[J-15-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 24 EAP 2019
:
Appellee : Appeal from the Judgment of
: Superior Court entered on March
: 11, 2019 at No. 3969 EDA 2017
v. : affirming the PCRA Order entered
: on December 1, 2017
: in the Court of Common Pleas,
KEENAN COLEMAN, : Philadelphia County, Criminal
: Division, at Nos. CP-51-CR-
Appellant : 0002793-2011, CP-51-CR-0002794-
: 2011 and CP-51-CR-0002820-2011.
:
: SUBMITTED: February 26, 2020
OPINION
JUSTICE BAER DECIDED: May 19, 2020
This matter arises from a petition filed pursuant to the Post Conviction Relief Act,
42 Pa.C.S. §§ 9541-9546, by Keenan Coleman (“Appellant”). We granted allowance of
appeal to address three issues. Regarding Appellant’s first issue, we examine whether,
within the context of the arguable merit prong of the ineffective-assistance-of-counsel
standard, set forth infra, the lower courts erred by concluding that trial testimony was not
hearsay because it was not offered for the truth of the matters asserted but, rather, for
other limited purposes. We hold that the lower courts’ determinations in this regard are
in conflict with well-settled precedent and, thus, are erroneous because the trial court did
not instruct the jury to consider the alleged hearsay testimony for only the limited purposes
identified by the lower courts. As to Appellant’s second issue, whether trial counsel was
ineffective for failing to object to testimony regarding Appellant’s alleged ownership and
use of firearms, we conclude that the Superior Court did not adequately address this
claim. Lastly, we find that the Superior Court properly rejected Appellant’s claim that trial
counsel was ineffective for failing to object to a portion of the prosecutor’s closing
argument. For these reasons, we affirm in part and vacate in part the Superior Court’s
judgment. Further, we remand to the Superior Court with instructions to reconsider
Appellant’s outstanding claims of ineffective assistance of counsel claims as discussed
below.
The relevant facts underlying this appeal are undisputed. In the early morning
hours of April 12, 2010, Tobias Berry (“Victim”) was shot and killed on the streets of West
Philadelphia. During the investigation of Victim’s murder, police, including Detective John
Keen, took statements from Wakeeyah Powell and Hanif Hall, both of whom identified
Appellant as the person that shot Victim. Appellant eventually was arrested and charged
with first-degree murder and related offenses.
At Appellant’s trial,1 the Commonwealth called several witnesses, including Powell
and Hall, but they recanted their previous statements identifying Appellant as the shooter.
More specifically, Powell claimed that police coerced her into giving her initial statement
by contending that the officers said they had statements from other persons but lost their
“original witness.”2 E.g., N.T., 8/28/2012, at 182. Powell also denied witnessing the
shooting, stating instead that she had heard about it from a friend. Id. at 214-15. Because
Powell’s trial testimony was inconsistent with her statement to police, the Commonwealth
utilized her previous statement to examine her. That statement included a reference to
1 Appellant had a joint trial with his codefendant, Derek Hanton.
2As best we can discern, in making this statement, Powell was claiming that the police
coerced her into naming Appellant as the shooter because they were unable to locate a
witness, i.e., the “original witness,” that previously implicated Appellant in Victim’s murder.
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Appellant as a drug dealer. Id. at 188 (asserting that Appellant “got the drug block at
Union and Melon Street [sic]”).
During Hall’s trial testimony, he indicated that he felt induced by the police to give
a statement implicating Appellant, as detectives informed him that they knew that
Appellant and his codefendant committed the killing. Id. at 287 (“They were like, We know
them two did it.”). In addition, he denied having any direct knowledge of the shooting,
asserting that he only learned about it from “word on the street.” Id. at 311. The
prosecutor examined Hall by utilizing his previous statement to police, wherein Hall
asserted that Appellant “liked to shoot people” and that Appellant carried “all kinds” of
guns. Id. at 295 and 303, respectively. Of further note, Detective Keen later read to the
jury Hall’s previous statement to police. That statement, inter alia, referenced a person
named Tanisha, who allegedly told Hall that Appellant shot Victim. N.T., 8/29/2012, at
182-83.
