J-S45020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TYRICK DONTE’ WALKER

                            Appellant                No. 148 MDA 2015


                Appeal from the PCRA Order of January 12, 2015
               In the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0002608-2011


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                       FILED SEPTEMBER 22, 2015

       Appellant Tyrick Donte’ Walker appeals the January 12, 2015 order

denying his petition for relief under the Post-Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541, et seq. Based upon the sound reasoning of the PCRA

court, and for the reasons set forth below, we affirm.

       In our prior memorandum affirming Appellant’s judgment of sentence,

we found the trial evidence sufficient to establish the following account of

the events underlying Appellant’s charge and conviction of first-degree

murder1:

       Reshanna Sexton testified that in the winter of 2011, she was
       the girlfriend of the victim in this case, Mark McLaughlin. N.T.
____________________________________________


*
       Former Justice specially assigned to the Superior Court.
1
       See 18 Pa.C.S. 2502(a).
J-S45020-15


     Trial, 11/5-9/2012, at 359.        She testified that she knew
     Appellant and another man, Mike Weaver, because they were
     friends with the victim. Id. Ms. Sexton explained that in April of
     2011, she and all three men were homeless, and moved
     together into “a campsite down near the river” that was
     composed of several tents. Id. at 361. On April 4, 2011, Ms.
     Sexton worked until approximately 3:30 p.m. and then returned
     to the campsite, where she observed the victim and Mr. Weaver
     “drinking a couple of beers.” Id. at 362. Shortly thereafter,
     Mr. Weaver and the victim began arguing, and Mr. Weaver went
     inside his tent “and refused to respond to [the victim] anymore.”
     Id. at 364-66. Meanwhile, Appellant, who had been present
     during the victim’s argument with Mr. Weaver, also retreated
     into this tent. Id. at 367.

     Ms. Sexton testified that Appellant later emerged from his tent
     with a suitcase and “sort of tossed his tent to the side.” Id.
     Appellant then went to Mr. Weaver’s tent, told him to “watch
     [his] stuff,” and began to leave the campsite. Id. at 368.
     However, Appellant “came running back” to the campsite “and
     lunged at [the victim].” Id. at 369. Ms. Sexton stated that
     Appellant “grabbed [the victim] by the throat and . . . the force
     knocked [the victim] backwards into a rock.” Id. at 370-71. As
     Appellant was attacking the victim, Appellant said, “I’m sick of
     hearing your mouth.” Id. at 371. Ms. Sexton claimed that the
     fight moved onto a tarp where Appellant’s tent had been, at
     which point Appellant “climbed on top of [the victim]” with “[h]is
     knees . . . pinning [the victim’s] arms.” Id. Appellant began
     hitting the victim in his head and face with both of his fists as
     Ms. Sexton was “screaming for it to stop.” Id. at 372.

     Ms. Sexton testified that after the victim sustained about seven
     or eight punches to his head by Appellant, the victim became
     motionless. Id. at 372-73. Appellant climbed off the victim, and
     the victim rolled onto his right side and away from Appellant.
     Id. at 373. Appellant then “laid down behind [the victim] and
     wrapped his arm around his throat.” Id. Ms. Sexton stated that
     the victim, who had been struggling “weakly,” became
     motionless again. Id. at 374. Ms. Sexton continued to scream
     for Appellant to stop, to which Appellant replied, “he wants me
     to kill him.” Id. Ms. Sexton testified that after the victim
     became still in Appellant’s “choke hold,” Appellant “grab[bed]
     [the victim] by his shirt collar and drag[ged] him over to the
     water.” Id. Ms. Sexton followed Appellant and the victim down
     to the water and explained what she saw as follows:

                                   -2-
J-S45020-15


        [Ms. Sexton]: There was a lot of blood in the water. [The
        victim] was on his stomach in the water with his head
        towards—towards dry ground. [Appellant] had his right
        foot on [the victim’s] back. [The victim’s] head wasn’t
        under water. He was struggling to keep it up.

