J-S58024-19
2020 PA Super 12
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERSAUN COLE :
:
Appellant : No. 421 WDA 2019
Appeal from the PCRA Order Entered February 21, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002470-2011
BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.
OPINION BY BENDER, P.J.E.: FILED JANUARY 24, 2020
Appellant, Tersaun Cole, appeals from the post-conviction court’s
February 21, 2019 order dismissing his timely-filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we reverse the court’s order, vacate Appellant’s judgment of sentence, and
remand for a new trial.
This Court previously summarized the evidence presented at Appellant’s
trial, as follows:
Denise Hayden (“Ms. Hayden”) was returning to her Elmore
Square apartment in a private cab on December 30, 2010. As the
cab approached Elmore Square, Ms. Hayden observed a young
man she knew as “P Murph” run across the street and up to
Appellant and two other young men, all of whom were dressed in
black and standing in a doorway. Ms. Hayden saw a handgun in
Appellant’s hand. After entering her street-level apartment, Ms.
Hayden heard gunshots and ran to the courtyard. There, she saw
the victim come out of a hallway and fall to his knees. She also
saw Appellant with the gun in his hand run out of the hallway.
N.T., 3/19/13, at 44–50. Two or three days before the shooting,
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Ms. Hayden observed Appellant, “P Murph,” and two men she did
not recognize near the fence, looking toward the courtyard at the
victim. She overheard one of them say, “We didn’t get him today.
We’ll get him tomorrow.” Id. at 53–58, 62.
The victim’s stepbrother, Edwin Peoples, and the victim’s
cousin, Deron Townsend, were eye-witnesses to the shooting.
They both described the events leading up to and including when
Appellant and a lighter-skinned man shot the victim, while a third
man stood watch. N.T., 3/19/13, at 103–111, 121–130. They
both identified Appellant from a photographic array as one of the
shooters. Id. at 111, 129.
Pittsburgh Homicide Detective George Satler reviewed video
footage captured from security cameras around Elmore Square
between 3:17 p.m. and 3:19 p.m. on December 30, 2010. The
videos showed three individuals exiting an apartment and walking
out of sight, the victim staggering and falling to the ground, and
the same three individuals running away and fleeing in a vehicle.
The cameras did not capture the actual shooting. N.T., 3/19/13,
at 74–87, Commonwealth Exhibits 6 and 7 (videos).
On January 3, 2011, the Allegheny County District Attorney
filed a criminal information, charging Appellant with [first-degree
murder, robbery, conspiracy, and carrying a firearm without a
license]. During the early morning hours of January 23, 2011,
Pittsburgh Police Officer Jeffrey Tomer initiated a traffic stop on
Pittsburgh’s North Side. Appellant was a passenger in the back
seat of the vehicle. Once the vehicle stopped, Appellant fled on
foot. Officer Tomer apprehended Appellant, arrested him, and
found two identification cards on him, one with Appellant’s name
and one for a “Jaison Houser.” Appellant informed the officer that
he was Jason Houser and that Cole was his cousin. N.T., 3/19/13,
at 143–148, Commonwealth Exhibits 20 and 21.
Appellant proceeded to trial on March 19, 2013.
Commonwealth v. Cole, 135 A.3d 191, 192–93 (Pa. Super. 2016), appeal
denied,
145 A.3d 162 (Pa. 2016).
At the close of Appellant’s trial, he was convicted of the above-stated
offenses. On June 19, 2013, he was sentenced for his murder conviction to
life imprisonment, without the possibility of parole (“LWOP”), as well as a
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consecutive term of 15 to 30 years’ for his robbery and conspiracy offenses.
He received no further penalty for his firearm conviction.
Appellant filed a direct appeal, and this Court affirmed his convictions,
but vacated a mandatory-minimum sentence the court had imposed for
Appellant’s robbery conviction, concluding that it was illegal under Alleyne v.
United States, 570 U.S. 99, 106 (2013) (holding that “facts that increase
mandatory minimum sentences must be submitted to the jury” and found
beyond a reasonable doubt). See Cole,
135 A.3d at 196. On November 9,
2017, the trial court resentenced Appellant to the same, aggregate term of
incarceration, which included a discretionary term of 5 to 10 years’
imprisonment for robbery.
Appellant then filed a timely, pro se PCRA petition, and counsel was
appointed. On January 2, 2019, counsel filed an amended petition on
Appellant’s behalf, raising several claims of trial counsel’s ineffectiveness. On
January 29, 2019, the court issued a Pa.R.Crim.P. 907 notice of its intent to
dismiss Appellant’s petition. He did not respond, and on February 21, 2019,
his petition was dismissed. Appellant filed a timely notice of appeal, and he
complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The PCRA court filed its Rule
1925(a) opinion on May 30, 2019.
