Submitted November 17, 2014
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 DeFINO-NASTASI, J.
Dennis I. Turner, Philadelphia, for appellant.
Hugh J. Burns, Jr., Assistant District Attorney and James F. Gibbons, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.[*] OPINION BY BENDER, P.J.E. Judge Donohue joins this opinion. Judge Strassburger files a dissenting opinion.
Appellant, Terry Walker, appeals from the post-conviction court's July 8, 2013 order denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § § 9541-9546. After careful review, we vacate the PCRA court's order and remand for an evidentiary hearing.
The underlying facts of Appellant's case are as follows:
On the morning of January 20, 2005, Joseph Smith, the victim, told a friend that he was to meet Appellant later in the day because Appellant owed him $1,300. Later that afternoon, Nathaniel Robinson, who was driving by 70th Street and Woodland Avenue in Philadelphia[,] saw flashes of light, heard a loud bang from the minivan in front of him, and felt something hit his car. The mini-van stopped in the middle of the street. Mr. Robinson saw the driver, later identified as Appellant, get out of the van, look around, get back in, and make a U-turn. One of the windows of the van was blown out. Appellant stopped again, got out of the van, opened the sliding door, and " scuffled" around, causing the van to rock back and forth. Appellant drove the van to 69th and Woodland where he pulled in at a service station. Mr. Robinson then saw Appellant go to the passenger side, stuff something down the front of his pants, and walk away slowly until he reached the end of the service station, when he broke into a run, leaving a trail of blood behind him from a gunshot wound to the hand. Later, blood from the stains found at the scene was matched to Appellant's DNA. Mr. Robinson found Mr. Smith in the van, bleeding and bound in " flex cuffs" on each of his wrists. He was covered in blood and struggling to get up.
Mr. Robinson called 9-1-1. A fire department emergency crew arrived and rushed Mr. Smith in an ambulance to the Hospital of the University of Pennsylvania about thirty-five blocks away. On the way to the hospital, the paramedic monitored Mr. Smith's level of consciousness by asking him informational
questions. Mr. Smith gave the paramedic an incorrect age and the name " Phillip." He also responded eight or nine times " Terry Walker did it," or " Tell them that Terry Walker shot me." Mr. Smith lost consciousness a few blocks from the hospital and stopped answering questions. He died at 7:00 P.M., from nineteen gunshot wounds.
Commonwealth v. Walker, No. 910 EDA 2007, unpublished memorandum at 1-3 (Pa. Super. filed June 5, 2009).
Appellant was arrested and proceeded to a jury trial in March of 2007. At the close thereof, the jury convicted Appellant of first degree murder, robbery, and possessing an instrument of crime (PIC). He was sentenced to a term of life imprisonment for his murder conviction, plus consecutive terms of incarceration of 10 to 20 years, and 2 1/2 to 5 years, for his robbery and PIC offenses, respectively. Appellant filed a timely direct appeal and after this Court affirmed his judgment of sentence, our Supreme Court denied his subsequent petition for allowance of appeal. Commonwealth v. Walker, 981 A.2d 325 (Pa. Super. 2009) (unpublished memorandum), appeal denied, 603 Pa. 703, 983 A.2d 1249 (Pa. 2009).
On February 8, 2010, Appellant filed a timely pro se PCRA petition and counsel was appointed. Various continuances occurred over the ensuing years. On April 30, 2012, PCRA counsel filed a petition to withdraw and 'no-merit' letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (Pa. 1998), and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (Pa. Super. 1988). On June 5, 2012, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition. Appellant filed a pro se motion for an extension of time to respond to the Rule 907 notice, which the court granted. On August 17, 2012, Appellant filed a pro se response, framed as an amended PCRA petition. Therein, he raised sixteen issues, which the court directed PCRA counsel to review.
On December 10, 2012, PCRA counsel filed an amended PCRA petition on Appellant's behalf (which the court accepted) raising two of the 16 claims asserted in Appellant's pro se response to the court's Rule 907 notice. On April 23, 2013, the court issued a Rule 907 notice of its intent to dismiss Appellant's amended petition. Appellant did not file a response, and on July 8, 2013, the court issued an order dismissing his petition. Appellant filed a timely notice of appeal, and he also timely complied with the court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Thereafter, the PCRA court filed a Rule 1925(a) opinion.
Herein, Appellant presents two questions for our review:
1) Whether the PCRA court violated paragraph (1) of Pa.R.Crim.P. 907 by summarily dismissing [the] petition without [an] evidentiary hearing where there was a genuine issue of material fact as to whether trial counsel was ineffective for giving [Appellant] specific advice not to testify in his own behalf because the Commonwealth would impeach him with his prior criminal record, where [Appellant] did not have any crimen falsi convictions, which was so unreasonable as to violate his knowing and intelligent decision not to testify in his own behalf?
2) Whether the PCRA court violated paragraph (1) of Pa.R.Crim.P. 907 by summarily dismissing [the] petition without [an] evidentiary hearing where there was a genuine issue of material fact as to whether trial counsel was ineffective for failing to timely object to the
prosecutor's prejudicial remarks during opening and ...