J-S61030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TARIQ D. JENKINS                           :
                                               :
                       Appellant               :   No. 3438 EDA 2018

             Appeal from the PCRA Order Entered October 24, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000679-2013


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 13, 2019

        Appellant, Tariq D. Jenkins, appeals from the order entered on October

24, 2018, which denied his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        As the PCRA court explained:

          In the early morning hours of June 16, 2012, [Appellant] shot
          and killed Cornelius Riggs at 15th and Federal Streets in
          Philadelphia. Leonard Thompson was in the area that night
          looking for drugs. He testified that he saw [Appellant],
          wearing a light blue hoodie, and the victim[, Cornelius Riggs,]
          walking down the street together. Then, he saw [Appellant]
          pull out a gun, shoot Riggs four or five times, saw sparks
          come from the muzzle of the gun, and saw [Appellant] run
          away. Security camera footage from multiple stores
          documented [Appellant], wearing a light blue hoodie, and the
          victim going down the street together, the shooting, and then
          [Appellant] walking a short distance away in a white t-shirt.
          ...
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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        Police Officer Chris Lai, who works in the area, identified
        [Appellant] as the man walking in the white t-shirt. Tanya
        Love, who hangs out in the area, testified that she was asked
        by [Appellant] to retrieve a light blue hoodie that he dropped
        in the area of 16th Street approximately three hours after the
        shooting occurred. Love testified that the sweatshirt she
        retrieved that night was the same sweatshirt [Appellant] was
        wearing on security footage. Love and Officer Lai both
        testified that [Appellant] disappeared from the area after the
        shooting. Another witness told investigators that Riggs
        pulled a gun on [Appellant] around noon the previous day
        and that friends made fun of [Appellant] for not getting back
        at him. That witness was uncooperative at trial.

        On August 12, 2014, [Appellant] was found guilty by a jury .
        . . on the charges of first-degree murder, possessing a
        firearm without a license (“VUFA § 6106”), possessing a
        firearm in Philadelphia (“VUFA § 6108”), and possession of
        an instrument of crime (“PIC”). The same day, [Appellant]
        was sentenced to a mandatory sentence of life without the
        possibility of parole on the charge of first-degree murder and
        to [two-and-a-half to five years’] incarceration on the charge
        of VUFA § 6106 to run consecutive. No further penalty was
        imposed on the charges of VUFA § 6108 and PIC.

PCRA Court Opinion, 2/26/18, at 2.

      On March 8, 2016, this Court affirmed Appellant’s judgment of sentence

and, on September 30, 2016, the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal.   Commonwealth v. Jenkins,

144 A.3d 192 (Pa. Super. 2016) (unpublished memorandum) at 1-6, appeal

denied, 158 A.3d 1225 (Pa. 2016).

      On February 7, 2017, Appellant filed a timely, pro se PCRA petition. The

PCRA court appointed counsel to represent Appellant and, on November 12,

2017, counsel filed an amended petition on Appellant’s behalf. Within this

petition, Appellant claimed that trial counsel was ineffective because “counsel

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unreasonably prevented [Appellant] from testifying in his own case.          If

[Appellant] had testified he would have presented exculpatory evidence and,

if believed, [Appellant] would have been acquitted.” Amended PCRA Petition,

11/12/17, at 2.

      On September 24, 2018, the PCRA court provided Appellant with notice

that it intended to dismiss his PCRA petition in 20 days, without holding a

hearing.     See Pa.R.Crim.P. 907(1).        The PCRA court finally dismissed

Appellant’s petition on October 24, 2018 and Appellant filed a timely notice of

appeal. Appellant raises one claim on appeal:

           Did the [PCRA] court err in dismissing the [PCRA] petition,
           without a hearing, even though Appellant pled, and would
           have been able to prove that he was entitled to a new trial as
           he was victimized by ineffective assistance of trial counsel
           who insisted that [Appellant] not testify on his own behalf
           during trial, even though [Appellant] wished to so testify to
           present exculpatory evidence to the jury?

Appellant’s Brief at 3 (some capitalization omitted).