Herein, Appellant states four issues for our review, which we have
reordered for ease of disposition:
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1. Did the PCRA court err in dismissing [Appellant’s] claim that
trial counsel was ineffective in failing to request a jury instruction
that [Ms.] Hayden’s convictions undermined her credibility?
2. Did the PCRA court err in dismissing [Appellant’s] claim that
trial counsel was ineffective because, although she was obligated
to use a Commonwealth witness, [Ms.] Hayden’s, prior convictions
for retail theft, a crimen falsi offense, to impeach her credibility at
trial, her law firm was concurrently representing and had
previously represented [Ms.] Hayden in prosecutions leading to
those convictions, rendering her likewise obligated to keep
confidential all information related to those prosecutions, and she
failed to use the convictions to impeach [Ms.] Hayden’s credibility?
3. Did the PCRA court err in dismissing [Appellant’s] claim that
trial counsel was ineffective in failing to impeach one of the
Commonwealth’s chief witnesses, Edwin Peoples, with numerous
prior inconsistent statements?
4. Did the PCRA court err in dismissing [Appellant’s] claim that
trial counsel was ineffective in failing to argue that the evidence
presented at trial did not establish a robbery?
Appellant’s Brief at 4.
First, “[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 stated that:
[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 truthdetermining process that no reliable adjudication of guilt or
innocence could have taken place.” Generally, counsel’s
performance is presumed to be constitutionally adequate, and
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counsel will only be deemed ineffective upon a sufficient showing
by the petitioner. To obtain relief, a petitioner must demonstrate
that counsel’s performance was deficient and that the deficiency
prejudiced the petitioner. A petitioner establishes prejudice when
he demonstrates “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” … [A] properly pled claim of
ineffectiveness posits that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice befell the petitioner
from counsel’s act or omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
Appellant first contends that trial counsel acted ineffectively by not
requesting that the court instruct the jury regarding Denise Hayden’s crimen
falsi convictions. During Ms. Hayden’s direct-examination, she admitted that
she had been previously convicted of retail theft, and that she was presently
incarcerated for violating her probation by committing a new retail theft. See
N.T. Trial, 3/19/13, at 44-45. Appellant claims that, given this testimony, “he
was at least arguably entitled to obtain a jury instruction that [Ms.] Hayden’s
convictions for retail theft could be considered to undermine her credibility.”
Appellant’s Brief at 39.
We agree that Appellant’s claim has arguable merit. As Appellant
correctly observes, “[g]enerally, ‘[d]efendants are generally entitled to
instructions that they have requested and that are supported by the
evidence.’” Appellant’s Brief at 39 (quoting Commonwealth v. Charleston,
94 A.3d 1012, 1026 (Pa. Super. 2014) (citations omitted)). Here, Ms.
Hayden testified about her retail theft convictions, which were properly
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admitted to impeach her credibility. See Commonwealth v. LaMassa, 532
A.2d 450, 452 (Pa. Super. 1987) (internal citations omitted) (“In
Pennsylvania, a witness may be impeached by showing a prior conviction if
the crime involved dishonesty or false statement. Burglary and theft are
offenses which are crimen falsi.”). Therefore, Appellant was entitled to a jury
instruction regarding the relevancy of Ms. Hayden’s crimen falsi convictions,
and how the jury could utilize that evidence in assessing her credibility. See
id. (concluding that LaMassa was entitled to a jury instruction regarding the
“relevancy and the use which could be made of [the witness’s crimen falsi
convictions] in determining [the witness’s] credibility”). Consequently,
Appellant’s claim that counsel acted ineffectively by not requesting such an
instruction has arguable merit.
In regard to the reasonable basis prong of the ineffectiveness test,
Appellant states:
Simply put, there is only benefit, and no burden, to seeking
and obtaining an instruction that highlights a Commonwealth
witness’s prior convictions for crimes of dishonesty and directs
jurors that they are permitted to consider those convictions as
undermining her testimony. Thus, [defense counsel’s] failure to
seek and obtain such an instruction lacked a reasonable strategic
basis.
Appellant’s Brief at 42.
Initially, it is unfortunate that the PCRA court did not conduct a hearing
to permit Appellant to elicit counsel’s testimony regarding her decision not to
request the at-issue instruction. However, we need not remand for such a
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hearing. As discussed in more detail infra, Ms. Hayden’s testimony was vital
to the Commonwealth’s case against Appellant, especially in terms of proving
the premeditation element of first-degree murder. Thus, counsel could have
had no reasonable basis for not requesting that the jury be instructed that it
could consider Ms. Hayden’s crimen falsi offenses as casting doubt on her
overall credibility.
