J-S16018-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TROY WALKER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 151⁄2 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