evidence or to believe that there is enough of a crime
       within a person’s home.

N.T., Jury Trial, 7/14/05, at 12.

       “Admission of evidence is within the sound discretion of the trial court

and will be reversed only upon a showing that the trial court clearly abused

its discretion.” Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa.

2002) (citation omitted). “All relevant evidence is admissible, except as



____________________________________________


2
 “[A]n appellate court may affirm the lower court on any basis, even one
not considered or presented in the court below.” Commonwealth v. Burns,
988 A.2d 684, 690 n.6 (Pa. Super. 2009).



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otherwise provided by law. Evidence that is not relevant is not admissible.”

Pa.R.E. 402.

      The PCRA court “agrees that it is not relevant at trial that a judicial

authority found probable cause to believe that evidence of a crime would be

found in defendant’s home.” PCRA Court Opinion, 10/25/16, at 10. The

police obtained the warrant obtained to search for the handgun used in the

shooting. At trial, as the PCRA court notes, Appellant admitted he possessed

the handgun—and that he shot the decedent. The only issue at trial was self-

defense. “Under these circumstances, the evidence that probable cause

existed to show that defendant had a gun in his home could not have

adversely affected defendant’s case.” Id., at 11. This reasoning is sound.

Appellant cannot establish prejudice. Thus, Appellant’s fifth claim of trial

counsel ineffectiveness on appeal fails.

      Appellant raises a similar challenge to the introduction of allegedly

irrelevant evidence in his sixth issue. Appellant claims appellate counsel was

ineffective when he failed to challenge, on direct appeal, the trial court’s

evidentiary ruling that allowed a detective to testify that the Commonwealth

witness, Wirth, had been arrested for absconding from probation following

his testimony. See Appellant’s Brief, at 21. Appellant contends that this

information was not relevant, and therefore its introduction only served to

prejudice Appellant by unfairly undermining the impeachment of Wirth. See

id.




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      The PCRA court cogently explained its reasoning for dismissing this

claim in its opinion:

             Here, the evidence of Wirth’s arrest after testifying was
      highly relevant to corroborate an important part of Wirth’s
      testimony. In particular, Wirth testified that he returned to
      Philadelphia after absconding knowing that there was a warrant
      outstanding for his arrest, and fully expecting to surrender to
      authorities. He also testified that no promises had been made to
      him for returning and testifying, and that he was aware that he
      could face new charges and be imprisoned upon his return. N.T.
      7/13/05 at 134-136. Wirth’s arrest following his testimony
      corroborated Wirth’s stated belief that he was actually not
      receiving favorable treatment and would face consequences for
      violating probation. Moreover, the potential for unfair prejudice
      was minimal.

PCRA Court Opinion, 1025/16, at 12.

      We agree with the PCRA court that the testimony was relevant. Thus,

an objection posed by trial counsel would have failed. We cannot deem

Appellate counsel ineffective for failing to present a meritless claim on direct

appeal. See Commonwealth v. Lawrence, 960 A.2d 473, 478 (Pa. Super.

2008).

      In his seventh and final alleged error, Appellant claims that trial

counsel was ineffective in failing to investigate and call Kia Miller as a

witness at trial. See Appellant’s Brief, at 22.

      “Where a[n appellant] claims that counsel was ineffective for failing to

call a particular witness, we require proof of that witness’s availability to

testify, as well as an adequate assertion that the substance of the purported

testimony would make a difference in the case.” Commonwealth v.


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Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (citation omitted; brackets in

original). In the PCRA petition, the petitioner “shall include a signed

certification as to each intended witness stating the witness’s name,

address, date of birth and substance of testimony and shall include any

documents material to that witness's testimony.” 42 Pa.C.S.A. § 9545(d)(1).

      Here, Appellant establishes the identity of the witness, Kia Miller—and

that is all. Appellant writes in his appellate brief that “in being forthright,

[he] does not have any information pertaining to Kia Miller.” Appellant’s

Brief, at 22. He raises this claim only to “preserve the issue at this time and

would investigate if the case were remanded for an evidentiary hearing

and/or a new trial were granted.” Id. That is not how one successfully raises

this claim. The PCRA court committed no error in finding it was without

merit.

      Order affirmed.

      President Judge Emeritus Ford Elliott joins the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




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