     Id. at 376. Ms. Sexton testified that the victim eventually
     stopped moving, and Appellant moved away from the victim and
     made a phone call. Id. at 378. Eventually, an “acquaintance” of
     the group, Jim Wollard, arrived at the campsite, and he and
     Appellant pulled the victim out of the water. Id.

     Mr. Wollard began CPR on the victim while Appellant dialed 911.
     Id. at 379. Eventually, a police officer arrived at the scene to
     find Mr. Wollard attempting to revive the victim. Id. at 270.
     The officer testified at trial that he assisted Mr. Wollard with CPR
     until the paramedics arrived and pronounced the victim dead.
     Id. at 271. The officer testified that he observed that the victim
     had “large cuts, gashes on his face and across his nose,” and
     that he also had “gravel, [and] mud in his mouth.” Id. at 270-
     71.

     When Appellant took the stand, he testified similarly to
     Ms. Sexton regarding the argument between Mr. Weaver and the
     victim. Appellant claimed that when he retreated into his tent,
     he heard the victim say that he would “tear down [Appellant’s]
     tent,” and that “nobody down here [was] gonna [sic] do nothing
     about it.” Id. at 448. Appellant testified that because he felt
     threatened by these comments, he decided to leave the
     campsite. Id. at 449. However, as Appellant was leaving, the
     victim made more threatening remarks. Id. at 452. Appellant
     testified that he began to think to himself, “you know, why do I
     have to be threatened, why do I have to be made to feel this
     way[?] Why do I have to be the one who’s leaving[?]” Id.
     Accordingly, Appellant went back to the campsite “with the
     intentions of confronting” the victim. Id.

     When he arrived at the campsite, Appellant admitted that he
     grabbed the victim and “was shaking him” while saying “why do
     you got to be like this.” Id. at 453. Appellant testified that both
     men fell to the ground, with Appellant landing on top of the
     victim. Id. Appellant claimed that the victim began yelling at
     him, saying, “do it, because I ain’t [sic] got nothing to live for,
     you might as well do it.” Id. at 453-54. Appellant also testified
     that:


                                    -3-
J-S45020-15


          [Appellant]: [The victim] yells in my face, he says, [“]you
          better hit me, you better smash me, you better float me
          up the river.[”] And this is as close to the wording as I
          remember.      And he says[, “]because if you let me
          up[. . .”]—and in all honesty, that’s the last thing I
          remember him saying.

      Id. at 454.

      Appellant stated that he feared that if he let the victim get up,
      the victim would kill him. Id. at 455. Appellant testified that he
      began to hit the victim “three or four times” and then “put him in
      a headlock” in an attempt to render the victim unconscious so he
      could not harm Appellant. Id. at 456-57. Appellant claimed
      that when the victim stopped moving, he let him go, but “within
      a second,” the victim moved to get up. Id. at 457. Appellant
      then grabbed the victim and pulled him toward the river, at
      which point both he and the victim fell into the water. Id. He
      testified that the victim was floating on his back with his face out
      of the water. Id. at 458. At that point, Appellant realized “this
      wasn’t really something [he] wanted to do,” and tried to pull the
      victim out of the water but was not able to do so. Id. He then
      called Jim Wollard for help, and when Jim arrived, the two men
      pulled the victim out of the water. Id. at 462-63. Appellant
      claimed that after Mr. Wollard began CPR, Appellant did chest
      compressions on the victim and then called 911. Id. at 463,
      465.

Commonwealth v. Walker, 2205 MDA 2012, slip op. at 4-8 (Pa. Super.

Sept. 10, 2013) (citations modified).

      Following a five-day trial, a jury found Appellant guilty of first-degree

murder.    Id. at 2.   Accordingly, on November 15, 2012, the trial court

sentenced Appellant to a mandatory term of life imprisonment.         Appellant

timely appealed, and, on June 14, 2013, his attorney filed a brief and a

petition to withdraw as counsel pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),

opining that Appellant had no non-frivolous issues to present on appeal.