We further highlight that, after defense counsel’s closing arguments, which largely
focused on perceived holes in the Commonwealth’s case, the prosecutor stated in his
closing argument, inter alia, as follows:
And there’s a couple things that you’re going to hear in part of the
instruction, in part of the law, that are really important. You know, one of the
first things is that you are to take this evidence as a whole, not in a vacuum,
and that’s important. You’re not supposed to do what [defense] counsel
says and just say, Well, there’s one problem with that, so we will throw that
out. Problem with this, we will throw that out. We will throw that out.
Because if you’re looking to do that you find a problem with everything and
anything. That’s what the law says, you look at it all together, you don’t look
at it in a vacuum.
N.T., 8/30/2012, at 242.
The jury ultimately found Appellant guilty of the charged offenses. For Appellant’s
first-degree murder conviction, the trial court sentenced Appellant to life in prison without
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the possibility of parole. Following an unsuccessful direct appeal of his judgment of
sentence,3 Appellant filed the PCRA petition that is the subject of this appeal.
In his PCRA petition, Appellant raised several claims of ineffective assistance of
counsel.4 Relevant to the instant matter, Appellant first claimed that his trial counsel
rendered ineffective assistance by failing to object to the following alleged hearsay
testimony presented at his trial: (1) Powell’s account that police told her that they had
statements from other persons but lost their “original witness;” (2) Powell’s testimony that
a friend informed her that Appellant and his codefendant committed the murder in
question; (3) Hall’s declaration that detectives stated to him that they knew “them two did
it;” (4) Hall’s testimony that he knew Appellant and his codefendant and that the rumor on
the street was that they murdered Victim; and (5) Detective Keen reading Hall’s previous
statement that someone named Tanisha said that Appellant committed the murder.
Appellant further suggested that trial counsel was ineffective for failing to object
when the Commonwealth violated Pennsylvania Rule of Evidence 404(b)5 by admitting
3 Commonwealth v. Coleman, 102 A.3d 536 (Pa. Super. 2014) (unpublished
memorandum) (affirming Appellant’s judgment of sentence); Commonwealth v. Coleman,
102 A.3d 983 (Pa. 2014) (denying allowance of appeal from the Superior Court’s
memorandum affirming Appellant’s judgment of sentence).
4“It is well-settled that counsel is presumed to have been effective and that the petitioner
bears the burden of proving counsel’s alleged ineffectiveness.” Commonwealth v.
Wholaver, 177 A.3d 136, 144 (Pa. 2018). “To overcome this presumption, a petitioner
must establish that: (1) the underlying substantive claim has arguable merit; (2) counsel
did not have a reasonable basis for his or her act or omission; and (3) the petitioner
suffered prejudice as a result of counsel’s deficient performance[.]” Id.
5 Pennsylvania Rule of Evidence 404(b) provides, in part, as follows:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person's character in order to show that on a
particular occasion the person acted in accordance with the character.
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into evidence the following statements regarding Appellant’s prior bad acts and poor
character: (1) Powell identifying Appellant as the “guy with the drug block[;]” and (2) Hall’s
statement that Appellant has multiple guns and likes to shoot people.6 Lastly, Appellant
claimed that trial counsel was ineffective when he failed to object to a portion of the
prosecutor’s closing statement, as quoted supra. In this regard, Appellant contended
that, during his closing argument, the prosecutor “impermissibly reduced the burden of
proof by telling the jury that the defense was wrong in analyzing individual failings in the
prosecution[’s] case, and that they must look at the entire package.” PCRA Petition,
9/30/2015, at ¶10(e)(i).
