J-S74005-14


                                   2015 PA Super 17

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TERRY WALKER,

                            Appellant                   No. 2246 EDA 2013


                Appeal from the PCRA Order Entered July 8, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0608421-2005


BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*

OPINION BY BENDER, P.J.E.:                            FILED JANUARY 28, 2015

        Appellant, Terry Walker, appeals from the post-conviction court’s July

8, 2013 order denying his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.             After careful

review, we vacate the PCRA court’s order and remand for an evidentiary

hearing.

        The underlying facts of Appellant’s case are as follows:

               On the morning of January 20, 2005, Joseph Smith, the
        victim, told a friend that he was to meet Appellant later in the
        day because Appellant owed him $1,300. Later that afternoon,
        Nathaniel Robinson, who was driving by 70th Street and
        Woodland Avenue in Philadelphia[,] saw flashes of light, heard a
        loud bang from the minivan in front of him, and felt something
        hit his car. The mini-van stopped in the middle of the street. Mr.
        Robinson saw the driver, later identified as Appellant, get out of
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*
    Retired Senior Judge assigned to the Superior Court.
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      the van, look around, get back in, and make a U-turn. One of
      the windows of the van was blown out. Appellant stopped again,
      got out of the van, opened the sliding door, and “scuffled”
      around, causing the van to rock back and forth. Appellant drove
      the van to 69th and Woodland where he pulled in at a service
      station. Mr. Robinson then saw Appellant go to the passenger
      side, stuff something down the front of his pants, and walk away
      slowly until he reached the end of the service station, when he
      broke into a run, leaving a trail of blood behind him from a
      gunshot wound to the hand. Later, blood from the stains found
      at the scene was matched to Appellant’s DNA. Mr. Robinson
      found Mr. Smith in the van, bleeding and bound in “flex cuffs” on
      each of his wrists. He was covered in blood and struggling to get
      up.

            Mr. Robinson called 9-1-1. A fire department emergency
      crew arrived and rushed Mr. Smith in an ambulance to the
      Hospital of the University of Pennsylvania about thirty-five blocks
      away. On the way to the hospital, the paramedic monitored Mr.
      Smith’s level of consciousness by asking him informational
      questions. Mr. Smith gave the paramedic an incorrect age and
      the name “Phillip.” He also responded eight or nine times “Terry
      Walker did it,” or “Tell them that Terry Walker shot me.” Mr.
      Smith lost consciousness a few blocks from the hospital and
      stopped answering questions. He died at 7:00 P.M., from
      nineteen gunshot wounds.

Commonwealth v. Walker, No. 910 EDA 2007, unpublished memorandum

at 1-3 (Pa. Super. filed June 5, 2009).

      Appellant was arrested and proceeded to a jury trial in March of 2007.

At the close thereof, the jury convicted Appellant of first degree murder,

robbery, and possessing an instrument of crime (PIC). He was sentenced to

a term of life imprisonment for his murder conviction, plus consecutive terms

of incarceration of 10 to 20 years, and 2½ to 5 years, for his robbery and

PIC offenses, respectively. Appellant filed a timely direct appeal and after

this Court affirmed his judgment of sentence, our Supreme Court denied his



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subsequent petition for allowance of appeal.   Commonwealth v. Walker,

981 A.2d 325 (Pa. Super. 2009) (unpublished memorandum), appeal

denied, 983 A.2d 1249 (Pa. 2009).

      On February 8, 2010, Appellant filed a timely pro se PCRA petition and

counsel was appointed.     Various continuances occurred over the ensuing

years. On April 30, 2012, PCRA counsel filed a petition to withdraw and ‘no-

merit’ letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

On June 5, 2012, the PCRA court issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss Appellant’s petition. Appellant filed a pro se motion for an

extension of time to respond to the Rule 907 notice, which the court

granted. On August 17, 2012, Appellant filed a pro se response, framed as

an amended PCRA petition.      Therein, he raised sixteen issues, which the

court directed PCRA counsel to review.

