J-S74005-14

* Retired Senior Judge assigned to the Superior Court.

2015 PA Super 17

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

v.

TERRY WALKER, 

Appellant

 

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

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. 
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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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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.