Com. v. Walker, D. ( 2023 )

J-S36010-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK T.T. WALKER :
:
Appellant : No. 182 EDA 2022
Appeal from the PCRA Order Entered December 8, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007470-2011,
CP-51-CR-0007471-2011, CP-51-CR-0007472-2011,
CP-51-CR-0007473-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK T.T. WALKER :
:
Appellant : No. 183 EDA 2022
Appeal from the PCRA Order Entered December 8, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007470-2011,
CP-51-CR-0007471-2011, CP-51-CR-0007472-2011,
CP-51-CR-0007473-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK T.T. WALKER :
:
Appellant : No. 184 EDA 2022
J-S36010-23
Appeal from the PCRA Order Entered December 8, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007470-2011,
CP-51-CR-0007471-2011, CP-51-CR-0007472-2011,
CP-51-CR-0007473-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK T.T. WALKER :
:
Appellant : No. 185 EDA 2022
Appeal from the PCRA Order Entered December 8, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007470-2011,
CP-51-CR-0007471-2011, CP-51-CR-0007472-2011,
CP-51-CR-0007473-2011
BEFORE: BOWES, J., NICHOLS, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 23, 2023
Derrick T.T. Walker appeals from the orders denying his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”) in each of the above-
captioned matters. We affirm.
We glean the following background from the certified record. On four
separate occasions in May of 2011, Appellant drove up to unrelated girls
between the ages of nine and eleven who were either walking to school or
waiting for a bus. In one instance, he attempted to pull a girl into his vehicle
by her arm, but she escaped. On the other three occasions, he asked the girls
whether they had “hair on [their] pussy,” but made no attempts to grab them
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as they fled. Appellant was charged in separate cases pertaining to each of
the four victims, and the cases proceeded to a consolidated jury trial in 2013.
At its conclusion, Appellant was convicted of four counts each of unlawful
contact with a minor and corruption of minors, as well as one count each of
luring a child into a motor vehicle or structure, unlawful restraint, and simple
assault. The trial court sentenced him to an aggregate term of four to ten
years in prison. This Court affirmed the judgment of sentence on direct appeal
and our Supreme Court subsequently denied Appellant’s petition for allowance
of appeal. See Commonwealth v. Walker, 139 A.3d 225, 228-29
(Pa.Super. 2016) (“Walker I”), appeal denied, 158 A.3d 1243 (2016).
Appellant filed identical pro se PCRA petitions in each case on January
17, 2018. The PCRA court appointed counsel, who filed two amendments to
the petitions. After the court issued notice of its intention to dismiss the
petitions as meritless without a hearing pursuant to Pa.R.Crim.P. 907,
Appellant submitted a pro se response, stating that counsel had not updated
him as to the status of the case nor given him copies of the latest
amendments. The court sent a copy of the amendments to Appellant, and he
shortly thereafter filed a motion for new counsel. Without ruling on Appellant’s
motion, the court denied the PCRA petitions the same day Appellant filed yet
another response to the Rule 907 notice, wherein he again asserted
ineffectiveness of PCRA counsel.
Appellant pro se filed a timely appeal. After observing that counsel had
not been given leave to withdraw, this Court remanded for a period of thirty
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days “for a determination as to whether PCRA counsel had abandoned
Appellant and further action as necessary to protect Appellant's appellate
rights.” Commonwealth v. Walker, 241 A.3d 478, 2020 WL 6375390 at *3
(Pa.Super. 2020) (non-precedential decision) (“Walker II”). In response,
the court permitted then-PCRA counsel to withdraw and appointed a new
attorney for the appeal, who then filed a brief to this Court on Appellant’s
behalf. Id. Satisfied that Appellant’s appellate rights were protected, we
proceeded to merits review, and subsequently vacated the orders denying the
PCRA petitions due to Appellant’s allegations of ineffectiveness of PCRA
counsel. Id. at *5. We further remanded the matter back to the court for
additional proceedings, ordering that counsel do the following:
(1) discern whether the instant PCRA petition is untimely and if
any time-bar exception applies; (2) review Appellant’s pro se
allegations of PCRA counsel’s ineffectiveness; (3) file
supplemental briefing limited to these issues within a reasonable
time frame; and (4) continue to represent Appellant for the
duration of these PCRA proceedings.
