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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
MUMIN SLAUGHTER,                           :         No. 1839 EDA 2018
                                           :
                          Appellant        :


               Appeal from the PCRA Order Entered May 24, 2018,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-1202271-2005


BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED OCTOBER 15, 2019

        Mumin Slaughter appeals from the May 24, 2018 order entered in the

Court of Common Pleas of Philadelphia County dismissing his PCRA petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        The PCRA court set forth the procedural history as follows:

              [Appellant], together with William Johnson, was
              charged by Philadelphia authorities with murder,
              generally, criminal conspiracy, and possessing
              instruments of crime, generally. Both men were tried
              jointly before [the trial c]ourt and a jury in 2007.
              Although the jury could not reach a verdict with
              respect to Mr. Johnson, it found [appellant] guilty of
              third-degree murder and criminal conspiracy.[1]
              Although [appellant] was originally sentence[d] to an
              aggregate term of incarceration of twenty-five to fifty
              years’ incarceration, that sentence was vacated and

1   18 Pa.C.S.A. § 2502(c) and § 903(a)(1), respectively.
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          on October 29, 2010, [appellant] received an
          aggregate sentence of fifteen to thirty years’
          incarceration after he agreed to cooperate with
          authorities in the Johnson retrial.

          Following the imposition of sentence [appellant] filed
          a notice of appeal and on November 6, 2012, the
          Superior Court affirmed the judgment of sentence.
          Commonwealth v. Slaughter, 63 A.3d 830 (Pa.
          Super. 2012) (Table). [Appellant] thereafter filed a
          petition for allowance of appeal in the Pennsylvania
          Supreme Court, which on May 29, 2013, denied the
          petition. Commonwealth v. Slaughter, 67 A.3d
          796 (Pa. 2013) (Table).

          On October 9, 2013, [appellant] filed a pro se petition
          pursuant to the Post-Conviction Relief Act (hereinafter
          PCRA), 42 Pa.C.S.[A.] § 9541 et seq. Counsel was
          appointed to represent him and on February 2, 2017,
          counsel filed an amended petition alleging that trial
          counsel had been ineffective for erroneously advising
          [appellant] not to testify in his own defense because
          it would result in his being impeached with his arrest
          record.    Counsel thereafter filed a supplemental
          amended petition on November 1, 2017, wherein
          [appellant] contended that trial counsel failed to call
          an alibi witness in [appellant’s] trial.

          On November 3, 2017, [the PCRA c]ourt held an
          evidentiary hearing on [appellant’s] claim that trial
          counsel gave him wrong advice about testifying at
          which both [appellant] and trial counsel testified. The
          [PCRA c]ourt held the matter under consideration at
          the conclusion of the hearing. A second evidentiary
          hearing was convened on May 24, 2018, on
          [appellant’s] claim that trial counsel was ineffective
          for failing to present an alibi witness. [The PCRA
          c]ourt cancelled the hearing because [appellant] had
          given police [sic] a statement to police prior to his
          second sentencing hearing wherein he stated that he
          had been present at the scene of the crime when it
          occurred, the veracity of which he confirmed under
          oath during the re-sentencing hearing held on
          September 29, 2010.


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               On May 24, 2018, [the PCRA c]ourt denied [appellant]
               PCRA relief. On June 23, 2018, [appellant] filed a
               timely notice of appeal.

PCRA court opinion, 9/5/18 at 1-3 (footnote omitted; citation to notes of

testimony omitted). The PCRA court did not order appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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

      Appellant raises the following issue for our review: “Whether the PCRA

Court erred in denying relief after [the] evidentiary hearing?” (Appellant’s

brief at 4.)

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). We review the appeal

“in the light most favorable to the prevailing party at the PCRA level[,]” and

“[o]ur review is limited to the findings of the PCRA court and the evidence of

record.”   Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014)

(en banc). “The PCRA court’s findings will not be disturbed unless there is

no support for the findings in the certified record.”     Commonwealth v.

Lawson, 90 A.3d 1, 4 (Pa.Super. 2014) (citations omitted).        “This [c]ourt

grants great deference to the findings of the PCRA court, and we will not

disturb those findings merely because the record could support a contrary

holding.” Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa.Super. 2002)


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(citation omitted). In contrast, we review the PCRA court’s legal conclusions

de novo. Henkel, 90 A.3d at 20.