                                     -4-
J-S45020-15



After reviewing the technical sufficiency of counsel’s Anders/Santiago brief

and   conducting      an    independent        review   of   the   record,   we   agreed.

Accordingly, on September 10, 2013, we granted counsel’s petition to

withdraw and affirmed Appellant’s judgment of sentence.

       Appellant timely filed the PCRA petition sub judice on April 17, 2014.

The PCRA court appointed new counsel to represent Appellant during the

PCRA proceedings.          In his petition, Appellant contended that trial counsel

was ineffective for failing to call Wollard as a witness in support of

Appellant’s theory of self-defense.             The PCRA court held a hearing on

September 10, 2014. At the hearing, Appellant presented three witnesses—

Wollard, trial counsel, and Appellant. See PCRA Court Opinion, 1/12/2015,

at 1-2.    The PCRA court provides a detailed and uncontested account of

these three witnesses’ testimony at the PCRA hearing, and we adopt its

account as our own.2 See Id. at 2-4.

       The essence of Appellant’s argument, before the PCRA court and

before this Court, is that Wollard could have corroborated Appellant’s

contention that he acted in self-defense by testifying to the victim’s violent

propensities and the presence of deadly weapons at the camp site.                   After

reviewing the standards governing a PCRA petitioner’s claim that counsel

was constitutionally ineffective, the PCRA court determined that no relief was

____________________________________________


2
      A copy of the PCRA court’s opinion is attached hereto for ease of
reference.



                                           -5-
J-S45020-15



due.      Specifically, the PCRA court noted that several other witnesses

established the victim’s violent tendencies, and that Wollard’s account of the

relevant events differed from Appellant’s in certain particulars that would

have contradicted and undermined the credibility of Appellant’s own

testimony.      Consequently, on January 12, 2015, the PCRA court denied

Appellant’s petition, and this timely appeal followed.

         On January 22, 2015, the PCRA court entered an order pursuant to

Pa.R.A.P. 1925(b) directing Appellant to file a concise statement of the

errors complained of on appeal. On February 2, 2015, Appellant timely filed

his Rule 1925(b) statement raising two issues, only one of which is pursued

before this Court. To wit, before this Court, Appellant raises the following

issue:

         Whether the [PCRA court] erred in denying post-conviction relief
         where trial counsel was ineffective in failing to call James
         Wollard as a witness[] to testify regarding the violent
         propensities of the victim, the rescue efforts and remorse
         of[ ]Appellant, and the presence of weapons at the crime scene,
         in a case asserting a defense of self-defense?

Brief for Appellant at 4.

         We review a denial of a post-conviction petition to determine whether

the record supports the PCRA court’s findings and whether its order is

otherwise free of legal error.     Commonwealth v. Faulk, 21 A.3d 1196,

1199 (Pa. Super. 2011). To be eligible for relief under the PCRA, Appellant

must establish that his conviction or sentence resulted from one or more of

the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2), including

                                      -6-
J-S45020-15



constitutionally    ineffective   assistance   of   counsel,   see   42      Pa.C.S.

§ 9543(a)(2)(ii).

      In his sole argument on appeal, Appellant asserts that trial counsel

was ineffective for failing to present Wollard’s testimony at trial, upon the

basis that Wollard would have corroborated Appellant’s testimony regarding

the victim’s violent propensities, which, in turn, would have buttressed

Appellant’s claims that he believed his actions were reasonable under the

circumstances. The test for ineffective assistance of counsel is substantively

the   same     under   the   Federal   and   Pennsylvania   Constitutions.      See

Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.

Jones, 815 A.2d 598, 611 (Pa. 2002).            Under Pennsylvania’s approach,

Appellant must demonstrate that (1) his underlying claim has arguable

merit; (2) the particular course of conduct pursued by counsel did not have

some reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the proceedings would have been different.          See Commonwealth v.