After the Commonwealth filed a motion to dismiss and the PCRA court granted
multiple continuances, the court issued notice pursuant to Pa.R.Crim.P. 907 that it
intended to dismiss Appellant’s PCRA petition within twenty days without holding an
evidentiary hearing. Appellant did not respond to the court’s Rule 907 notice. On
December 1, 2017, the court entered an order dismissing Appellant’s PCRA petition. The
court authored an opinion in support of that order.
As to the claims of ineffective assistance of counsel presently before this Court,
the PCRA court found that they failed the arguable merit prong of the ineffective-
assistance-of-counsel standard. Stated succinctly, the court concluded that the alleged
hearsay testimony of Powell and Hall was not hearsay because it was not offered for the
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident. In
a criminal case this evidence is admissible only if the probative value
of the evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404.
6 See, e.g., Commonwealth v. Robinson, 721 A.2d 344, 351 (Pa. 1998) (“The general rule
is that where a weapon can not be specifically linked to a crime, such weapon is not
admissible as evidence”).
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truth of the matters asserted. Rather, the court opined, the testimony simply explained
why the witnesses were recanting their previous statements to police and was useful to
the jury’s credibility determinations. As to Detective Keen’s reading of the portion of Hall’s
previous statement to police where it mentioned what Tanisha allegedly told Hall, the
court asserted, inter alia, that counsel, in fact, objected to this testimony, and the court
overruled the objection.
Similarly, the PCRA court concluded that trial counsel unsuccessfully objected to
testimony from Hall regarding Appellant’s prior bad acts and poor character. The court
nonetheless further concluded that the testimony from Hall and Powell concerning
Appellant’s prior bad acts and poor character was properly admitted for the limited
purpose of establishing a motive for the killing.
Lastly, the PCRA court reasoned that trial counsel was not ineffective for failing to
object to the portion of the prosecutor’s closing statement quoted supra (prosecutor telling
the jury not to focus on individual aspects of the evidence but on the evidence as a whole),
because it was a fair response to Appellant’s closing argument that the Commonwealth’s
case was missing important evidence. Appellant timely filed a notice of appeal.
In an unpublished memorandum, a three-judge panel of the Superior Court
unanimously affirmed the PCRA court’s order dismissing Appellant’s petition.
Commonwealth v. Coleman, 215 A.3d 631 (Pa. Super 2019) (unpublished). Save for a
few minor instances that we discuss below, the Superior Court rejected Appellant’s claims
of ineffective assistance of counsel simply by agreeing with the PCRA court’s assessment
of the arguable merit prong of those claims. Of primary concern to this matter, the
Superior Court agreed with the PCRA court’s conclusion that Appellant’s claim that trial
counsel rendered ineffective assistance by failing to object to the alleged hearsay
testimony of Powell and Hall lacked arguable merit because the testimony was not offered
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for the truth of the matters asserted but, rather, for the limited purposes of explaining why
the witnesses were recanting their previous statements to police and to better permit the
jury to assess their credibility. Superior Court Memorandum at 6-8.
Appellant filed a petition for allowance of appeal, which this Court granted to
consider the following questions, as phrased by Appellant:
(1) Where multiple inculpatory hearsay statements are improperly admitted
against an accused, may a reviewing court dismiss the claim by averring
the statements were not offered for their truth if the jury was not so
instructed?
(2) Whether, in the face of this Court’s clear [Pa.R.E.] 404(b) decisional law
barring mention of guns not linked to the crime at hand, a prosecutor may
introduce evidence that an accused “liked to shoot people” and carried all
types of guns, a preserved claim the Superior Court never addressed?
(3) May a prosecutor[] tell jurors that defense counsel was wrong in urging
them to look at individual errors in the case and that they must instead “look
at it all together,” an urging that reduces the burden of proof?
Commonwealth v. Coleman, 217 A.3d 791 (Pa. 2019).
Before we dispose of Appellant’s issues, we pause to address a threshold matter
raised by the Commonwealth. Specifically, the Commonwealth dedicates a significant
portion of its brief to challenging the manner in which Appellant frames his issues and
presents his arguments, i.e., as if he is raising preserved claims of trial court error on
direct appeal from his judgment of sentence. E.g., Commonwealth’s Brief at 15-20. In
other words, the Commonwealth objects to, inter alia, Appellant’s failure to present his
claims via the three-prong ineffective-assistance-of-counsel standard, which is outlined
supra at page 4, n.4.