Moreover, we reject the Commonwealth’s suggestion that counsel acted
reasonably because, “[i]n circumstances like those in the case at bar, where
the Commonwealth preemptively pointed out the commission by a witness of
crimen falsi [crimes], this Court ha[s] concluded that there is no obvious
benefit to counsel[’s] raising it again.” Commonwealth’s Brief at 26-27 (citing
Commonwealth v. Treadwill, 911 A.2d 987, 992 (Pa. Super. 2006)). In
Treadwill, we rejected the appellant’s argument that his counsel acted
ineffectively by not seeking to admit a witness’s crimen falsi convictions.
Treadwill,
911 A.2d at 992. We concluded that because “the Commonwealth
pre-emptively raised the issue of [the witness’s] crimen falsi [crimes],” the
appellant’s counsel could procure “no obvious benefit from raising it again.”
Id. Thus, “there was a reasonable basis for trial counsel’s inaction.”
Id.
The issue in Treadwill is not analogous to the case at hand. In the
issue we are addressing, Appellant is not challenging counsel’s failure to admit
Hayden’s crimen falsi convictions; rather, he is alleging that counsel acted
ineffectively by not requesting an instruction regarding that evidence. Clearly,
Appellant would have only benefitted from the court’s informing the jury that
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it could consider Hayden’s crimes in assessing her credibility. Therefore,
Treadwill does not impact our conclusion that counsel could have had no
reasonable basis for not asking for a crimen falsi jury instruction.
Next, we assess whether Appellant was prejudiced by counsel’s conduct.
In this regard, Appellant explains:
[T]he Commonwealth’s case rested largely on testimony
from [Ms.] Hayden that, a few days prior to the shooting,
[Appellant] was standing outside with three other men, looking at
Hill, and one of the men indicated, “We didn’t get him today. We’ll
get him tomorrow,” which suggested that Hill and others had a
days-long conspiracy to either rob or kill Hill. [Ms.] Hayden’s
testimony in this regard, if believed, would persuasively establish
the element of premeditation necessary for a conviction of first-degree murder, disprove any potential claim of self-defense, or
establish a conspiracy to rob Hill, supporting a theory of felony
murder, see 18 Pa.C.S. [§] 2502(a)[,] (d) (defining first-degree
murder as a “willful, deliberate, and premeditated killing”); 18
Pa.C.S. § 2502(b) (defining second-degree murder as a murder
occurring while the defendant is a “principal or an accomplice in
the perpetration of a felony”), as well as robbery and criminal
conspiracy itself. Also detailed above, none of the
Commonwealth’s other witnesses offered such damning evidence
establishing [Appellant’s] participation in a protracted plot against
Hill. Indeed, the Commonwealth in its summation repeatedly
emphasized [Ms.] Hayden’s testimony as crucial in meeting its
burden of proof. See, e.g., N.T., 3/20/13, at 41 (“[T]hey know
where they’re going, because we heard Ms. Hayden tell us days
before, a couple days before the shooting, the defendant and his
associates were out here. They were looking right at who? Right
at [Hill], saying, [‘]We didn’t get him today; we’ll get him
tomorrow.[’] And they did.”); id. at 43 (“What is premeditation?
It’s planning beforehand…. What evidence do we have of a plan?
We didn’t get him today; we’ll get him tomorrow.”); id. at 48 (“I
submit … to you it was an assassination and first[-]degree murder.
We didn’t get him today; we’ll get him tomorrow.”)[.]
Had the jury been instructed that [Ms.] Hayden’s convictions
constituted a basis for discounting her testimony, there is a
reasonable probability that [Appellant] would have been convicted
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of a lesser degree of murder or acquitted of homicide, robbery,
and/or criminal conspiracy. Indeed, [Ms.] Hayden’s testimony,
even without the instruction, suffered from veracity and credibility
problems. First, she was, at the time of the shooting, an avowed
crack cocaine addict, see N.T. Trial, 3/19/13, at 45…. Moreover,
she was a crack cocaine addict who worked for Hill and Peoples,
bringing them purchasers, see N.T. Trial, 3/19/13, at 113-14,
suggesting that her addiction and income might reasonably have
been dependent on bolstering the likelihood of Peoples’ preferred
outcome at trial. Furthermore, the substance of [Ms.] Hayden’s
testimony itself raises skepticism: [I]t is difficult to imagine why
four men interested in plotting a robbery and/or murder would do
so in public, in view and potentially [in] earshot of their intended
victim, and declare that they will return to execute their scheme
the next day (only to do so several days later). Had the jury been
instructed that [Ms.] Hayden’s crimes of dishonesty were yet
further reason to view [Ms.] Hayden’s testimony with suspicion,
there is a reasonable likelihood that it would have tipped the
proverbial balance in favor of discrediting her, and, thus,
undermined the Commonwealth’s chief theory of premeditation,
robbery, and/or conspiracy.