      On December 10, 2012, PCRA counsel filed an amended PCRA petition

on Appellant’s behalf (which the court accepted) raising two of the 16 claims

asserted in Appellant’s pro se response to the court’s Rule 907 notice. On

April 23, 2013, the court issued a Rule 907 notice of its intent to dismiss

Appellant’s amended petition. Appellant did not file a response, and on July

8, 2013, the court issued an order dismissing his petition. Appellant filed a

timely notice of appeal, and he also timely complied with the court’s order to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Thereafter, the PCRA court filed a Rule 1925(a) opinion.

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      Herein, Appellant presents two questions for our review:

      1) Whether the PCRA court violated paragraph (1) of
      Pa.R.Crim.P. 907 by summarily dismissing [the] petition without
      [an] evidentiary hearing where there was a genuine issue of
      material fact as to whether trial counsel was ineffective for
      giving [Appellant] specific advice not to testify in his own behalf
      because the Commonwealth would impeach him with his prior
      criminal record, where [Appellant] did not have any crimen falsi
      convictions, which was so unreasonable as to violate his knowing
      and intelligent decision not to testify in his own behalf?

      2) Whether the PCRA court violated paragraph (1) of
      Pa.R.Crim.P. 907 by summarily dismissing [the] petition without
      [an] evidentiary hearing where there was a genuine issue of
      material fact as to whether trial counsel was ineffective for
      failing to timely object to the prosecutor’s prejudicial remarks
      during opening and closing arguments?

Appellant’s Brief at 5.

      We begin by noting that “[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 truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.”
      Generally, counsel’s performance is presumed to be
      constitutionally adequate, and counsel will only be deemed
      ineffective upon a sufficient showing by the petitioner. To obtain


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      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 argues that the PCRA court erred by denying him an

evidentiary hearing on his claim that trial counsel was ineffective for advising

him not to testify at trial.       Appellant contends that counsel erroneously

informed him that if he took the stand, “the Commonwealth would impeach

him with his prior criminal record[,]” yet Appellant had no prior crimen falsi

convictions that could be revealed by the Commonwealth. Appellant’s Brief

at 12.      Instead, his prior convictions were for aggravated assault and

possession with intent to deliver (PWID). Appellant maintains that counsel’s

improper     advice   interfered   with   his   right   to   testify,   and   “was   so

unreasonable as to vitiate his knowing and intelligent decision not to testify

on his own behalf.” Id. at 14. Appellant further contends that counsel could

have had no reasonable basis for misinforming Appellant in this manner, and

that he was prejudiced “because but for the arguably ineffective act of giving

[Appellant] mistaken guidance that caused him not to testify, there is a

reasonable probability that the result would have been different.” Id. at 16.



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      In Commonwealth v. Nieves, 746 A.2d 1102 (Pa. 2000), our

Supreme Court examined an extremely similar trial counsel ineffectiveness

claim.   There, Nieves’ trial counsel convinced Nieves to waive his right to

testify by erroneously advising him that if he took the stand, he would be

impeached with his prior criminal record, which included “two firearms

offenses and at least two drug trafficking offenses.” Id. at 1104 (footnote

omitted).       Nieves claimed that counsel’s advice constituted ineffective

assistance, and our Supreme Court agreed, concluding “that such advice was

clearly unreasonable as it is well-established that evidence of prior

convictions can only be introduced for the purpose of impeaching the

credibility of a witness if the conviction was for an offense involving

dishonesty or false statement.”      Id. at 1104-1105. As Nieves’ convictions

for drug and firearms offenses “did not involve dishonesty or false

statements[,]” they “would not have been admissible to impeach [Nieves’]

credibility.”   Id.     Thus, the Nieves Court held that because “the common

pleas court credited [Nieves’] testimony that his decision not to testify was

based solely on this erroneous advice, such decision cannot be deemed

knowing or intelligent.” Id. at 1105.