Id.
While on remand, the PCRA court granted counsel’s motion to withdraw
and appointed yet another attorney for Appellant. This attorney filed a
supplemental PCRA petition and memorandum of law at each docket number
addressing, inter alia, ineffective assistance of trial, direct appeal, and initial
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PCRA counsel.1 The court issued a detailed Rule 907 notice finding the claims
meritless, and ultimately dismissed the petitions when Appellant did not
respond. Appellant filed a timely notice of appeal in all matters. We
consolidated the appeals sua sponte.
The record does not reveal that Appellant was ordered to comply with
Pa.R.A.P. 1925, though the PCRA court issued a written opinion. Appellant
raises the following five issues on appeal:
I. Whether the PCRA court erred by dismissing the PCRA petitions
when clear and convincing evidence was presented to establish
that trial counsel was ineffective for conceding facts without
[A]ppellant’s consent that essentially established his guilt;
failing to object to the introduction of highly prejudicial
evidence of prior bad acts; failing to investigate and interview
witnesses[;] failing to move to sever cases[;] and failing to
protect [A]ppellant’s constitutional rights.
II. Whether the PCRA court erred by dismissing the PCRA petitions
when clear and convincing evidence was presented to establish
that [direct appeal] counsel was ineffective for failing to
challenge the sufficiency of the evidence, the denial of the
motion for judgment of acquittal, and the denial of the Rule
600 motion.
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1 Counsel also dutifully argued, per the mandate of this Court, that the
petitions were timely filed, and the PCRA court agreed. See PCRA Court
Opinion, 5/4/22, at 4-5. Our independent review of the record confirms that
Appellant filed numerous documents with the court that, although not titled
as petitions pursuant to the PCRA, nonetheless asserted claims of ineffective
assistance of counsel. See, e.g., Correspondence, 2/1/17 (identifying various
claims and requesting information “to pursue my first PCRA”). Accordingly,
we find that the underlying petitions were timely filed. See Commonwealth
v. Fantuzzi, 275 A.3d 986, 995 (Pa.Super. 2022) (holding that “regardless
of how a filing is titled, a petition should be treated as filed under the PCRA if
it is filed after the judgment of sentence becomes final and seeks relief
provided under the PCRA” (cleaned up)).
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III. Whether the PCRA court erred by dismissing the PCRA petitions
when clear and convincing evidence was presented to establish
that initial PCRA counsel was ineffective for failing to include
the meritorious issues raised in [A]ppellant’s pro se petition;
misapplied the factual and legal basis of [A]ppellant’s claims
against trial counsel; and raised meritless issues that lacked
factual support in the trial record.
IV. Whether the PCRA court erred by dismissing the PCRA petitions
when clear and convincing evidence was presented to establish
violations of [A]ppellant’s constitutional rights under the United
States and Pennsylvania Constitutions, including a conviction
based on evidence that did not establish his guilt beyond a
reasonable doubt, as well as his Sixth Amendment right to
effective representation.
V. Whether the PCRA court erred by failing to grant an evidentiary
hearing.
Appellant’s brief at 9.
We begin with the legal tenets pertinent to our review. “Our standard
of review of a PCRA court’s dismissal of a PCRA petition is limited to examining
whether the PCRA court’s determination is supported by the record evidence
and free of legal error.” Commonwealth v. Johnson, 179 A.3d 1153, 1156
(Pa.Super. 2018) (cleaned up). Further, “[i]t is an appellant’s burden to
persuade us that the PCRA court erred and that relief is due.”
