J-S16018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :        IN THE SUPERIOR COURT OF
                                                 :             PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    TROY WALKER                                  :
                                                 :
                       Appellant                 :        No. 3134 EDA 2019

           Appeal from the PCRA Order Entered September 30, 2019
    In the Court of Common Pleas of Montgomery County Criminal Division
                      at No(s): CP-46-CR-0000394-2014


BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                                     FILED JULY 01, 2020

       Troy Walker appeals from the order denying as meritless his Post

Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. § 9541-9546. Walker

argues his counsel was ineffective for advising him not to testify at trial and

for not filing a petition seeking decertification from the criminal division and

remand to the juvenile division. We affirm.

       A jury found Walker guilty in March 2015 of attempted first-degree

murder,    aggravated      assault,    robbery       of    a   motor   vehicle,   recklessly

endangering another person, unsworn falsification to authorities, and person

not to possess a firearm.1 The convictions stemmed from Walker’s shooting of

John Marszuk in the face at close range, then driving away in the victim’s car.

Walker initially told police officers that he was at his father’s house at the time
____________________________________________


1 18 Pa.C.S.A. §§ 901, 2502(a)(1), 3702(a), 2705, 4904(a)(1), and
6105(a)(1), respectively.
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of the shooting. In a subsequent interview, he confessed to shooting the

victim, but claimed it was self-defense and the victim had made sexual

advances.

      Walker was 17 at the time of the crime, and turned 18 two weeks later.

Authorities directly filed the charges against him in criminal court. Trial

counsel did not have him evaluated to see whether he could be rehabilitated

and did not file a decertification petition.

      Walker did not testify at trial. Before the defense rested, counsel

conducted a colloquy to determine whether Walker knowingly waived his right

to testify. Walker agreed he understood that: he had a right to testify and that

it was his choice whether to do so; a decision not to testify could not be used

against him; and if he chose to testify the jury would be instructed that he

should be treated the same as any other witness. He also agreed that

“[k]nowing all these things, after consultation with [counsel] and hearing the

questions,” he was electing not to testify. N.T., 3/19/15, at 43. Walker did not

have any questions for the court or for counsel about his right to testify or his

waiver of that right. Id.

      The trial court sentenced Walker to 15½ to 31 years’ imprisonment. We

affirmed Walker’s conviction, and, on November 28, 2017, the Pennsylvania

Supreme Court denied allowance of appeal.

      Walker filed a timely PCRA petition. The PCRA court appointed counsel,

who filed an amended petition claiming that trial counsel was ineffective for




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advising Walker not to testify at trial and for failing to file a petition to decertify

the case to the juvenile division.

      The PCRA court conducted an evidentiary hearing. Walker testified that

he and counsel did not have a discussion about trial strategy:

            Mostly we had no discussions. We had no consultation
            prepared of the trial between us, and I was trying to figure
            out what we want to do after the suppression hearing was
            denied or granted, like, they were talking about my
            statement. But we couldn’t ask -- we did not have nothing
            else to talk about.

            Like, he did not bring nothing up after that. Like, before jury
            selection, we didn’t even talk about how we are going to
            prepare the case or how we are going to continue with it,
            and nothing. So I ain’t no – I’m just there. I am just standing
            there letting him talk the whole time. I didn’t understand
            nothing, what was going on.

N.T., 9/4/19, at 5-6.

      However, Walker also testified that counsel advised him not to testify

because he lied to the police officers and he had a prior record:

            Q: And before the trial, did the two of you talk at all about
            his opinions whether you should testify or not?

            A: No, not really. He most likely told – no, he told me that
            if I – it was not good on my behalf to testify because I lied
            to the cops and I got a prior record. So, therefore, [the
            Commonwealth would] probably impeach me or just
            basically eat me alive on the stand.

Id. at 6.

      Walker claimed that if he had testified at trial, he “most likely” would

have testified that the victim followed him when he exited the victim’s car and

began to walk away. Id. at 7, 14.



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      When asked whether he and counsel had any discussions regarding

whether to seek transfer to the juvenile division, Walker testified that he asked

counsel to file a motion to transfer:

         I asked him multiple times to see if – I told him how old I
         was. I was seventeen and can I get it dropped as a juvenile
         and continue in juvenile basically, whatever. I wrote letters.
         And I asked him multiple times. And nobody filed no motion.

Id. at 10.

      Although trial counsel was present in the courtroom, Walker did not call

him as a witness.

      The Commonwealth presented the certified records of Walker’s prior

adjudications, which included adjudications for robbery, theft from a motor

vehicle, and theft.

      The PCRA court dismissed the petition, finding Walker failed to prove

that Walker’s counsel lacked a reasonable basis for his actions, failed to prove

a decertification motion would have had merit, and failed to prove prejudice.

Walker filed a timely notice of appeal.

      Walker raises the following issues:

         I. Did the [PCRA] court err in denying [Walker’s] PCRA claim
         that [Walker] was denied his constitutionally guaranteed
         right to effective representation, and trial counsel was
         ineffective when he erroneously advised [Walker] not to
         testify on his own behalf?