      The Nieves Court went on to assess the Commonwealth’s argument

that trial counsel advised Nieves not to testify “because if he did, the

Commonwealth could cross-examine him regarding the motive for the

killing, which was allegedly a drug debt, and thereby introduce his prior

convictions.”     Id.    However, the Supreme Court rejected this argument,

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citing counsel’s testimony at the hearing in which counsel “acknowledged

that he did not have an alternative reasonable strategy for advising [Nieves]

not to testify.” Id. at 1106. Instead, counsel’s advice to Nieves was solely

based on his belief that Nieves would be impeached with his prior

convictions. Because that advice was clearly erroneous, the Supreme Court

held “that trial counsel’s advice was so unreasonable as to vitiate [Nieves’]

knowing and intelligent decision not to testify.” Id.

       Here, the PCRA court did not discuss the arguable merit or reasonable

basis prongs of the ineffective assistance of counsel test. Instead, the PCRA

court concluded that Appellant failed to prove he was prejudiced by counsel’s

conduct, explaining that “what [Appellant] indicated … he would have

testified to completely ignores the overwhelming evidence against him and

would not have changed the outcome of the case.”1           PCRA Court Opinion

(PCO), 5/1/14, at 5 (emphasis added).            In other words, the PCRA court

rejected Appellant’s ineffectiveness claim because he failed to prove the

outcome of the trial would have been different had he taken the stand.

       After careful review, we are compelled to conclude that the PCRA court

applied an incorrect prejudice standard in assessing Appellant’s claim of trial


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1
   Appellant’s proposed testimony was set forth in a document entitled
“Exhibits Addendum 1-6 to Amended PCRA Petition,” filed by Appellant pro
se on September 27, 2012. Appellant also reiterates his proposed testimony
in his brief to this Court. See Appellant’s Brief at 16.




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counsel’s ineffectiveness.        In Nieves, after holding that “trial counsel’s

advice was so unreasonable as to vitiate [Nieves’] knowing and intelligent

decision not to testify,” Nieves, 746 A.2d at 1106, the Court indicated that

the fact that Nieves’ testimony would have likely “worked to his detriment”

did “not compel a different conclusion.”2         Id. at 1106 n.7.    The Court

emphasized that “claims of counsel’s ineffectiveness may not be evaluated in

hindsight[,]” and also noted that it was “sheer speculation to conclude that

what transpired during the penalty phase would have occurred at trial.” Id.

(citation omitted). We acknowledge that Nieves did not expressly address

the appropriate prejudice standard to apply in this context, and it appears

that no Supreme Court decision since Nieves has explicitly ruled on this

issue.    However, in Commonwealth v. Miller, 987 A.2d 638 (Pa. 2009),

the Court touched on the subject. There, the Court rejected the appellant’s

claim “that his waiver of his right to testify was invalid,” reasoning that the

appellant “failed to prove that but for counsel’s ineffectiveness, he would

have testified.” Id. at 660.

         The prejudice standard applied by the Miller Court seems to have

been derived from the Court’s earlier decision in Commonwealth v.

Mallory, 941 A.2d 686 (Pa. 2008), a case which addressed a trial counsel



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2
  Nieves was a death penalty case and, despite Nieves’ testimony at the
penalty hearing, the jury decided to impose a sentence of death.



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ineffectiveness claim in the context of a defendant’s waiver of his right to a

jury trial. In analyzing that issue, the Court opined that:

       At least in circumstances where waivers of fundamental rights
       are concerned, it appears that the “result of the proceeding”
       referred to in Strickland [v. Washington, 466 U.S. 668
       (1984),] has been deemed to encompass the result of the trial
       stage where the alleged ineffectiveness took place, and not
       necessarily the ultimate verdict.

