J-S05031-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,
Appellee
v.
KENNETH COLEMAN,
Appellant

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IN THE SUPERIOR COURT OF
PENNSYLVANIA

No. 1791 EDA 2013

Appeal from the PCRA Order entered May 31, 2013, in the
Court of Common Pleas of Philadelphia County, Criminal Division,
at No(s): CP-51-CR-1201021-2004
CP-51-CR-1202761-2004

BEFORE: ALLEN, STABILE, and STRASSBURGER*, JJ.
MEMORANDUM BY: STRASSBURGER, J.:

FILED APRIL 8, 2014

Kenneth Coleman (Appellant) appeals from the May 31, 2013 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Also before this Court is Appellant’s pro
se request for this Court to release “any and all transcripts” that pertain to
this case.
remand

for

After careful review, we vacate the PCRA court’s order and
further

proceedings.

We

deny

Appellant’s

request

for

transcripts.
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

* Retired Senior Judge assigned to the Superior Court

 J-S05031-14
of fear that Leary was going to hurt him.
felony-two

aggravated

assault

with

Appellant was found guilty of

respect

to

Patterson,

felony-one

attempted murder and felony-one aggravated assault with 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Super. 2009) (unpublished memorandum), appeal denied 908 A.2d 605 (Pa.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).1 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 he
claimed should have been called to testify and bolster his claims of selfdefense.

To the extent that Appellant’s direct appeal contained claims of ineffective
assistance of trial and appellate counsel, this Court determined that those
claims were raised prematurely, but were preserved for collateral review.
1

2

Brady v. Maryland, 373 U.S. 83 (1963).
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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.
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 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 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. Both Appellant and the PCRA court complied with Pa.R.A.P.
1925.
Appellant raises three issues for our review: Whether the PCRA court
erred in denying Appellant’s PCRA petition without a hearing in light of his

3

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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assertions that (1) counsel was ineffective for failing to investigate a
discovery violation pursuant to Brady where the Commonwealth failed to
turn over a videotape of the incident; (2) counsel was ineffective for failing
to present the testimony of Mary Boone, and; (3) the PCRA court erred in
failing to recuse itself from these proceedings. Appellant’s Brief at 9-9.a.
We begin with our standard of review of appeals from PCRA court
orders:
This Court’s standard of review regarding an order denying
a petition under the PCRA is whether the determination of the
PCRA court is supported by the evidence of record and is free of
legal error. Commonwealth v. Halley, 870 A.2d 795, 799 n.2
(Pa. 2005). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007).
Additionally, we note that
the right to an evidentiary hearing on a post-conviction petition
is not absolute. 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. 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 an
evidentiary hearing.
Turetsky, at 882 (quoting Commonwealth v. Khalifah, 852 A.2d 1238,
1239-40 (Pa. Super. 2004) (citations omitted).

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Appellant’s first contention relates to counsel’s failure to assert
arguments under Brady, either before trial or on direct appeal.
In Commonwealth v. Champney, 65 A.3d 386, 397 (Pa. 2013), our
Supreme Court reiterated the governing law as follows:
Under Brady, “a prosecutor has an obligation to
disclose all exculpatory information material to the
guilt or punishment of an accused, including
evidence
of
an
impeachment
nature.”
Commonwealth v. Spotz, 18 A.3d 244, 275–76
(Pa. 2011) (citation omitted). To establish a Brady
violation, appellant must demonstrate: the evidence
at issue was favorable to him, because it was either
exculpatory or could have been used for
impeachment; the prosecution either willfully or
inadvertently
suppressed
the
evidence;
and
prejudice ensued. Id., at 276 (citation omitted).
“The evidence at issue must have been ‘material
evidence that deprived the defendant of a fair trial.’
... ‘Favorable evidence is material ... if there is a
reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding
would have been different.’” Id. (citations omitted).
Commonwealth v. Walker, 613 Pa. 601, 36 A.3d 1, 9 (2011).
Furthermore, “[t]he mere possibility that an item of undisclosed
information might have helped the defense, or might have
affected the outcome of the trial, does not establish materiality
in the constitutional sense.”
Champney, 65 A.3d at 397 (Pa. 2013).
Appellant’s ineffective assistance of counsel claims turn on the validity
of his prosecutorial misconduct argument. The existence and availability of
the videotape of the incident is dispositive. There is evidence to support
Appellant’s claim that the videotape exists, as demonstrated by the notation
contained in the criminal complaint paperwork filed on the night of the