Steele, 961 A.2d 786, 796-97 (Pa. 2008). A failure to satisfy any prong of

the test for ineffectiveness will require rejection of the claim.     Jones, 815

A.2d at 611.

      In addition to the above factors, in order to show that trial counsel was

ineffective for failing to present Wollard’s testimony, Appellant must also

establish the following criteria:


                                        -7-
J-S45020-15


      [T]he existence of and the availability of the witness[;] counsel’s
      actual awareness, or duty to know, of the witness[;] the
      willingness and ability of the witness[] to cooperate and appear
      on the defendant’s behalf[;] and the necessity for the proposed
      testimony in order to avoid prejudice. Moreover, Appellant must
      show how the uncalled witnesses’ testimony would have been
      beneficial under the circumstances of the case.

Commonwealth v. Gibson, 951 A.2d 1110, 1133-34 (Pa. 2008) (internal

citations and quotation marks omitted). To demonstrate prejudice sufficient

to warrant relief, Appellant must establish that “the absence of the

testimony of the witness was so prejudicial as to have denied [him] a fair

trial.” Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012).

      Although Wollard appears to have been a willing and available trial

witness, who was prepared to testify in some regards just as Appellant

contends he would have done, we are constrained to agree with the PCRA

court that Appellant failed to establish trial counsel’s lack of a reasonable

basis for his decision to call Wollard and to establish prejudice, insofar as

Wollard’s testimony would have been cumulative in the areas upon which

Appellant focuses his brief argument.       See Brief for Appellant at 8-9.

Furthermore, we find that the PCRA court’s factual findings are supported by

the record and free of legal error. Because we find that the PCRA court’s

account of the trial and PCRA proceedings, as well as its reasoning in

support of rejecting Appellant’s arguments, are sound and comprehensive,

see P.C.O. at 5-7, we adopt its reasoning as our own. A copy of the PCRA

court’s opinion is attached for ease of reference.


                                     -8-
J-S45020-15


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2015




                          -9-
                                                                                      Circulated 08/28/2015 04:28 PM


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                                                 OPINION
    BY: KNISELY, J.                                                                     January 12, 2015

            Before the Court is Petitioner Tyrick Donte Walker's petition filed pursuant to the Post

    Conviction Relief Act C'PCRA"). 1 In his petition, Defendant alleged that he was entitled to

    PCRA relief on the basis that trial counsel was ineffective for failing to call James Wollard to

    testify at trial. The Court held a hearing on the matter on September 10, 2014 and ordered briefs

    be filed by the parties. Those briefs having been filed, the matter is now ripe for disposition.

                                             BACKGROUND

           On April 4, 2011, Petitioner and three other friends left the winter shelter for the

    homeless in Columbia, Pennsylvania and made their way to the bank of the Susquehanna River,

    about 500 yards north of the Route 30 bridge. Later that evening, there was a violent altercation

    between Petitioner and Mark McLaughlin ("victim"), which resulted in the victim's death. After

    the victim was beat and put into a chokehold, he was held underwater until he became

motionless. After the victim became motionless, Petitioner called James Wollard, a pastor from

the winter shelter, for assistance. Mr. Wollard arrived and attempted to revive the victim while

Petitioner called 911. Petitioner was charged with one count of Criminal Homicide2 as a result

of this incident. On November 9, 2012, after a 4 day trial, a jury found Petitioner guilty of first

degree murder. On November 15, 2012, Petitioner received a sentence of life imprisonment.



1
    42 Pa.C.S.A. §§ 9541-9546.
2
    18 Pa.C.S. §2501(a).
                                                                                 Circulated 08/28/2015 04:28 PM




         Petitioner filed a Notice of Appeal to the Superior Court of Pennsylvania on December

 14, 2012. The Superior Court affirmed the judgment on September 10, 2013. Defendant timely

 filed his PCRA petition on April 17, 2014 and present counsel was appointed. Counsel filed an

 Amended PCRA on June 23, 2014 alleging that trial counsel was ineffective for failing to present

 James Wollard as a witness at trial.

