J-S37039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 TERRY WALKER                               :
                                            :
                    Appellant               :   No. 2666 EDA 2016

                 Appeal from the PCRA Order August 9, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0608421-2005


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

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JULY 19, 2018

      Appellant Terry Walker appeals the order of the Court of Common Pleas

of Philadelphia County denying his petition pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.         This Court previously

remanded this case for the PCRA court to hold an evidentiary hearing on

Appellant’s claim that his trial counsel was ineffective in advising him not to

testify. After careful review, we affirm.

      This Court previously summarized the facts of this case 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 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

____________________________________
* Former Justice specially assigned to the Superior Court.
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     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, 981 A.2d 325 (Pa.Super. filed June 5, 2009).

     On March 5, 2007, a jury convicted Appellant of first-degree murder,

robbery, and possessing an instrument of crime (PIC). Thereafter, Appellant

was sentenced to life imprisonment for the murder conviction, 10 – 20 years’

imprisonment for the robbery conviction, and 2½ – 5 years’ imprisonment for

the PIC conviction, with all sentences running consecutively.    On June 5,

2009, this Court affirmed the judgment of sentence and on November 25,

2009, our Supreme Court denied Appellant’s petition for allowance of appeal.

     On February 8, 2010, Appellant filed a pro se PCRA petition. The PCRA

court appointed Appellant counsel, who filed multiple continuances and

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eventually filed a petition to withdraw and a “no-merit letter” pursuant to

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). However, after

Appellant filed a response to the PCRA court’s notice pursuant to Pa.R.Crim.P.

907, PCRA counsel filed an amended petition raising two claims for review.

      On April 23, 2013, the PCRA court filed a second Rule 907 notice of its

intent to dismiss Appellant’s petition without a hearing. Appellant did not file

a response and on July 8, 2013, the PCRA court dismissed the petition. On

January 28, 2015, this Court vacated the PCRA court’s order and remanded

for an evidentiary hearing solely to address Appellant’s claim that his trial

counsel was ineffective in advising him to waive his right to testify at trial.

See Commonwealth v. Walker, 110 A.3d 1000, 1007 (Pa.Super. 2015).

      After holding evidentiary hearings on June 23, 2016 and July 12, 2016,

the PCRA court ultimately denied Appellant’s petition on August 9, 2016 at a

hearing at which the PCRA court gave its findings of fact and law on the record.

Appellant filed a timely appeal.

      Appellant raises the following issues for review on appeal:

      1) Whether the PCRA court erred as a matter of law by denying
         post conviction relief where trial counsel was ineffective for
         advising [A]ppellant that should he testify in his own behalf the
         Commonwealth could impeach him with his prior criminal
         record for violence and drugs, where [A]ppellant did not have
         any crimen falsi convictions, which was so unreasonable as to
         vitiate his knowing and intelligent decision not to testify in his
         own behalf?




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      2) Whether there was a miscarriage of justice such that the
         appellate court should review [A]ppellant’s claim that trial
         counsel was ineffective for not protecting [A]ppellant’s right to
         due process by failing to object to the Court’s erroneous jury
         instruction on reasonable doubt?

      3) Whether the trial court erred by identifying [A]ppellant in her
         Opinion as the driver of the vehicle in which [the] decedent was
         found, which is not supported by the record where the only
         eye[-]witness could not identify said person?

Appellant’s Brief, at 4.

      Our standard of review is as follows:

      When reviewing the denial of a PCRA petition, we must determine
      whether the PCRA court's order is supported by the record and
      free of legal error. Generally, we are bound by a PCRA court's
      credibility determinations. However, with regard to a court's legal
      conclusions, we apply a de novo standard.

Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted).

      In order to be eligible for PCRA relief, the petitioner must prove by a

preponderance of the evidence that his conviction or sentence resulted from

one or more of the enumerated circumstances found in 42 Pa.C.S.A. §

9543(a)(2), which includes the ineffective assistance of counsel. In reviewing

ineffectiveness of counsel claims, we are mindful of the following:

            [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 relief, a petitioner must demonstrate
      that counsel's performance was deficient and that the deficiency

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      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.

Walker, 110 A.3d at 1003 (quoting Commonwealth v. Johnson, 600 Pa.

329, 966 A.2d 523, 532–33 (2009) (citations omitted)).

      Appellant first claims that trial counsel was ineffective in advising him

not to testify at trial and asserts that counsel mistakenly told Appellant that

he could be impeached with his prior criminal record. Appellant contends that,

absent this advice, he would have testified at trial. This Court has held that:

      The 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 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. Smith, 181 A.3d 1168, 1179 (Pa.Super. 2018) (quoting

Commonwealth v. Nieves, 560 Pa. 529, 746 A.2d 1102, 1104 (2000)

(citations omitted)).

      Before trial, Appellant knowingly and voluntarily waived his right to

testify during an oral colloquy with the trial court. Notes of Testimony (N.T.),

3/1/07, 187-88. At the PCRA hearing, Appellant’s trial counsel, Gary Server,

Esq., emphasized that he made it clear that it was Appellant’s decision to

decide whether he would testify at trial.     Atty. Server denied that he told


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Appellant he could be impeached by crimen falsi convictions as Appellant did

not have convictions of crimes of dishonesty. Instead, Atty. Server offered

other reasons for advising Appellant not to testify:

      [Atty. Server:] I told [Appellant] that he had no criminal
      convictions for dishonesty; therefore, he couldn’t be impeached
      by that but I also told him if he testified and he happened to say
      something on the stand that Judge Hughes believed opened up
      the door, that he could be questioned by the Commonwealth
      attorney about his prior conduct, his prior actions, some of which
      included his convictions.