      “We review a ruling by the PCRA court to determine whether it is

supported by the record and is free of legal error. Our standard of review of

a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar,

154 A.3d 287, 296 (Pa. 2017) (citations omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily



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enumerated circumstances is 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

      Counsel is presumed to be effective and “the burden of demonstrating

ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead

and prove by a preponderance of the evidence that:

        (1) his underlying claim is of 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 challenged
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court

explained:

        A claim has arguable merit where the factual averments, if
        accurate, could establish cause for relief.                 See
        Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
        (“if a petitioner raises allegations, which, even if accepted as
        true, do not establish the underlying claim . . . , he or she
        will have failed to establish the arguable merit prong related
        to the claim”). Whether the facts rise to the level of arguable
        merit is a legal determination.

        The test for deciding whether counsel had a reasonable basis
        for his action or inaction is whether no competent counsel
        would have chosen that action or inaction, or, the alternative,
        not chosen, offered a significantly greater potential chance of
        success. Counsel’s decisions will be considered reasonable if
        they effectuated his client's interests. We do not employ a
        hindsight analysis in comparing trial counsel's actions with
        other efforts he may have taken.

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        Prejudice is established if there is a reasonable probability
        that, but for counsel’s errors, the result of the proceeding
        would have been different. A reasonable probability is a
        probability sufficient to undermine confidence in the
        outcome.


Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

quotations and citations omitted). “[T]he 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.” Commonwealth v. Walker, 110 A.3d 1000,

1005 (Pa. Super. 2015) (emphasis omitted).

      Further, a PCRA petitioner is not automatically entitled to an evidentiary

hearing on his petition. A PCRA petition may be dismissed without a hearing

if the PCRA court “is satisfied from [its review of the petition] that there are

no genuine issues concerning any material fact and that the [petitioner] is not

entitled to post-conviction collateral relief, and no purpose would be served

by any further proceedings.” Pa.R.Crim.P. 907(1). However, when the PCRA

petition raises material issues of fact, the PCRA court “shall order a hearing.”

Pa.R.Crim.P. 908(A)(2). Thus, “[t]o obtain reversal of a PCRA court's decision

to dismiss a petition without a hearing, an appellant must show that he raised

a genuine issue of fact which, if resolved in his favor, would have entitled him

to relief, or that the court otherwise abused its discretion in denying a


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hearing.”   Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011)

(quotations and citations omitted).

      To show that “counsel was ineffective for failing to advise [a defendant]

of his [right to testify], the [petitioner] 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. Smith, 181 A.3d 1168, 1179 (Pa. Super.

2018) (citation omitted). However, “[a] defendant will not be afforded relief

[on an ineffective assistance of counsel claim] where he voluntarily waives the

right to take the stand during a colloquy with the court, but later claims that

he was prompted by counsel to lie or give certain answers.” Commonwealth

v. Lawson, 762 A.2d 753, 756 (Pa. Super. 2000).

      During Appellant’s trial, the following colloquy occurred:

        [Appellant’s Counsel]: . . . My client and I have made the
        decision that a - - strategic decision based on how this trial
        went that we will not put my client on the stand and we are
        ready to proceed to closing argument.

                                      ...

        [Trial Court]: [Appellant,] I have to ask you some questions.
        . . . I have to be sure your decision [not to testify] is
        knowingly and voluntarily made.

        How old are you?

        [Appellant]: [25].

        [Trial Court]: How far did you go in school?

        [Appellant]: High school, but I did a semester of college.

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       [Trial Court]: Okay. So you read, write and understand the
       English language?

       [Appellant]: Yes.

       [Trial Court]: Right now are you under the influence of any
       drugs or alcohol?

       [Appellant]: No.

       [Trial Court]: Have you ever been a patient in a mental
       institution or been treated for a mental illness?

       [Appellant]: No.

       [Trial Court]: You lawyer indicated that you do not wish to
       give testimony; is that correct?

       [Appellant]: Yes.

       [Trial Court]: Did you have an opportunity to discuss the pros
       and     the     cons,    good    things/bad     things,    the
       advantages/disadvantages of giving testimony in this case?

       [Appellant]: Can you restate that?

       [Trial Court]: Did you have an opportunity to discuss the pros
       and cons, good things/bad things, advantages and
       disadvantages of giving testimony in this case?