        An evidentiary hearing was held on September 10, 2014. At the hearing, the defense

presented three witnesses, James Wollard, trial counsel Samuel Encarnacion, and Petitioner.

James Wollard testified that he had provided Petitioner and his friends with some supplies for

their "campsite" on the Susquehanna River. (N. T. PCRA Hearing, 9/ 10/14, p. 7). He testified

that on April 4, 2011, he received a call from Petitioner and immediately left his house for the

campsite. Id at 6-7. He testified that when he arrived at the campsite, he saw Petitioner

standing in knee-deep water in the river and also saw the body of the victim laying at the river's

edge. Id. at 10. He testified that he and Petitioner removed the victim from the water and

testified that the victim was "horrible looking with cuts and bruises and blood and mucus coming

through his mouth and out his nose." Id at 10. Mr. Wollard testified that he attempted to revive

the victim while Petitioner prayed. Id at 11. Mr. Wollard testified that he performed CPR and

the victim began breathing sporadically. Id. at 12. He testified that he "lost" the victim, that

another person at the campsite called 911, and that he continued performing CPR on the victim

until paramedics arrived. Id at 12-13. He testified that he knew the victim from the winter

shelter; he testified that the victim would get angry and want to fight when he was drunk;

however, when the victim was not drinking, Mr. Wollard never saw the victim get angry. Id. at

13-14. He testified that when the victim was in that state, he would scream and yell at people.

Id. at 14. Mr. Wollard testified that he was contacted by both the defense trial counsel and the



                                                 2
                                                                                   Circulated 08/28/2015 04:28 PM




 prosecutor for the case. Id. He testified that he was willing to testify at the time of trial and that

 he never said he would lie to help Petitioner. Id. at 14-15.

         On cross-examination, Mr. Wollard testified that he gave a statement to police the night

 of the incident that when he arrived at the campsite, Petitioner was standing over the victim's

body and the victim's face was in the water. Id. at 17-18. He testified that on April 4, 2011, he

told police the victim's face was bluish and he had a "not alive" look; he testified that he had to

clear sand and pebbles out of the victim's mouth and after that, the blood and mucus came out.

Id. at 19-21. He testified that he told the police on the night of the incident that the victim's face

was cut so badly it seemed like someone had used an apple corer. Id. at 21-22. Mr. Wollard

testified that he visited Petitioner several times in prison, that he also had information about

Petitioner's past that he had been informed he could not mention at trial and that he was very

upset and concerned that the information would not come out at trial. Id. at 25-27.

        Trial counsel Sam Encarnacion testified that at the time of trial, the theory of defense was

to be self-defense. Id. at 37. He also testified as to two specific reasons why he did not call Mr.

Wollard as a witness. First, he testified that Mr. Wollard gave a version of events inconsistent

with Petitioner's version, namely that Petitioner's version of the facts was that the victim's head

was not underwater when Mr. Wollard arrived, whereas Mr. Wollard had informed the defense

that the victim's head was underwater. Id. at 37-38. He then testified that the second, and main,

reason why he did not put Mr. Wollard on the stand at trial was that Mr. Wollard provided a

vivid description of how badly the victim looked when Mr. Wollard arrived, specifically the

amount of sand and gravel in the victim's mouth. Id. at 38. He testified that based on the

information he received from Mr. Wollard, it would more strongly point to a series of events in

which Petitioner held the victim underwater, pressing the victim's face into the riverbed, forcing

the victim to suck up the sand and gravel from the riverbed while he was trying to breathe. Id. at
                                                   3
                                                                                       Circulated 08/28/2015 04:28 PM




 38-39. Trial counsel also testified that Petitioner insisted on a theory of self-defense, which trial

 counsel felt would require Petitioner to testify, as only Petitioner could testify to the fear he felt

 from the victim. Id.at 41. Trial counsel testified that he would have preferred to make the

 argument that the killing was third-degree murder or manslaughter, and was prepared to present

reports and a doctor's testimony to support that theory; the doctor was not called because

Petitioner insisted on a theory of self-defense. Id. at 42-43.