         II. Did the [PCRA] court err in denying [Walker’s] PCRA
         claim that [Walker] was denied his constitutionally
         guaranteed right to effective representation, and trial
         counsel was ineffective when he failed to seek
         decertification of the case, and remand to the juvenile court,
         prior to trial?

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Walker’s Br. at v (suggested answers omitted).

      “Our review of a PCRA court’s decision is limited to examining whether

the PCRA court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Mason, 130

A.3d 601, 617 (Pa. 2015) (quoting Commonwealth v. Hanible, 30 A.3d 426,

438 (Pa. 2011)). We are bound by the PCRA court’s credibility determinations,

when the record supports them, and we review its legal conclusions de novo.

Id.

      For purposes of an ineffectiveness claim, “counsel is presumed to have

rendered effective assistance.” Commonwealth v. Lesko, 15 A.3d 345, 374

(Pa. 2011). A petitioner may overcome this presumption by pleading and

proving by a preponderance of the evidence that: “(1) The underlying legal

claim has arguable merit; (2) counsel had no reasonable basis for [the] action

or inaction; and (3) [the a]ppellant suffered prejudice because of counsel’s

action or inaction.” Commonwealth v. Maddrey, 205 A.3d 323, 327

(Pa.Super. 2019) (quoting Commonwealth v. Presley, 193 A.3d 436, 442

(Pa.Super. 2018)). Prejudice in this context means “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different.” Commonwealth v. Spotz, 84 A.3d

294, 312 (Pa. 2014) (quoting Commonwealth v. King, 57 A.3d 607, 613

(Pa. 2012)). A reasonable probability is one “sufficient to undermine

confidence in the outcome of the proceeding.” Id. (quoting Commonwealth

v. Ali, 10 A.3d 282, 291 (Pa. 2010)).

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      Walker claims that the PCRA court erred in concluding that counsel was

not ineffective when he advised Walker to not testify. He claims that counsel

told him “not to testify without advising [Walker] that counsel intended to

present a defense that portions of [Walker’s] confession were fabricated by

the police, and that the statement itself was coerced by the police.” Walker’s

Br. at 10. He contends that this was “illogical and not supported by the

evidence.” Id. He claims that if he had known this was the intended defense,

he would have testified at trial. He claims that he testified at the PCRA hearing

that counsel did not discuss the case prior to trial, and that he “let his lawyer

do the talking because he did not understand what was occurring.” Id. at 11.

Walker claims there was no strategic explanation for counsel’s actions, and

faults the Commonwealth for failing to call trial counsel as a witness at the

PCRA hearing. Walker further claims that he was prejudiced because the result

of the waiver proceeding would have been different if counsel “had a full and

honest discussion with the client prior to or . . . during trial.” Id. at 14.

      The PCRA court concluded Walker failed to provide sufficient evidence

that counsel lacked a strategic basis in advising him not to testify. Trial Court

Opinion, filed Dec. 19, 2019, at 5 (“1925(a) Op.”). It reasoned that Walker

testified that counsel advised him to waive his right to testify because the

evidence of past crimes could be used against him. It noted that Walker did

not elicit testimony from counsel, even though trial counsel was present at

the hearing. The court concluded that Walker failed to meet his burden of




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proving “trial counsel lacked a reasonable or strategic basis for his advice or

otherwise interfered with his right to testify.” Id. at 6.

      The PCRA court further concluded that Walker failed to establish he

suffered prejudice. In Commonwealth v. Walker, this Court concluded that

the prejudice at issue in a claim that counsel was ineffective when providing

advice regarding the defendant’s testimony is whether the outcome of the

waiver proceeding would have been different, that is, whether the defendant

would have testified at trial. 110 A.3d 1000, 1005 (Pa.Super. 2015). In

Commonwealth v. Towles, the Pennsylvania Supreme Court declined to

determine whether this was the appropriate standard for such a claim. 208

A.3d 988, 1003 (Pa. 2019). It declined, in part, because the issue of the

appropriate standard was not appropriately briefed. Id. The Court determined

that in the case before it, the Walker standard could not apply “given the

pervasive weakness of [the a]ppellant’s argument throughout.” Id.

      Here, the PCRA court found Walker failed to establish prejudiced under

the traditional standard or the Walker standard. It noted that at the PCRA

hearing, Walker testified “to a third version of events he claims he would ‘most

likely’ have told the jury but for trial counsel’s advice to not testify.” 1925(a)

Op. at 7. The third version was that Walker shot the victim after leaving the

car and being followed. The PCRA court concluded that Walker could not prove

the outcome of trial would have been different if he had testified to the third

version. Id. He would have “faced significant credibility issues with the jury,

as acceptance of this story would require jurors to acknowledge his history of

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dishonesty and to reject two prior police statements by [Walker] as untrue.”

Id. The court further noted that the third version of events conflicted with the

evidence presented at trial, including Walker’s prior statements and witness

testimony. Id.