Commonwealth v. Thomas, 270 A.3d 1221, 1226 (Pa.Super. 2022).
Collectively, Appellant’s first three issues relate to ineffective assistance
of trial, direct appeal, and initial PCRA counsel, respectively. Counsel is
presumed to be effective and the petitioner bears the burden of proving
otherwise. See Commonwealth v. Johnson, 236 A.3d 63, 68 (Pa.Super.
2020) (en banc). To do so, he must establish the following three elements:
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(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) the
petitioner suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different.
Id. (citations omitted). Failure to prove any of the three elements will result
in dismissal of the ineffectiveness claim. Id. (citation omitted).
With these principles in mind, we turn to the issues presented by
Appellant. First, we address his claims of ineffectiveness against trial counsel.
Appellant asserts three bases of deficient performance by counsel: (1)
conceding in opening remarks that Appellant made certain sexually-charged
statements to the female victims; (2) failing to prevent the Commonwealth’s
introduction of Pa.R.E. 404(b) evidence; and (3) neglecting to investigate or
interview Commonwealth witnesses that could have established an alibi or
supported an argument for severance of the cases. See Appellant’s brief at
16-19. He avers in particular that trial counsel’s concession that he asked
three of the four victims “do you have hair on your pussy,” constitutes
ineffectiveness pursuant to McCoy v. Louisiana, 138 S.Ct. 1500 (2018),
which precludes counsel from admitting guilt contrary to a defendant’ wishes.2
See Appellant’s brief at 16. According to Appellant, counsel’s collective errors
prevented him from presenting a valid defense. Id. at 18.
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2 In that case, the United States Supreme Court held that a criminal defendant
“has the right to insist that counsel refrain from admitting guilt, even when
counsel’s experienced-based view is that confessing guilt offers the defendant
the best chance to avoid the death penalty.” McCoy v. Louisiana, 138 S.Ct.
1500, 1505 (2018).
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In its Rule 1925(a) opinion, the PCRA court determined that McCoy was
inapplicable to this matter since it was decided in 2018, whereas trial occurred
in 2013. See PCRA Court Opinion, 5/4/22, at 6. The court reasoned that,
pursuant to the appropriate standards under Pennsylvania law at the time,
counsel had a reasonable basis to concede to the jurors that Appellant made
this remark. Id. at 6-7. It noted that three unacquainted girls were going to
testify that Appellant separately made the same exact statement to them, and
that it would be extremely unlikely for a jury to disbelieve that testimony. Id.
at 6. By conceding to the jury that Appellant made this comment to the girls,
it could impute credibility to Appellant, which would aid in defending against
the much more serious charges relating to his attempt to pull one of the
victims into the vehicle. Id. at 7.
Additionally, the court found that the arguments concerning the Rule
404(b) evidence and alleged failure to investigate were wholly undeveloped in
Appellant’s PCRA petitions. Id. at 7-9. It stated that Appellant did not identify
the bad act evidence to which counsel should have objected, and that, in fact,
none was introduced at trial because the trial court denied the
Commonwealth’s request to introduce prior bad act evidence. Id.
Additionally, Appellant neglected to discuss any particular witnesses that
should have been investigated or how any of them would have led to the
development of an alibi or helped to develop any basis for why the cases
should have been severed. Id.
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Upon review, we find that the court’s determinations are “supported by
the record evidence and free of legal error.” Johnson, supra at 1156.
Appellant’s reliance on McCoy is misplaced, as that decision post-dated
Appellant’s trial and direct appeal by several years. Accordingly, its holding
has no bearing on our analysis of trial counsel’s performance. See
Commonwealth v. Colon, 230 A.3d 368, 377 (Pa.Super. 2020) (stating that
“counsel’s stewardship must be judged under the existing law at the time of
trial and counsel cannot be deemed ineffective for failing to predict future
developments or changes in the law”). Considering the fact that Appellant
faced a litany of serious felonies relating to his attempt to pull one of the
victims into his car, it was a reasonable strategy for counsel to concede
Appellant’s statements to the girls in an effort to bolster his credibility.