         Trial counsel testified on cross-examination that, even without Mr. Wollard's testimony,

the defense was able to bring in the violent propensities of the victim through other witnesses.

Id. at 46. Trial counsel also testified that it was Petitioner's decision to testify because Petitioner

felt very strongly that he was justified in his actions. Id. 47. Trial counsel also testified on cross-

examination that he spent a tremendous amount of time preparing with Mr. Wollard and felt that

Mr. Wollard's testimony would not have helped the case for self-defense. Id. at 47-48.

Additionally, he testified that Mr. Wollard spend a lot of time with Petitioner at the prison,

something trial counsel had told Mr. Wollard that trial counsel was not comfortable with Mr.

Wollard doing, particularly if he was going to testify and be subject to cross examination. Id. at

48-49.

         Petitioner testified that trial counsel had told Petitioner that he should not testify at trial,

but when trial started, then trial counsel told Petitioner he would have to take the stand. Id.at 55.

Petitioner testified that it was his own choice to go with a theory of self-defense and that trial

counsel had advised Petitioner to plead guilty pursuant to a plea agreement for third degree

murder. Id. at 57. He testified that it was not his decision to testify at trial and that he only

testified because his trial counsel said he would need to testify. Id. at 58.




                                                     4
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                                           DISCUSSION

        Defendant' s claim challenges the effectiveness of his trial counsel. It is well-established

 that counsel is presumed effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052,

 2065 (1984). A PCRA petitioner bears the burden of rebutting that presumption by

 demonstrating that counsel's performance was deficient and that such deficiency prejudiced him.

 Id. The Pennsylvania Supreme Court divided the Strickland standard into three prongs, two

 prongs for deficient performance and one prong for prejudice. Com. v. Koehler, 36 A.3d 121,

 132 (Pa. 2012) (citing Com. v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987)). The resulting

 three prongs to prove counsel ineffective are: (1) the underlying claim has arguable merit; (2)

counsel's actions lacked an objective reasonable basis; and (3) the defendant was prejudiced by

counsel's act or omission. Id. Counsel will not be deemed ineffective if any reasonable basis

exists for his actions, and, even if counsel had no reasonable basis for his actions, a defendant is

not entitled to relief if he fails to demonstrate prejudice. Com. v. Loner, 836 A.2d 125, 133 (Pa.

Super. 2003)(citing Com. v. Douglas, 645 A.2d 226, 231-2)(Pa. 1994)).

        Prejudice in the context of ineffective assistance of counsel requires a demonstration that

there was a reasonable probability that but for counsel's error; the outcome of the proceeding

would have been difference. Com. v. Kimball, 724 A.2d 326, 331 (Pa. 1999). "A reasonable

probability is a probability sufficient to undermine confidence in the outcome." Com. v.

Chambers, 807 A.2d 872, 883 (Pa. 2002)(quoting Strickland v. Washington, 466 U.S. 668, 694

(1984)). Prejudice occurs when the errors were so serious as to deprive the defendant of a trial

whose result is reliable. Id

       When raising a claim of ineffectiveness for the failure to call a potential witness, a

petitioner satisfies the performance and prejudice requirements of Strickland by establishing that:

(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew
                                                 5
                                                                                  Circulated 08/28/2015 04:28 PM




 of, or should have known of, the existence of the witness; (4) the witness was willing to testify

 for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have

 denied the defendant a fair trial. Com. v. Sneed, 45 A.3d 1096, 1108-9 (Pa. 2012).

