Com. v. Walker, T. ( 2015 )

J-S74005-14
2015 Pa. Super. 17
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TERRY WALKER, :
:
Appellant : No. 2246 EDA 2013
Appeal from the PCRA Order Entered July 8, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0608421-2005
BEFORE: BENDER, P.J.E., DONOHUE, and STRASSBURGER,* JJ.
DISSENTING OPINION BY STRASSBURGER, J.: FILED JANUARY 28, 2015
Because I disagree with the Majority’s conclusions with respect to both
issues raised by Appellant, I respectfully dissent and offer the following
analysis.
Appellant first argues that but for counsel’s patently incorrect advice,
he would have testified at trial. The PCRA court concluded that even if that
were true, the evidence against Appellant was so overwhelming that the
outcome of the trial would not have been different, and therefore it denied
PCRA relief without an evidentiary hearing. The Majority concludes that this
analysis is incorrect, as the appropriate outcome to consider under these
circumstances was the outcome of the Appellant’s decision not to testify,
which arguably may have been different had counsel provided sound advice.
* Retired Senior Judge assigned to the Superior Court.
J-S74005-14
However, the law is clear that the PCRA court is to look to the “entire record”
when considering the prejudicial effect of an error.
In Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011), the
appellant argued that trial counsel was ineffective in permitting a voir dire
for a child witness to occur in the jury’s presence. In fact, the rule is clear,
such competency hearings are to occur outside the presence of a jury.
Commonwealth v. Washington, 722 A.2d 643 (Pa. 1998) (holding that
voir dire examination of a child witness must be conducted in the absence of
the jury). The appellant argued that such error was prejudicial and entitled
him to a new trial. Our Supreme Court held:
Based on our review of the entire record, we cannot conclude
that there is a reasonable probability that the outcome of
[a]ppellant’s trial would have been different but for trial
counsel’s failure to object to the presence of the jury during the
voir dire of the children, which consisted of brief questioning
primarily regarding their schooling and their understanding of
the distinction between truth and a lie. Because Appellant has
not established prejudice, his claim of trial counsel
ineffectiveness fails[.]
Id. at 298-99 (citation omitted).
Based on this standard, because Appellant has not pled or proven that
the outcome of the trial would have been different, Appellant is not entitled
to an evidentiary hearing on this issue.
Appellant next argues that trial counsel was ineffective in failing to
object to improper remarks made in the Commonwealth’s opening and
closing statements. Most egregiously, the Commonwealth’s closing
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J-S74005-14
argument referenced Appellant’s motive as having been related to Appellant
owing the victim “drug money.” However, no evidence at trial supported a
claim that the disputed $1,300 debt was a drug debt. See Commonwealth
v. Correa, 644 A.2d 607, 613 (Pa. Super. 1995) (“It has repeatedly been
held that it is improper for a prosecuting attorney to make reference to
matters which are not in evidence or supported by inferences to be drawn
from the evidence.”). Accordingly, Appellant is entitled to an evidentiary
hearing to determine what reasonable basis, if any, counsel had in failing to
object to these prejudicial comments.
Thus, I am in agreement with the Majority that a remand for an
evidentiary hearing is necessary. I disagree as to why the hearing should be
held. I would order a hearing on the issue of whether counsel was
ineffective in failing to object to the allegedly improper statements of the
prosecutor, and the Majority would not.
The Majority orders a hearing on whether counsel was ineffective in
advising Appellant not to testify, and I would not so order.
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