In reply, Appellant points out that the lower courts dismissed his various claims of
ineffective assistance of counsel solely on the basis that they fail to meet the arguable
merit prong of the ineffective-assistance-of-counsel standard. Appellant’s Reply Brief at
1-2. He states that, in the current appeal, he is solely challenging the lower courts’
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conclusions that his claims lack arguable merit. Id. at 2. Appellant then asserts that there
is no authority requiring an appellant to address the remaining prongs of the ineffective-
assistance-of-counsel standard on appeal where the PCRA court dismisses a petition on
the basis that the claim lacks arguable merit. Id. at 4.
Generally speaking, if a PCRA petitioner seeks review of claims of ineffective
assistance of counsel in a direct appeal from a PCRA court order denying a PCRA
petition, the petitioner must present the appellate court with argument on all three prongs
of the ineffective-assistance-of-counsel standard. See, e.g., Commonwealth v. Natividad,
938 A.2d 310, 322 (Pa. 2007) (“Further, appellants continue to bear the burden of
pleading and proving each of the [ineffective assistance of counsel] elements on appeal
to this Court.”). Here, however, Appellant is not appealing directly from an order denying
his PCRA petition and wholesale rejecting his claims of ineffective assistance of counsel.
Rather, this Court granted discretionary review to examine the manner in which the lower
courts addressed the arguable merit prong of those claims. We, therefore, find no fault
in Appellant’s advocacy to this Court, as it aligns with the issues that the Court decided
to address.
We now turn our attention to Appellant’s first issue. As detailed above, in his PCRA
petition, Appellant averred that trial counsel was ineffective for failing to object to several
statements made by Powell and Hall on the ground that the statements constituted
inadmissible hearsay. The lower courts concluded that these claims lack arguable merit
because the complained-of testimony was not hearsay, as it was not admitted for the truth
of the matters asserted. Instead, the courts concluded, these statements were admitted
to explain why Powell and Hall were recanting their previous statements to police and to
allow the jury to better assess their credibility. Appellant contends that this conclusion is
erroneous because the trial court did not instruct the jury to consider the testimony of
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Powell and Hall for the limited purposes of understanding the witnesses’ reasons for
recanting their previous statements and assessing their credibility.7
In response, the Commonwealth does not directly attack the substance of
Appellant’s chief contention that the lower courts erred by concluding that the complained-
of testimony was not hearsay because it was not offered for the truth of the matters
asserted, despite the fact that the trial court did not instruct the jury to consider the
testimony for limited purposes. Commonwealth’s Brief at 21-33. Instead, the
Commonwealth offers other theories as to why Appellant’s claims of ineffective
assistance of counsel fail. More specifically, the Commonwealth argues that: (1) the
complained-of testimony is not, in reality, hearsay at all; and (2) the claims fail the
reasonable basis and prejudice prongs of the ineffective-assistance-of-counsel standard.
See, e.g., Commonwealth’s Brief at 33 (stating that Appellant “does not address the non-
hearsay nature of the evidence, counsel’s plain reasonable basis for his actions, or lack
of prejudice”). We, however, will not address these arguments, as they are outside the
scope of the issues that this Court granted allowance of appeal to consider. See Watts,
supra at n.7.