Id. at 703.      The Mallory Court then held that the appropriate prejudice

standard in the context of a waiver of the right to a jury trial was whether

“the result of the waiver proceeding would have been different absent

counsel’s ineffectiveness[,]” not whether the outcome of the jury trial itself

would have been more favorable for the defendant. Id. at 702-703. Since

Mallory, our Supreme Court has applied the prejudice standard announced

therein to other cases involving ineffectiveness in the context of the waiver

of a fundamental right.       See Commonwealth v. Puksar, 951 A.2d 267,

281-282 (Pa. 2008) (applying the prejudice standard in Mallory to claim

that   counsel    ineffectively    caused   the   appellant   to   unknowingly   and

involuntarily waive his right to present mitigation evidence at his death

penalty hearing; stating, “[i]n short, he has not shown that the outcome of

his waiver of mitigation would have been different but for counsel’s

inaction.”); Commonwealth v. Spotz, 18 A.3d 244, 263-264 (Pa. 2011)

(applying the prejudice standard announced in Mallory to a claim that

counsel’s   ineffectiveness       caused    the   appellant   to   unknowingly   and

involuntarily waive his right to counsel; stating, “[t]o establish prejudice, the


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petitioner must demonstrate a reasonable probability that but for counsel’s

ineffectiveness, he would not have waived the right at issue.”).

      Based on Mallory, Nieves, and Miller, we conclude that the

appropriate standard for assessing whether a defendant was prejudiced by

trial counsel’s ineffectiveness regarding the waiver of his right to testify is

whether the result of the waiver proceeding would have been different

absent counsel’s ineffectiveness, not whether the outcome of the trial itself

would have been more favorable had the defendant taken the stand.

Accordingly, the PCRA court’s determination that Appellant was not

prejudiced by counsel’s conduct is legally incorrect, as the court applied the

wrong standard for assessing prejudice in this context.            Additionally,

because the PCRA court did not explicitly rule on the other two prongs of the

ineffectiveness test, and did not conduct an evidentiary hearing, we are

unable to determine whether Appellant’s claim has arguable merit (i.e.,

whether counsel indeed advised Appellant in the manner claimed, and

whether Appellant’s decision to testify was solely based on that advice),

and/or whether counsel had any reasonable basis for advising Appellant not

to testify. Therefore, we vacate the PCRA court’s order denying Appellant’s

petition and remand for a hearing on this ineffectiveness claim. If, at the

conclusion of that proceeding, the PCRA court determines that Appellant has

proven the first two prongs of the ineffectiveness test, it shall then assess

whether Appellant was prejudiced by counsel’s conduct, applying the

standard set forth herein.

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      While we conclude that a hearing is warranted on Appellant’s first trial

counsel ineffectiveness claim, we agree with the PCRA court that his other

claims of counsel’s ineffectiveness do not present issues of genuine fact

necessitating further review.     First, Appellant maintains that counsel acted

ineffectively by not objecting to comments by the prosecutor during his

opening and closing statements. Specifically, during his opening statement,

the prosecutor said, “We obviously know that [Appellant] did this.”       N.T.

Trial, 2/26/07, at 37.   Appellant argues that this remark was an improper

expression of the prosecutor’s personal belief regarding Appellant’s guilt.

Appellant also takes issue with the prosecutor’s stating, during closing

arguments, that “[t]hey intended to kill this man over drug money.” N.T.

Trial, 3/2/07, at 41.    Appellant maintains that this statement “not only

emphasized a motive which had no factual basis in the record, but also

indicated that petitioner was involved in other criminal activity.” Appellant’s

Brief at 21 (citation omitted).

      Even assuming that both prosecutorial remarks were improper (and,

therefore, that counsel should have lodged objections to them), the record

supports the PCRA court’s conclusion that “the prosecutor’s remarks did not

prejudice [Appellant] to the extent that the jury could not weigh the

evidence and render a true verdict….” PCO at 5. As our Supreme Court has

stated:

      It is well-established that a prosecutor is free to present his
      argument with logical force and vigor so long as there is a
      reasonable basis in the record for the prosecutor's remarks.

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      Further, reversible error arises from a prosecutor's comments
      only where their unavoidable effect is to prejudice the jurors,
      forming in their minds a fixed bias and hostility toward the
      defendant such that they could not weigh the evidence
      objectively and render a fair verdict.

      To succeed on a claim of ineffective assistance of counsel based
      on trial counsel's failure to object to prosecutorial misconduct,
      the defendant must demonstrate that the prosecutor's actions
      violated a constitutionally or statutorily protected right, such as
      the Fifth Amendment privilege against compulsory self-
      incrimination or the Sixth Amendment right to a fair trial, or a
      constitutional interest such as due process. “To constitute a due
      process violation, the prosecutorial misconduct must be of
      sufficient significance to result in the denial of the defendant's
      right to a fair trial.”

