Com. v. Jenkins, T.
Opinion
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
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v. :
:
:
TARIQ D. JENKINS :
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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.
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
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
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.
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).
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