We have no hesitation in agreeing with Appellant’s assignment of error regarding
the manner in which the lower courts addressed the alleged hearsay testimony of Powell
and Hall. Indeed, it is well-settled that evidence which is admitted for a limited purpose
must be accompanied by a limiting instruction to focus the jury’s consideration of the
7 Appellant seemingly complains that the lower courts made the same erroneous
conclusion regarding Detective Keen reading Hall’s statement to the jury. Appellant’s
Brief at 15, n.2. Yet, the Superior Court clearly found that trial counsel was not ineffective
for failing to object to Detective Keen reading this statement because counsel, in fact, did
unsuccessfully object to this testimony. Superior Court Memorandum at 8-9. The
Superior Court’s conclusion in this regard is outside the scope of this Court’s grant of
allocatur; thus, we will not consider its propriety. See Commonwealth v. Watts, 23 A.3d
980, 982 n.2 (Pa. 2011) (declining to address an argument that fell outside the scope of
the issue that this Court granted allowance of appeal to address).
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evidence to its appropriate purpose. See, e.g., Commonwealth v. Covil, 378 A.2d 841,
845 (Pa. 1977) (“When evidence is admissible for a limited purpose, a defendant is
entitled to a limiting instruction.”); Commonwealth v. Claypool, 495 A.2d 176, 179 (Pa.
1985) (explaining that evidence of prior criminal acts that the defendant makes relevant
to prove the crimes with which he is charged is admissible; however, “such evidence must
be accompanied by a cautionary instruction which fully and carefully explains to the jury
the limited purpose for which that evidence has been admitted”); and Commonwealth v.
Billa, 555 A.2d 835, 842 (Pa 1989) (“Our cases establish that appellant was entitled to a
limiting instruction on the use that the jury could make of the challenged evidence which
was admissible only for a limited purpose.”) (emphasis in original). Here, the trial court
did not instruct the jury to consider the alleged hearsay testimony of Powell and Hall for
the limited purposes articulated by the lower courts. Thus, contrary to the conclusion of
those courts, the jury’s consideration of the testimony of Powell and Hall was unrestricted.
For these reasons, we find that the Superior Court erred in the manner in which it
disposed of the arguable merit prong of Appellant’s claims that his trial counsel was
ineffective for failing to object to the following alleged hearsay testimony presented at his
trial: (1) Powell’s account that police told her that they had statements from other persons
but lost their original witness; (2) Powell’s testimony that a friend told her that Appellant
and his codefendant committed the murder in question; (3) Hall’s declaration that
detectives informed him that they knew “them two did it;” and (4) Hall’s testimony that he
knew Appellant and his codefendant and that the rumor on the street was that they
committed the murder at issue in this case. Accordingly, we vacate in part the Superior
Court’s judgment and remand to that court to reconsider, in a manner consistent with this
Opinion, Appellant’s contention that the PCRA court erroneously rejected these claims of
ineffective assistance of counsel.
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We now will address Appellant’s second issue. As discussed above, in his PCRA
petition, Appellant claimed that trial counsel rendered ineffective assistance by failing to
object to Hall’s statement that Appellant carries guns and likes to shoot people. The
PCRA court did not grant Appellant relief on this claim, and Appellant contends that he
challenged this ruling in the Superior Court. The thrust of Appellant’s argument to this
Court is that the Superior Court failed to address this issue, depriving him of meaningful
appellate review.
Regarding the substance of Appellant’s argument, the Commonwealth notes that
the Superior Court did not “wholly ignore” Appellant’s claim regarding Hall’s statement
concerning Appellant’s affinity for guns and shooting people but concedes that “the
Superior Court could have discussed the claim at greater length.” Commonwealth’s Brief
at 37 n.15. The Commonwealth nonetheless advocates that Appellant is not entitled to
further review of the issue because it allegedly is meritless and waived for the reasons
we rejected supra, i.e., Appellant’s failure to address all three prongs of the ineffective-
assistance-of-counsel standard. Commonwealth’s Brief at 37.
Appellant presented the PCRA court with, inter alia, a claim that his trial counsel
was ineffective for failing to object to Powell’s statement that Appellant was involved in
dealing drugs and a claim that counsel was ineffective for failing to object to Hall’s
statements regarding Appellant carrying guns and his desire to use them. The PCRA
court rejected both claims. In his Superior Court brief, Appellant challenged the PCRA
court’s ruling as to both of these claims, albeit in a singular sub-issue. Appellant’s
Superior Court Brief at 21-23.