Commonwealth v. Busanet, 54 A.3d 35, 64 (Pa. 2012) (citations

omitted).

      Here, Appellant claims the prosecutor’s opening remark (“[w]e

obviously know that [Appellant] did this”) denied him the right to a fair trial

because it “implied that [the prosecutor] had a special knowledge or innate

ability to determine guilt based upon his position as a prosecutor, such that

[Appellant’s] right to be tried solely on the evidence was jeopardized….

Appellant’s Brief at 25-26.    We disagree.     Prior to making the at-issue

remark, the prosecutor described the evidence that would be presented to

show that Appellant had murdered the victim. N.T. Trial, 2/26/07, at 36-37.

He then stated: “We obviously know that [Appellant] did this. We will find

out why.” Id. at 37. The prosecutor went on to summarize the evidence

that would be offered to prove Appellant’s motive for committing the




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murder.     Id. at 37.   In concluding his opening statement, the prosecutor

declared:

      [The prosecutor]: A little bit of money, ladies and gentlemen.
      That is what the evidence is going to show that this is all about.
      That is what the evidence is going to show that that young man
      lost his life over.

      [T]he evidence is going to show that senseless killing for that
      senseless reason was perpetrated by that man.           And after
      looking at that evidence, I want you to bring him to justice for it.

Id. at 38-39.

      The prosecutor’s opening statement, read as a whole, clearly conveyed

to the jury that the evidence would prove Appellant committed the murder.

Other than the brief comment Appellant now challenges, the prosecutor did

not express a personal belief regarding Appellant’s guilt, or imply that the

jury should convict Appellant because the prosecutor “had a special

knowledge or innate ability to determine guilt based upon his position as a

prosecutor.”    Appellant’s Brief at 25.    Instead, the prosecutor emphasized

that the evidence presented at trial would prove Appellant’s guilt. Therefore,

we ascertain no error in the PCRA court’s determination that Appellant was

not prejudiced by counsel’s failure to object to the prosecutor’s opening

remark. Accordingly, this claim need not be further examined on remand.

      We also conclude that the prosecutor’s closing argument, in which he

commented that the victim was murdered “over drug money[,]” did not

deny Appellant his right to a fair trial.     This remark was made during the

prosecutor’s discussion of Appellant’s intent to kill the victim:


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      [The Prosecutor]: When you shoot someone nineteen times – in
      fact, the Judge will instruct you that just from using a deadly
      weapon once on a vital area of the body you can infer the
      specific intent to kill. But when you shoot him over and over and
      over, when you put the muzzle of a gun into his – the back of his
      ribs and pull the trigger, there is no doubt of your intent, ladies
      and gentlemen. They intended to kill this man over drug
      money.

N.T. Trial, 3/2/07, at 41 (emphasis added).          Appellant argues that the

above-emphasized remark “ascribed to [Appellant] a motive that could not

reasonably be drawn from the evidence.” Appellant’s Brief at 26.

      We disagree.       Throughout trial, the Commonwealth argued – and

presented ample evidence to support – that Appellant murdered the victim

to avoid paying the victim $1,300. The prosecutor’s sole reference to that

money as being drug-related did not create a new motive that was

unsupported by the evidence, as Appellant contends.          Moreover, while the

prosecutor’s    comment     may    have   implied   other   criminal   conduct   by

Appellant, he has not demonstrated that that single statement was so

prejudicial as to result in an unfair trial. Consequently, the PCRA court did

not err in denying this ineffectiveness claim without a hearing.

      Accordingly, we remand for a PCRA hearing solely to address

Appellant’s claim that trial counsel acted ineffectively in advising him to

waive his right to testify at trial.

      Order vacated. Case remanded for further proceedings.            Jurisdiction

relinquished.

      Judge Donohue joins this opinion.



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     Judge Strassburger files a dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2015




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