      Further, the court found that Walker did not establish the result of the

waiver proceeding would have been different. It noted that the record belies

Walker’s claims that the decision not to testify was not his, and that he would

have chosen to testify. Id. at 9. It noted that during the colloquy, Walker

agreed that he understood that it was his choice whether to waive his right to

testify. Id. at 9. The court further noted that Walker’s testimony at the PCRA

hearing was contradictory, in that he asserted both that he had no

conversations with counsel regarding whether to testify and that counsel

explained that testifying would be inadvisable. Id. The court concluded that

“[w]ithout more specific evidence in the record or testimony from trial counsel

during the PCRA hearing as to what he and [Walker] discussed regarding trial

strategy and the decision to not testify, this Court can neither determine the

impact of trial counsel’s advice on [Walker’s] decision nor find that the waiver

proceeding would have had a different outcome absent these conversations.”

Id. at 10.

      The PCRA court’s factual findings are supported by the record and it did

not err as a matter of law. Walker failed to establish that counsel lacked a

reasonable basis for advising him not to testify. Contrary to Walker’s

contention, the Commonwealth was not required to prove that counsel had a

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reasonable basis. Rather, Walker bore the burden at the PCRA proceeding of

proving, through testimony and other evidence, that counsel lacked a

reasonable basis. See Commonwealth v. Isaac, 205 A.3d 358, 362

(Pa.Super. 2019). He failed to do this.

      Moreover, Walker failed to establish he was prejudiced where he

provided contradictory testimony about his discussions, or lack thereof, with

counsel, such that the court could not determine whether the outcome of the

waiver proceeding would have been different. Further, even if Walker had

testified, there is not a reasonable probability that his testimony would have

altered the outcome of the trial, for the reasons the PCRA court cited.

      In his second issue, Walker claims the PCRA court erred when it denied

his claim that counsel was ineffective for failing to seek decertification of the

case and a remand to the juvenile division. He claims that “whether someone

can be rehabilitated through counseling and psychological treatment are not

issues within the realm of expertise of attorneys.” Walker’s Br. at 14-15. He

claims trial counsel had a duty to seek professional opinions regarding

Walker’s IQ, mental health, and other psychological and emotional factors

before deciding he could not be rehabilitated. Walker claims counsel could not

have had a reasonable basis for failing to have Walker evaluated, and that the

failure to see an evaluation prejudiced Walker.

      When a juvenile is charged with attempted murder, the criminal division

of the Court of Common Pleas is vested with jurisdiction of the case. 42

Pa.C.S.A. § 6322(a); 6302. To determine whether to transfer a case charging

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a person under the age of 18 with such a crime, “the child shall be required

to establish by a preponderance of the evidence that the transfer will serve

the public interest.” 42 Pa.C.S.A § 6322(a). To determine whether the transfer

will serve the public interest, courts consider the following factors:

         (A) the impact of the offense on the victim or victims;

         (B) the impact of the offense on the community;

         (C) the threat to the safety of the public or any individual
         posed by the child;

         (D) the nature and circumstances of the offense allegedly
         committed by the child;

         (E) the degree of the child’s culpability;

         (F) the adequacy and duration of dispositional alternatives
         available under this chapter and in the adult criminal justice
         system; and

         (G) whether the child is amenable to treatment, supervision
         or rehabilitation as a juvenile by considering the following
         factors:

            (I) age;

            (II) mental capacity;

            (III) maturity;

            (IV) the degree of criminal sophistication exhibited by the
            child;

            (V) previous records, if any;

            (VI) the nature and extent of any prior delinquent
            history, including the success or failure of any previous
            attempts by the juvenile court to rehabilitate the child;

            (VII) whether the child can be rehabilitated prior to the
            expiration of the juvenile court jurisdiction;

            (VIII) probation or institutional reports, if any;


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            (IX) any other relevant factors; and

            (iv) that there are reasonable grounds to believe that the
            child is not committable to an institution for the mentally
            retarded or mentally ill.

Id.; 42 Pa.C.S.A. § 6355(a)(4)(iii). Whether to grant a motion to decertify a

case to juvenile court is within the discretion of the trial court. See

Commonwealth v. Brown, 26 A.3d 485, 493 (Pa.Super. 2011).

      The PCRA court concluded that Walker’s claim that the case would have

been decertified lacked arguable merit and he failed to establish he was

prejudiced by counsel’s failure to file a motion. The court noted that Walker

committed the crimes, which included attempted first-degree murder, when

he was less than two weeks from his 18th birthday. The court reasoned that

Walker provided limited testimony on this issue at the PCRA hearing, saying

only that he raised the issue of decertification with his counsel. 1925(a) Op.

at 12. The court concluded that he failed to prove a decertification motion

would have had merit, or that he was prejudiced by the lack of a motion.

      The record supports the PCRA court’s factual findings and it did not err

in finding that Walker’s claim that counsel was ineffective for failing to file a

motion to decertify lacked merit and that Walker failed to establish prejudice.

Walker was two weeks from his 18th birthday and charged with attempted

murder, among other crimes. Walker presented no evidence regarding the

other factors that would have convinced the court that decertification would

serve the public interest.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/1/20




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