230 A.3d 368
Pa. Super. Ct.2020Background
- In June 2009 Colon allegedly returned to a bar and fired multiple rounds, killing one person and wounding others; several eyewitnesses identified him in photo arrays or at trial.
- Colon’s first trial in 2011 ended in a hung jury; second trial in September 2012 resulted in convictions including first-degree murder and a life sentence.
- Colon filed a PCRA petition asserting several ineffective-assistance claims: (1) trial counsel failed to secure a Kloiber jury charge regarding eyewitness ID, (2) counsel failed to obtain or preserve expert eyewitness-identification testimony (post-Walker), (3) PCRA court wrongly denied funds for a forensic psychologist, and (4) counsel failed to object to rebuttal testimony by Officer Santiago about alleged prompting of an alibi witness.
- Trial record showed trial counsel requested a Kloiber charge but the court denied it because the two challenged witnesses did not make in-court identifications; several other witnesses consistently identified Colon.
- At trial an officer testified in rebuttal that he overheard an exchange from a prior trial suggesting an alibi witness was prompted; defense counsel cross-examined but did not object.
- The PCRA court dismissed the petition; the Superior Court affirmed the dismissal and denied an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to obtain Kloiber charge | Colon: counsel ineffective for not securing Kloiber instruction for witnesses (Tate, Collins) | Court/PCRA: counsel did request Kloiber; the witnesses did not make in-court IDs so instruction not required | Denied — counsel requested the charge; Kloiber not required where witnesses made no in-court ID; no arguable merit or prejudice |
| Failure to secure expert testimony on eyewitness ID (Walker) / failure to move to remand on appeal | Colon: Walker (2014) made expert testimony admissible; counsel should have sought remand or expert while direct appeal was pending | Court: counsel judged by law at trial (pre-Walker expert inadmissible); issue not preserved at trial so Walker cannot be applied retroactively | Denied — counsel cannot be ineffective for failing to predict Walker; issue was not preserved and thus not entitled to retroactive relief |
| Denial of funds for forensic psychologist | Colon: indigent; needed expert to rebut Commonwealth eyewitness-based case | Court/PCRA: request not properly shown in record; expert testimony was inadmissible at trial under then-law; Colon failed to show necessity or likely different outcome | Denied — PCRA court did not abuse discretion; claim not cognizable as after-discovered evidence and no showing of materiality or prejudice |
| Failure to object to Officer Santiago’s rebuttal testimony about alleged prompting | Colon: testimony about prior prompting was prejudicial and too remote; counsel ineffective for not objecting | Court/PCRA: testimony was proper impeachment/rebuttal on alibi and coaching; admissible; defense cross-examined | Denied — rebuttal impeachment was admissible; no arguable merit to ineffectiveness claim |
Key Cases Cited
- Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014) (held expert testimony on eyewitness identification is not per se inadmissible)
- Commonwealth v. Jones, 811 A.2d 994 (Pa. 2002) (new rules issued on direct appeal apply only if preserved at trial; counsel not ineffective for failing to predict change)
- Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954) (jury instruction advising caution about eyewitness ID under certain circumstances)
- Commonwealth v. Sanders, 42 A.3d 325 (Pa. Super. 2012) (Kloiber instruction not required where witness declines or fails to make in-court ID)
- Commonwealth v. Abdul-Salaam, 678 A.2d 342 (Pa. 1996) (prior rule treating expert eyewitness-ID testimony as per se inadmissible)
- Commonwealth v. Sandusky, 203 A.3d 1033 (Pa. Super. 2019) (standard for ineffective assistance of counsel under PCRA)
- Commonwealth v. Reid, 99 A.3d 470 (Pa. 2014) (trial court has discretion to grant public funds for experts; PCRA funding reviewed for abuse of discretion)
- Commonwealth v. Ballard, 80 A.3d 380 (Pa. 2013) (rebuttal testimony that impeaches or shows coaching is admissible)