Moreover, we note that while trial counsel told the jury that Appellant inquired
from the victims as to whether they had pubic hair, she did not admit that this
satisfied the elements of any crimes charged or that Appellant was guilty.
Thus, there is no arguable merit to Apellant’s contention that counsel ran afoul
the Supreme Court’s ruling in McCoy.3
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3 As the Commonwealth posits, it is unlikely that McCoy can be so broadly
interpreted as to provide Appellant relief in this situation, even had it been
decided prior to his trial. See Commonwealth’s brief at 12 n.8. In that case,
counsel readily admitted to the jury that the defendant “committed three
murders. . . . He’s guilty.” McCoy v. Louisiana, 138 S.Ct. 1500, 1505 (2018)
(cleaned up). Thus, the attorney conceded that the elements of the crime
were met, and that the defendant was culpable as charged. Further, this
(Footnote Continued Next Page)
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The remainder of Appellant’s claims of trial counsel ineffectiveness,
concerning counsel’s purported failure to challenge the introduction of Rule
404(b) evidence or to investigate witnesses, are either belied by the record or
underdeveloped. In the PCRA petitions, Appellant does not identify any bad
act evidence admitted against him at trial whatsoever, let alone that there
was any basis to object to such evidence. Indeed, the trial court denied the
Commonwealth’s request to introduce prior bad act evidence.
Appellant also neglects to identify who counsel should have interviewed
to support either an alibi defense or an argument that the four cases should
have been severed. Appellant likewise discusses no particular evidence his
trial attorney could have offered shedding light on either of these subjects. In
the same vein, Appellant’s brief does not list anyone who would proffer any
testimony helpful to Appellant in this regard. As such, Appellant simply failed
to prove the ineffectiveness of trial counsel and is not entitled to relief on this
claim.
Next, we review Appellant’s claims of ineffectiveness asserted against
direct appeal counsel, which Appellant argues occurred when counsel failed to
challenge on appeal: (1) the sufficiency and weight of the evidence; (2) the
denial of a motion for judgment of acquittal on the unlawful restraint charge;
____________________________________________
comment was made during the penalty phase of a death penalty case to
convince the jury to impose life imprisonment. Here, counsel simply indicated
the fact that Appellant made a statement to the female victims about pubic
hair but did not acknowledge that these statements constituted a crime or
Appellant’s guilt.
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and (3) the denial of Appellant’s motion to dismiss filed pursuant to
Pa.R.Crim.P. 600. See Appellant’s brief at 19-22. He contends that counsel’s
direct appeal brief was so inadequate that it effectively foreclosed appellate
review. Id. at 21. Notably, after initially identifying them, Appellant offers
no further discussion in his petitions or brief concerning the motion for
judgment of acquittal or his Rule 600 motion.
The PCRA court found that Appellant again failed to demonstrate
ineffective assistance of counsel, noting that on direct appeal, counsel for
Appellant did challenge the sufficiency of nearly every one of his convictions.
See PCRA Court Opinion, 5/4/22, at 10. As such, it concluded that the claim
had no arguable merit. Id. Further, it found that any argument that the
verdicts were against the weight of the evidence would fail in light of the
overwhelming evidence of guilt introduced at trial.4 Id. It determined that
there was no prejudice arising from the failure to challenge the denial of the
motion for judgment of acquittal on appeal, since it is analyzed under the
same basis as a sufficiency claim. Id. at 11. Finally, the court found that the
argument concerning the Rule 600 motion was undeveloped, as Appellant did
____________________________________________
4 The PCRA court listed the incriminating evidence as follows:
[T]he victims[,] who unequivocally identified [Appellant] as the
perpetrator; the binoculars, camera, and newspaper found in
[Appellant]’s car; the fact that [Appellant] made the same lewd
comment, verbatim, to three of the four victims who did not know
each other; and the similarities of the time, place[,] and nature of
the crimes.