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incident. The Commonwealth has never produced this tape. Although the
district attorney informed the PCRA court that he had investigated the
matter, Appellant was never afforded any opportunity to litigate fully this
issue at a hearing. Accordingly, in light of the record before us, we hold that
the PCRA court erred in its determination that there were no genuine issues
of material fact in controversy with respect to Appellant’s first claim, and we
remand for an evidentiary hearing as to this issue.
Appellant next claims that the PCRA court erred in denying his claim
that counsel was ineffective for failing to call Boone at trial to corroborate
Appellant’s claim of self-defense. Appellant’s Brief at 22-24. We note that
counsel will not be found ineffective for failing to call a witness “unless the
petitioner can show that the witness’ testimony would have been helpful to
the defense. A failure to call a witness is not per se ineffective assistance of
counsel for such decision usually involves matters of trial strategy.”
Commonwealth v. Matias, 63 A.3d 807, 811 (Pa. Super. 2013) (en banc)
appeal denied, 74 A.3d 1030 (Pa. 2013) (internal quotation marks and
citations omitted).
Our courts have set forth the procedure by which a
petitioner must properly plead and prove his claim that trial
counsel was ineffective in failing to call a witness:
In order to prevail on a claim of ineffectiveness
for failing to call a witness, a defendant must prove,
in addition to meeting the [main ineffectiveness
prongs], that: (1) the witness existed; (2) the
witness was available to testify for the defense; (3)
counsel knew or should have known of the existence

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of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the witness’s
testimony was so prejudicial as to have denied him a
fair trial.
Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super. 2010) (quoting
Commonwealth v. Wright, 599 Pa. 270, 331, 961 A.2d 119, 155 (2008)
(citations omitted)).
The PCRA court denied this claim on the basis that Appellant failed to
attach directly to his PCRA petition an affidavit outlining Boone’s purported
testimony. PCRA Court Opinion, 7/18/2013, at 2 n. 3. However, the record
reflects that an affidavit signed by Boone was submitted to the PCRA court
as an exhibit contained within Appellant’s “Memorandum of Law in Support
of Post Conviction Relief Act” which was filed with his July 29, 2010 pro se
PCRA petition. Given that Appellant’s petition and memorandum were filed
contemporaneously, we will construe Appellant’s accompanying affidavit as
being filed timely.
Boone’s affidavit states, in its entirety:
I, Mary Boone, was present the night the incident took place in
Victor’s Tavern at 5500 Wayne Ave., Phila., PA on November 5,
2004, between my fiancée [Appellant], Joseph Leary and
Lorraine Patterson. I witnessed Joseph Leary verbally threaten
my fiancée and then attacked him [sic].
As my fiancée was defending himself, Lorianne Patterson
attacked my fiancée from the back while he was still being
assaulted by Joseph Leary. I will openly [and] honestly testify
and state on record to these events that I witnessed [sic].
Notarized Affidavit of Boone, 3/27/2007.

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Failure to investigate an eyewitness who was present at the time of
the incident and known to Appellant may be ineffective assistance if the
witness was willing and available to testify. Certainly, Boone’s testimony is
material to Appellant’s defense and, if believed, could have had a substantial
impact on the verdict.

Accordingly, once more, after reviewing the record,

we determine that Appellant has carried his burden of showing a sufficient
factual issue to warrant a hearing.
For the foregoing reasons, we vacate the PCRA court order denying
Appellant’s petition without a hearing and remand for an evidentiary hearing
as to Appellant’s substantive issues. While we need not rule on Appellant’s
final claim on appeal, that the PCRA court should have recused itself, we
suggest that the hearing be conducted by another judge within the
Philadelphia Court of Common Pleas, in order to avoid issues of this nature
in the future.
Finally, in light of our disposition, we deny Appellant’s requests for
transcripts, noting that Appellant’s brief and reproduced record contain the
relevant notes of testimony to support his claims.

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Motion for transcripts denied.

PCRA court order vacated.

remanded with instructions.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2014

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