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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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