PCRA Court Opinion, 5/4/22, at 10.
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not discuss the motion or offer any argument as to why it was meritorious.
Id. at 10.
Again, we find that the PCRA court’s decision is supported by the record
and discern no legal error. On direct appeal, Appellant challenged the
sufficiency of the evidence to sustain his convictions for unlawful contact with
a minor, luring a minor into a vehicle, simple assault, and corruption of minors.
See Walker I, supra at 228-29 (Pa.Super. 2016). Consequently, there is no
arguable merit to any claim that direct appeal counsel failed to preserve or
raise these issues. The only charge not raised on direct appeal was the single
count of unlawful restraint. However, in the PCRA petitions, Appellant
provides no discussion concerning the elements of that crime or how any
challenge to the sufficiency of that conviction would have been meritorious.
He similarly does not discuss how he was prejudiced by the failure to challenge
a motion for judgment of acquittal as to that charge, which is reviewed on
appeal under the same standard as a sufficiency claim. See Commonwealth
v. Stahl, 175 A.3d 301, 303-04 (Pa.Super. 2017) (stating that courts apply
the standard of review concerning sufficiency claims to those that arise in the
context of a challenge to the denial of a motion for judgment of acquittal).
Accordingly, he cannot demonstrate how a failure to raise that issue on appeal
prejudiced him.
Additionally, as the PCRA court highlighted, Appellant neglected to
advance any meaningful discussion about any motion to dismiss pursuant to
Rule 600 in his petitions, and he has likewise failed to do so in his brief to this
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Court. Our review of the record indicates that such a motion was filed and
denied, but Appellant does not connect the failure to argue the claim on appeal
to deficient performance by counsel. “This Court will not act as counsel and
will not develop arguments on behalf of an appellant.” Commonwealth v.
Jezzi, 208 A.3d 1105, 1110 (Pa.Super. 2019) (citation omitted). The same
inadequacy befalls his assertion that counsel should have argued that the
verdicts were against the weight of the evidence on appeal. We are left to
guess how such a claim would be meritorious. As such, Appellant has not
overcome the presumption that direct appeal counsel was effective.
We next address Appellant's third claim, which challenges the
performance of initial PCRA counsel. Appellant asserts that PCRA counsel did
not participate in the proceedings and “essentially abandoned” Appellant by
not filing a brief supporting the amended PCRA petitions. Appellant’s brief at
23. He also avers that initial PCRA counsel did not communicate with
Appellant throughout the process, sent him no copies of certain filings, and
excluded from the petitions meritorious issues, such as trial counsel’s
concession during opening remarks, discussed above. Id.The PCRA court, agreeing with an argument advanced by the
Commonwealth below, found that this issue was moot. See PCRA Court
Opinion, 5/4/22, at 11-12. It noted that when this Court remanded the case
for further proceedings, we instructed subsequent PCRA counsel to review
Appellant’s claims and file any appropriate supplemental material. Id. The
PCRA court appointed Appellant new counsel, who on remand complied with
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this Court’s directives, filing both a supplemental petition and memorandum
of law. Therein, counsel raised the claims of ineffective assistance of counsel
and constitutional violations presently before us. Id. at 12.
There is no legal error with the court’s analysis. Any issues arising from
initial PCRA counsel failing to send documents to Appellant or consult with him
regarding his claims was remedied after we remanded these cases. Indeed,
the whole purpose of remand was to ensure that Appellant had “meaningful
appointment of counsel” for his first PCRA petition, and that his legitimate
claims were considered. Walker II, supra at *5. His current PCRA counsel
had the opportunity to review all issues, and in fact filed supplemental
documents raising them. Appellant’s argument is therefore moot and,
accordingly, he has failed to prove the ineffectiveness of initial PCRA counsel.