      I believe he had a conviction for aggravated assault and also
      possession with intent to deliver. I informed him that if he made
      certain comments, like he had been making to me during the
      course of preparation, that Judge Hughes certainly would have
      allowed the door to have been opened … and some of that prior
      conduct Judge Hughes might have ruled was admissible to show
      motive, to show lack of mistake, to show intent, things like that,
      things set forth under 404 B.

      [PCRA counsel:] Now when you say in light of some of the
      comments he made to you ---

      [Atty. Server:] Yes.

      [PCRA counsel:] – do you recall what some of those comments
      were?

      [Atty. Server:] I do because he said them over and over again.
      One of the first things [Appellant] said to me when I met him in
      the secured housing unit at the federal prison for the first time,
      he said that his faith would have prevented him from engaging in
      violence or having anything to do with drugs and that he was a
      role model to his child. I believe he had a son.

      Those comments were made to me several times and certainly I
      was concerned that he might have said something like that while
      he was on the stand being cross-examined and that certainly
      would have put us in a position where Judge Hughes might have
      had to consider that that door would have been opened and that

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      would have opened up a cross-examination to a whole wide range
      of subjects. It would not have been helpful to him.

N.T. PCRA hearing, 6/23/16, at 8-9.

      In addition, Atty. Server also considered that Appellant might present

himself poorly as a witness in his capital murder trial:

      [Commonwealth:] Can you describe [Appellant’s] demeanor when
      you met with him?

      [Atty. Server:] [Appellant] is a very emotional person. He is
      bombastic and loud. He can be arrogant. He can be unreasonable
      and he can be self-righteous.

      [Commonwealth:] Did you consider that when you discussed with
      him the disadvantages of testifying?

      [Atty. Server:] Yes. As a matter of fact, one of the things that I
      discussed with [Appellant] is if he testified, the perception the jury
      would have of him and how that might impact if we actually had
      to go to a penalty hearing. That was important to me, yes.

N.T. PCRA hearing, 6/23/16, at 33.

      In contrast, Appellant testified at the PCRA hearing that counsel had told

him not to testify as the Commonwealth could impeach Appellant with crimen

falsi convictions. He did not remember any conversations with Atty. Server in

which he claimed that he could not have been responsible for the charged

murder due to his religious beliefs.

      Based on this testimony, the PCRA court concluded the following:

      Mr. Server also told [Appellant] that the decision to testify was
      completely his, that this is one of the five decisions [Appellant]
      gets to make that [Appellant] would not intrude upon. Mr. Server
      testified that he advised [Appellant] properly about the law, that
      he gave [Appellant] all the alternatives, that he told [Appellant]
      that [he] had the right to testify or not … this Court finds Mr.
      Server’s testimony credible, that he did not inform

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      [Appellant] that he had crimen falsi and did not tell
      [Appellant] that his crimen falsi convictions or any other
      convictions would be used against him… Mr. Server advised
      [Appellant] that he had no crimen falsi that could be used against
      him, but that if [Appellant] took the stand and testified that he
      could not have committed these crimes because he is a man of
      faith and could not engage in violence or drugs, [Appellant] would
      have opened the door or could have opened the door to rebuttal
      regarding prior bad acts committed involving violence or drugs.

N.T. PCRA hearing, 8/9/16, at 9-11.

       We will not disturb the PCRA court’s credibility determinations. See

Johnson, supra.       Moreover, we cannot find that counsel’s advice was

unreasonable as “[o]ur jurisprudence permits the use of a defendant's prior

non-crimen falsi conviction where it is limited to the specific rebuttal of the

defendant's unsolicited testimony of his good character.” Commonwealth v.

Crosley, 180 A.3d 761, 770 (Pa.Super. 2018). Accordingly, we conclude that

the trial court did not err in dismissing Appellant’s claim that counsel was

ineffective in advising him not to testify.

      In Appellant’s remaining two claims, Appellant argues that (1) counsel

was ineffective in failing to object to a certain jury instruction and (2) the trial

court made an erroneous finding of fact in her opinion by identifying Appellant

as the driver of the vehicle where the victim was found. Neither of these

claims were properly raised before the PCRA court before Appellant appealed

to this Court.

      While Appellant filed several pro se documents seeking to raise

additional claims while after counsel’s amended petition had been denied and

Appellant’s first appeal was pending before this Court, Appellant’s failure, prior


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to his PCRA appeal, to raise these issues before the PCRA court results in

waiver of these claims. Commonwealth v. Pitts, 603 Pa. 1, 10, 981 A.2d

875, 880 n. 4 (2009) (finding appellant was required to raise new claims of

counsel ineffectiveness after counsel sought to withdraw and the PCRA court

issued notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P.

907).

        Moreover, we decline Appellant’s request for the review of claims

beyond the scope of this Court’s limited remand.         Commonwealth v.

Lawson, 789 A.2d 252, 253 (Pa.Super. 2001) (emphasizing that “where a

case is remanded to resolve a limited issue, only matters related to the issue

on remand may be appealed”) (citation omitted). As noted above, this Court

remanded this case for an evidentiary hearing solely to address Appellant’s

claim that his trial counsel was ineffective in advising him to waive his right

to testify at trial. See Walker, 110 A.3d at 1007.

        For the foregoing reasons, we affirm the PCRA court’s order dismissing

Appellant’s petition.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/19/18




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