Appellant’s Brief at 43-46.
Appellant’s prejudice argument is convincing, and neither the
Commonwealth nor the PCRA court offer any compelling rationale to
undermine it. First, the Commonwealth wholly misconstrues Appellant’s claim
as an allegation that “counsel ineffectively failed to object to the court’s
instruction concerning credibility because it did not advise the jury to consider
[] Hayden’s convictions for retail theft.” Commonwealth’s Brief at 23
(emphasis added). It then goes on to insist that counsel had no basis for
objecting to the court’s “appropriate” charge regarding the jury’s general
assessment of witness credibility. Id. However, Appellant is not arguing that
counsel should have objected to the charge as given; he is claiming that
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counsel should have requested a more specific instruction regarding
Hayden’s credibility in light of her crimen falsi convictions.
The Commonwealth also argues, and the PCRA court concludes, that
Appellant was not prejudiced by the omitted crimen falsi instruction because
the trial court provided a general instruction on assessing witness credibility.
See id. at 27; PCRA Court Opinion (PCO), 5/30/19, at 5 (rejecting Appellant’s
ineffectiveness claim because the court “instructed the jury before the start of
testimony that it was their job to assess credibility, gave an explanation of
crimen falsi when the witness testified[,] and reiterated the instruction
immediately prior to jury deliberations during the jury charge”). We disagree.
In LaMassa, “[t]he trial court instructed the jury regarding various factors
which it could consider in determining the credibility of the witnesses.
However, the court did not instruct the jury about the use to be made of prior
convictions of [one of the Commonwealth’s witnesses,]” although defense
counsel had requested such an instruction. LaMassa, 532 A.2d at 451. On
appeal, we held that the trial court had erred by denying defense counsel’s
request for a crimen falsi instruction, thus demonstrating that the trial court’s
general instruction on witness credibility was not sufficient.
Id. at 451-52.
In this case, Appellant was likewise entitled to a jury charge regarding
the relevancy of Ms. Hayden’s crimen falsi convictions and how the jury could
use that evidence in assessing her credibility. Pursuant to LaMassa, the
court’s general instructions on witness credibility, provided at the beginning
and end of Appellant’s trial, were not sufficient, as they at no point addressed
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the specific issue of Ms. Hayden’s crimen falsi crimes. See N.T. Trial, 3/19/13,
at 10; N.T. Trial, 3/20/13, at 54-55.
Moreover, the record does not support the PCRA court’s statement that
it explained crimen falsi crimes when Hayden testified. See PCO at 5
(declaring that it “gave an explanation of crimen falsi when the witness
testified”). The only statement to which the court could be referring was a
ruling on defense counsel’s objection to the Commonwealth’s asking Ms.
Hayden why she was “doing these retail thefts[.]” N.T. Trial, 3/19/13, at 45.
In overruling the objection, the court remarked, “It’s fair background for the
witness’[s] credibility.” Id. The court did not explain, in this statement, the
relevancy of Ms. Hayden’s crimen falsi offenses, nor instruct the jury on how
that evidence could be considered in assessing her credibility. Additionally,
as Appellant avers,
the [c]ourt’s indication in this regard was an evidentiary ruling,
and, at the beginning of trial, the court specifically admonished
the jury, “do not concern yourselves with any objections and my
reasons for ruling on them.” [N.T. Trial, 3/19/13,] at 14.
Moreover, the question did not concern Hayden’s convictions
themselves, but, rather, her motivation for committing them, and,
as detailed above, an instruction regarding crimen falsi is specific
and distinct from other general concepts relating to credibility.
Appellant’s Brief at 50 n.13. Therefore, this ruling by the court did not resolve
the prejudice that Appellant suffered by counsel’s failure to request a crimen
falsi jury instruction.
In sum, we conclude that the PCRA court erred by rejecting Appellant’s
claim that his trial counsel acted ineffectively by not requesting a jury
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instruction regarding the impact that Ms. Hayden’s crimen falsi offenses could
have on the jury’s assessment of her credibility. The evidence supported the
trial court’s providing such an instruction, had counsel requested it. See
Charleston, 94 A.3d at 1026. Additionally, we can discern no basis on which
counsel could have reasonably foregone asking for the instruction, and we
conclude that there is a reasonable probability that the result of Appellant’s
trial would have been different had a crimen falsi instruction been given.
Consequently, Appellant is entitled to a new trial.1
Order reversed. Judgment of sentence vacated. Case remanded for a
new trial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2020
____________________________________________
1 In light of this disposition, we need not address Appellant’s remaining issues.
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