In his fourth issue, Appellant maintains that the court erred in dismissing
the petitions because there was “clear and convincing evidence” establishing
violations of Appellant’s rights under the Pennsylvania and United States
constitutions “that so undermined the truth determining process that no
reliable adjudication of guilt or innocence could have taken place.” Appellant’s
brief at 24. Bootstrapping to the claims of ineffective assistance of counsel
addressed above, he states that “[t]he aforementioned constitutional
violations, beyond establishing a basis to establish counsel’s ineffectiveness,
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constitute a basis for relief pursuant to [§] 9543(a)(2)(1).” 5 Id. He contends
that “the testimony of Officer Reiser indicates that [A]ppellant was in police
custody at the time of the alleged incident pertaining to complainant N.B.” 6
Id. He additionally asserts that the Commonwealth failed to establish that
the statements made by him to the child victims were “criminally lewd or
obscene,” essentially renewing a challenge to the sufficiency of the evidence
to support the convictions arising therefrom. Id. Appellant then goes on to
similarly attack the sufficiency of the evidence supporting his convictions for
corruption of minors, unlawful restraint, and unlawful contact with minors.
Id. at 24-25.
Appellant has not convinced us that there were any constitutional errors
at trial that “so undermined the truth determining process that no reliable
adjudication of guilt or innocence could have taken place.”7 42 Pa.C.S.
§ 9543(a)(2)(i). As has been discussed already, any constitutional right
asserted by Appellant pursuant to McCoy does not entitle him to relief since
____________________________________________
5 Additionally, Appellant identifies without any citation or discussion “Fifth
Amendment, Sixth Amendment, and Due Process violations[.]” Appellant’s
brief at 24. Since he fails to develop these particular arguments, they are
waived.
6 Although it is not clear, it appears that Appellant intended to articulate the
initials as K.B. instead of N.B. No victim with the initials of N.B. testified at
trial.
7 We note that the PCRA court did not address this particular contention in its
opinion. Nonetheless, we may affirm the PCRA court’s order on any basis
supported by the record. See Commonwealth v. Howard, 285 A.3d 652,
657 (Pa.Super. 2022).
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it was not decided until after his direct appeal. Appellant advances no reason,
and we see none, to convince us that the rule in McCoy applies retroactively
for purposes of determining a violation of constitutional rights.
Furthermore, Appellant’s bald assertions that that the evidence was
insufficient to sustain his convictions, without citation to relevant legal
authority, constitutes waiver as to these issues. See Commonwealth v.
Midgley, 289 A.3d 1111, 1118 (Pa.Super. 2023) (stating “[w]here the
appellant fails to develop an issue or cite legal authority, we will find waiver
of that issue.” (citation omitted)). Consequently, Appellant has not shown
any reversible error on the part of the PCRA court as it pertains to this
argument.
Appellant’s final claim is that the court erred in denying the PCRA
petitions without holding an evidentiary hearing. See Appellant’s brief at 25.
He contends that the issues raised in the petitions were “legitimate, based on
fact and supported by legal precedent.” Id.It is well-settled that there is no absolute right to an evidentiary hearing
on a PCRA petition. See Commonwealth v. Hill, 202 A.3d 792, 797
(Pa.Super. 2019). Moreover, “[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
hearing.” Commonwealth v. Brown, 196 A.3d 130, 193 (Pa. 2018) (cleaned
up).
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Based on our discussion above, we find that the PCRA court did not
abuse its discretion in denying the underlying petitions without a hearing.
Appellant presented no issues of fact requiring a hearing for resolution.
Indeed, all of his arguments as stated were capable of being fully addressed
on the record developed in these matters.
As none of Appellant’s issues on appeal is meritorious, we have no cause
to disturb the orders dismissing his PCRA petitions.
Orders affirmed.
Date: 10/23/2023
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