         In the instant case, Attorney Encarnacion was aware that Mr. Wollard existed and had

 discussed with Petitioner calling Mr. Wollard as a witness. In fact, both the defense and the

 Commonwealth knew of Mr. Wollard's existence and knew that Mr. Wollard was available and

 willing to testify. Attorney Encarnacion met with Mr. Wollard multiple times to discuss

 Petitioner's case. Despite Attorney Encarnacion's advice against ministering to Petitioner while

 in prison, Mr. Wollard met with Petitioner multiple times in prison. (N.T. PCRA Hearing,

 9/10/14, p. 48.) Attorney Encarnacion testified that he had advised Mr. Wollard against meeting

with Petitioner in prison because if Mr. Wollard was called as a witness, he would be subject to

cross-examination and it was important for Mr. Wollard to remain as neutral as possible; Mr.

Wollard ignored that advice. Id at 48-49.

        Attorney Encarnacion provided two very reasonable bases for his decision not to call Mr.

Wollard as a witness. Mr. Wollard would have provided testimony inconsistent with the

testimony Petitioner himself presented, and Mr. Wollard had a very vivid description of how the

victim was drowned. Id. at 38. Mr. Wollard's testimony about the amount of sand and gravel

found in the victim's mouth would have lent more evidence to the idea that Petitioner held the

victim's face underwater, pressing it against the riverbed. Mr. Wollard would have provided

evidence that was more prejudicial to the defense's case. At trial, the testimony provided that

Petitioner was the one who pulled the victim out of the water and that Petitioner was the one who

dialed 911; Mr. Wollard would have provided testimony that Petitioner was not as active of a

participant in attempting to render aid to the victim. Id. at 52-53. Attorney Encarnacion was

able to bring in the victim's violent propensities through four other witnesses at trial without
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                         I
                         '·




putting Mr. Wollard on the stand and subjecting the defense to Mr. Wollard's damaging,

prejudicial testimony. Id. at 46. The four other witnesses were able to testify to incidents

involving the victim's violent propensity that were almost identical to the incidents to which Mr.

Wollard would have testified. Id Attorney Encarnacion had several reasonable bases for

declining to call Mr. Wollard as a witness, namely his close relationship to Petitioner while

Petitioner was in prison, his inconsistent testimony, and most importantly, his vivid description

of how the victim was full of sand and gravel after being held underwater.   Petitioner was not

prejudiced by the lack of this witness and, in fact, would have suffered more prejudicial

testimony had Mr. Wollard testified.

       Because Defendant has failed to prove prejudice or that trial counsel lacked a reasonable

basis for his actions, trial counsel will not be deemed ineffective. Com. v, Loner, 836 A.2d 125,

133 (Pa. Super. 2003)(citing Com. v. Douglas, 645 A.2d 226, 231-2)(Pa. 1994)).

       Therefore, the Court enters the following:




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       IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                                  CRIMINAL

    COMMONWEALTH             OF PENNSYLVANIA

                    vs.                                              No. 2608-2011

    TYRICK DONTE WALKER                                              PCRA


                                                     ORDER
                                   ~
            AND NOW, this ll           day of January, 2015, having considered Defendant's petition filed

    pursuant to the Post Conviction Relief Act1 on April 17, 2014, the arguments of counsel, and the

    evidence presented at the hearing in this matter on September 10, 2014, Defendant's petition is

    hereby DENIED.

           Defendant is hereby advised of his right to appeal this decision within thirty (30) days

    from the date of entry of this Order by the Lancaster County Clerk of Courts Office. Defense

    counsel is directed to timely provide this Order and notice to Defendant.                           r-            .
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Copies to:         R. Russell Pugh, Esq., 1853 William Penn Way, Suite 15, P.O. Box 10368,
                   Lancaster, PA 17605
                   hmbu L: Bss :isl    ! ·, Assistant District Attorney
                          To&\   \:'.,((Cll('




1
    42 Pa.C.S.A. §§ 9541-9546.
