Com. v. Walker, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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