       [Appellant]: Not all of the way.

       [Trial Court]: Not all of the way? What do you mean?

       [Appellant]: We didn’t discuss that. We discussed it briefly.

       [Appellant’s Counsel]: Three minutes, Judge.

       [Trial Court]: Okay. Well, at this time, the court will take a
       brief recess so that defense counsel can have a conversation
       with his client. Do you want to be put in the booth?

       [Appellant’s Counsel]: Yes, please.

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       [Trial Court]: Would you put him in the booth; brief recess.

       (Brief recess)

       [Trial Court]: Okay. [Appellant and Appellant’s counsel] are
       back in the room. Sir, after having an opportunity to speak
       to your lawyer, I ask the question again.

       Did you have an opportunity to discuss the pros and cons,
       good things/bad things, the advantages/disadvantages of
       giving testimony in this case?

       [Appellant]: No. He told me what he wanted to do. He didn’t
       listen to what I choose to do.

       [Trial Court]: Do you want to be tried - -

       [Appellant]: I don’t want to give testimony. Refers to - -

       [Trial Court]: Sir, - -

       [Appellant]: I agree to waive the testimony, but - -

       [Trial Court]: Sir, don’t talk while I talk. . . . So the question
       that I asked before you left the room was, did you have an
       opportunity to discuss the pros and the cons – sometimes
       people don’t know what pros and cons mean. This means
       good things and bad things. Sometimes it may be more
       clear; advantages and disadvantages of giving testimony.
       And you indicated that you did not have enough of a
       conversation about it, so you wanted to have more
       conversation. So we took a recess, put you in the booth, and
       allowed you to discuss whether you wish to give or not to
       give testimony in this case.

       So now we are still at the same point. The question is still on
       the table. Do you want to give testimony or not?

       [Appellant]: No.

       [Trial Court]: The decision can’t be your [lawyer’s]. It has to
       be yours, which is why I even ask these questions. It has to
       be your own decision.

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          So you don’t want to give testimony?

          [Appellant]: No, I don’t.

          [Trial Court]: Did anyone threaten you or force you to make
          you come to that decision?

          [Appellant]: No, ma’am.

          [Trial Court]: Have you come to that decision of your own
          free[]will?

          [Appellant]: Yes, ma’am.

          [Trial Court]: I find [Appellant] has made a knowingly,
          intentional and voluntary decision to refrain from giving
          testimony in this case.

N.T. Trial, 8/8/14, at 9-14.

      From the above, it is apparent that the trial court thoroughly colloquied

Appellant on his decision not to testify on his own behalf and that Appellant

clearly told the trial court that after speaking with his counsel, he did not want

to testify on his own behalf; no one “threaten[ed him] or force[d him] to make

. . . that decision;” and, he “[came] to that decision of [his] own free[]will.”

See id.

      In his PCRA petition and on appeal, Appellant baldly and vaguely claims

that his counsel “prevented” him from testifying on his own behalf. Amended

PCRA Petition, 11/12/17, at 2; Appellant’s Brief at 7-9.       Appellant did not

provide either the PCRA court or this Court with any explanation or elucidation

as to how counsel interfered with his right to testify on his own behalf. As

such, Appellant’s claim immediately fails.       See Paddy, 15 A.3d at 443



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(“boilerplate allegations and bald assertions of no reasonable basis and/or

ensuing prejudice cannot satisfy a petitioner's burden to prove that counsel

was ineffective”); Commonwealth v. Bazabe, 590 A.2d 1298 (Pa. Super.

1991) (a bald allegation that counsel was ineffective for interfering with the

defendant’s right to testify at trial does not entitle the defendant to an

evidentiary hearing on his petition because “mere boilerplate allegations will

not suffice to require a hearing”).

      Appellant’s claim also fails because his unexpounded-upon allegation

merely amounts to a claim that he lied during his colloquy with the trial court

– and, as we have held, “[a] defendant will not be afforded relief where he

voluntarily waives the right to take the stand during a colloquy with the court,

but later claims that he was prompted by counsel to lie or give certain

answers.” Lawson, 762 A.2d at 756.

      Thus, Appellant’s claim on appeal fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/19




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