      When presented with a claim of alleged ineffective assistance of trial

counsel, this court has held:

            [t]o be eligible for relief based on a claim of ineffective
            assistance of counsel, a PCRA petitioner must
            demonstrate, by a preponderance of the evidence,
            that (1) the underlying claim is of arguable merit;
            (2) no reasonable basis existed for counsel’s action or
            omission; and (3) there is a reasonable probability
            that the result of the proceeding would have been
            different absent such error.        Commonwealth v.
            Steele, 961 A.2d 786, 796 (Pa. 2008). With regard
            to the second, i.e., the “reasonable basis” prong, this
            Court will conclude that counsel’s chosen strategy
            lacked a reasonable basis only if the appellant proves
            that “an alternative not chosen offered a potential for
            success substantially greater than the course actually
            pursued.” Commonwealth v. Williams, 899 A.2d
            1060, 1064 (Pa. 2006) (citation omitted).                To
            establish the third prong, i.e., prejudice, the appellant
            must show that there is a reasonable probability that
            the outcome of the proceedings would have been
            different, but for counsel’s action or inaction.
            Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa.
            2008).

Commonwealth v. Matias, 63 A.3d 807, 810 (Pa.Super. 2013), appeal

denied, 74 A.3d 1030 (Pa. 2013). “The failure to satisfy any one of the prongs

requires rejection of the petitioner’s claim.” Commonwealth v. Williams,

141 A.3d 440, 454 (Pa. 2016) (citation omitted).

      Our supreme court has held:

            [t]he decision of whether or not to testify on one’s
            own behalf is ultimately to be made by the defendant
            after full consultation with counsel. In order to sustain


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            a claim that counsel was ineffective for failing to
            advise the appellant of his rights in this regard, the
            appellant must demonstrate either that counsel
            interfered with his right to testify, or that counsel gave
            specific advice so unreasonable as to vitiate a knowing
            and intelligent decision to testify on his own behalf.

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (citations

omitted).

      Here, appellant argues trial counsel was ineffective “for advising

appellant not to testify in his own behalf because the Commonwealth could

use his prior arrest record against him.” (Appellant’s brief at 13.) Appellant

claims that in discussing whether he should testify during trial, trial counsel

allegedly “told him that if he did testify the prosecutor would attack his

record.” (Id. at 14, citing notes of testimony, 11/3/17 at 11-12.) Appellant

argues:

            The advice to not testify and forgo the opportunity to
            refute the purported eye witness testimony as to his
            having previously sold them drugs when they [sic] cat
            was already out the [sic] bag, was tantamount to
            counsel saying the prosecutor will bring out his prior
            drug conviction should he testify, which was so
            unreasonable as to vitiate his knowing and intelligent
            decision not to testify in his own behalf.

Appellant’s brief at 15.

      At the PCRA hearing, trial counsel, a veteran defense attorney for more

than 30 years at the time, stated that he was confident he spoke to appellant

about whether appellant should testify at trial. (Notes of testimony, 11/3/17

at 48, 54.) Trial counsel also stated he would not have told appellant that, if



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he testified, his prior drug conviction in federal district court would have been

used to impeach him. (Id. at 45, 49, 56, 60.) Trial counsel explained that

the drug conviction was not a crimen falsi conviction that could be used for

impeachment purposes and would not be admissible.            (Id.)   Trial counsel

further explained that it was logical that if appellant testified, his relationship

with the two eyewitnesses, both of whom claimed they allegedly purchased

drugs from appellant regularly, would have been explored by the prosecution.

(Id. at 47-48.) Trial counsel stated that appellant “was better off not facing

cross-examination by a skilled prosecutor.” (Id. at 50.) When asked what

advice trial counsel gave appellant about whether to testify, appellant stated,

“[h]e told me that it wouldn’t be a good look because I have an arrest record

and that [the prosecutor] can bring my arrest record up.” (Id. at 13.)

      Following the PCRA hearing, the PCRA court accepted trial counsel’s

recollection of events as entirely credible, finding that appellant’s testimony

wholly lacked in credibility.    The PCRA court concluded, “[i]t was simply

beyond belief that trial counsel, an experienced and excellent trial attorney,

would have advised [appellant] that he should not testify because [he] could

be impeached with his criminal record that did not contain any crimen falsi

crimes.” (PCRA opinion, 9/5/18 at 8-9.)

      The record demonstrates that absent appellant’s self-serving testimony,

which the PCRA court found “wholly lacking in credibility,” appellant presented

no other evidence that counsel interfered with his right to testify, or that



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counsel gave specific advice so unreasonable as to vitiate a knowing and

intelligent decision to testify on his own behalf. Therefore, the PCRA court’s

determination that appellant failed to demonstrate by a preponderance of the

evidence that his underlying claim had arguable merit is supported by the

record and free from legal error.

      Consequently, appellant’s claim that the PCRA court erred in dismissing

his PCRA petition fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 10/15/19




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