Understandably, in its memorandum, the Superior Court mentioned these two
claims in tandem. Superior Court Memorandum at 9. Further, the court definitively
rejected Appellant’s claim that counsel rendered ineffective assistance by failing to object
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to Powell’s drug-dealing statement. Id. at 10. However, the court did not directly resolve
Appellant’s contention that the PCRA court improperly rejected his claim that trial counsel
was ineffective for failing to object to Hall’s statement that Appellant carries guns and
likes to shoot people. Consequently, we respectfully further vacate the Superior Court’s
judgment, and on remand, we instruct the Superior Court to address Appellant’s claim of
PCRA court error in the first instance.
We now will focus on Appellant’s final issue, which involves his claim that trial
counsel was ineffective for failing to object to the portion of the prosecutor’s closing
argument wherein, Appellant suggests, the prosecutor “impermissibly reduced the burden
of proof by telling the jury that the defense was wrong in analyzing individual failings in
the prosecution[’s] case, and that they must look at the entire package.” PCRA Petition,
9/30/2015, at ¶10(e)(i). The PCRA court rejected this claim on the basis that it lacked
arguable merit because the prosecutor’s comments were a fair response to Appellant’s
counsel’s closing argument that focused on the alleged weakness of the
Commonwealth’s evidence against Appellant. On appeal, the Superior Court also found
that the claim lacks merit, albeit on different grounds, asserting that the prosecutor’s
statement “regarding the evidence did not change the burden of proof.” Superior Court
Memorandum at 12. The court then observed that the “trial court clearly explained the
applicable burden of proof[ ]” and that the “jury is presumed to have followed the trial
court’s instructions.” Id. (citations omitted).
In his brief to this Court, Appellant does not address the reasoning of the lower
courts. Appellant’s Brief at 22-25. Further, Appellant’s argument may be reduced to his
bald assertion that “the prosecutor went to[o] far, as it is impermissible to tell jurors to
disregard individual problems in the prosecution[’s] case and that an acquittal based on
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a problem is not permissible.”8 Appellant’s Brief at 24. The Commonwealth, on the other
hand, believes that the lower courts properly dismissed this claim of ineffective assistance
of counsel on the ground that it lacks arguable merit. We agree with the Commonwealth.
Indeed, we conclude that the Superior Court’s rationale for rejecting Appellant’s
claim is sound. More specifically, to the extent that the complained-of portion of the
prosecutor’s closing argument remotely suggested that the Commonwealth carried a
burden of proof less than “beyond a reasonable doubt,” the trial court’s instructions to the
jury made clear that the Commonwealth was required to prove Appellant guilty beyond a
reasonable doubt, N.T., 8/30/2012, at 301-03; the court further instructed the jury as to
the meaning of proof “beyond a reasonable doubt,” id. As the Superior Court correctly
observed, we must presume that the jury followed the trial court’s proper instructions.
Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011) (“The law presumes that the
jury will follow the instructions of the court.”) (citations omitted). Consequently, this issue
warrants no further relief.
For all of the reasons discussed above, we affirm the Superior Court’s judgment in
part, vacate the judgment in part, and remand to that court for further consideration of
Appellant’s issues as detailed supra. Jurisdiction relinquished.
Chief Justice Saylor and Justices Todd, Donohue, Dougherty, Wecht and Mundy
join the opinion.
8 Appellant primarily relies upon one case in support of his argument, Wheeler v. United
States, 930 A.2d 232 (App. D.C. 2007). Appellant’s Brief at 23-24. However, as the
Commonwealth points out, Wheeler is inapposite of Appellant’s position, as it has nothing
to do with the boundaries of a prosecutor’s closing argument. Commonwealth’s Brief at
44. Instead, this non-binding opinion addresses, inter alia, an appellant’s claim that a trial
court’s instructions, not a prosecutor’s argument, lowered the state’s burden of proof.
Wheeler, 930 A.2d at 240-49.
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