Email or Call (215) 564-0644

    PA PCRA Petition – Recent Pennsylvania Court Decision Grants Defendant an Evidentiary Hearing Based on Ineffective Assistance of Counsel Claim

    As we discussed in previous PA Post Conviction Relief Act (PCRA) legal articles, an evidentiary hearing is often requested when the issue in a PCRA petition is ineffective assistance of counsel, i.e., counsel’s inexperience, failure to call crucial witnesses, failure to advise defendant of offers, etc.

    Defendants convicted of murder, capital murder, robbery, etc., at trial in Philadelphia can request an evidentiary hearing in a PCRA petition; however, the defendant does not have an absolute right to a hearing.

    Related: Pennsylvania PCRA Petition and Request for an Evidentiary Hearing

    The court may grant an evidentiary hearing for ineffective assistance of counsel only under certain circumstances.

    In a recent a PA Superior Court opinion (filed in January 2015), the court granted the defendant’s request for an evidentiary hearing based on the claim of ineffective assistance of counsel. See Commonwealth of Pennsylvania v. Walker.

    Facts of the Case

    The victim in this case told a friend he had to meet the defendant because the defendant owed him money. Later that day, an eyewitness heard a loud bang from the minivan in front of him. The witness testified that he saw the driver (later identified as the defendant) get out of the minivan and open the side door. The driver then “scuffed” around, causing the van to rock back and forth. The driver then drove the minivan to a nearby service station, got out of the minivan and broke into a run, leaving a trail of blood behind him from a gunshot wound to his hand.

    The victim was transported to Hospital of the University of Pennsylvania. In the ambulance, the victim told the paramedics that Terry Walker (defendant) shot him several times. The victim then lost consciousness and later died in the hospital.

    At trial, the defendant was convicted of first degree murder, robbery and possessing an instrument of crime. He was sentenced to a term of life imprisonment for the murder conviction, plus consecutive terms of incarceration for his other convictions.

    Thereafter, he filed a direct appeal, which was denied. The defendant then filed a pro se PCRA petition, and PCRA counsel was appointed. The lower court dismissed the defendant’s PCRA petition, and the defendant appealed to the Superior Court of Pennsylvania.

    Related: PA Post Conviction Relief Act Petition – How to Prove Ineffective Assistance of Counsel Claims

    Defendant’s Appeal to the PA Superior Court

    In his appeal, one of defendant’s claim was that the lower court dismissed his PCRA petition without an evidentiary hearing where there was a genuine issue of material fact as to whether his trial counsel was ineffective. Defendant claimed that trial counsel told him not to take the stand because the Commonwealth would impeach him with his prior criminal record. A defendant can only be impeached by his criminal record if he had any crimen falsi convictions (conviction for lying or other fraudulent conduct). However, the defendant did not have any prior crimen falsi convictions. Therefore, if he had taken the stand, he could not have been impeached with his criminal record.

    The defendant believed that he received ineffective assistance of counsel because his counsel told him not to testify at trial. The defendant further alleged that counsel had no reasonable basis for misinforming him that he should not take the stand. He was further prejudiced because there was a reasonable probability that the result would have been different.

    Pursuant to PA criminal law, when a defendant claims that his counsel was ineffective, the court looks to see whether the defendant satisfied a 3 prong test. In this particular case, the PCRA court rejected the defendant’s ineffective claim based on only 1 prong, i.e., the defendant failed to prove that he was prejudiced in that the outcome of the trial would have been different had he taken the stand. The court did not address the other 2 prongs, which are:

    1. the claim of ineffectiveness of counsel has arguable merit; and
    2. defense counsel had no reasonable basis for the act or omission in question.

    In addressing the prong that the lower court applied, the Superior Court stated that the PCRA court applied the wrong prejudice standard. The could held,

    The 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.

    Because the lower court did not apply the other 2 prongs of the ineffective of counsel test, the court could not determine whether defendant’s claim had arguable merit. The court then remanded the petition for a hearing on the ineffectiveness claim.

    PCRA cases are probably one of the most complex criminal appellate cases. It is crucial that you seek advice from an experienced Philadelphia criminal defense lawyer who specializes in PCRA petitions.

    FREE Consultations- Philadelphia Criminal Lawyer PCRA & Appeals

    If you or a loved one is considering filing a PCRA petition after a murder conviction in the Philadelphia area, please contact our office for a FREE case evaluation. Our criminal defense lawyers are experienced trial and appellate lawyers. (215) 564-0644

    Disclaimer: This website does not create any attorney-client relationship or provide legal advice. Our lawyers provide legal advice only after accepting a case. It is imperative that any action taken is done on advice of counsel. Read full disclaimer below.


    David S. Nenner

    "Top Rated Criminal Defense Lawyer"

    MURDER, Att. Murder CHARGES – Negotiated Significantly Lower prison sentence (Feb. 2022, PHILA)

    Mr. Anderson faced murder and attempted murder charges after an incident in Northeast Philadelphia involving the shooting death of Anderson’s sister’s boyfriend and the boyfriend’s roommate who was shot 5 times and survived. The decedent had previously beaten the...


    The Commonwealth alleged that Mr. Shelton shot and seriously injured a male in a bar in North Philadelphia called Circles. There was video of the shooting which happened outside the bar. However, Mr. Nenner presented witnesses who testified that the person in the bar...


    Mr. Nenner's client was charged with multiple crimes (murder, conspiracy, aggravated assault, robbery, etc.) after a shooting death occurred at a gambling house in North Philadelphia. At trial, Mr. Nenner successfully presented a self-defense argument and convinced...


    Mr. Nenner’s client was charged with murder and gun charges in Philadelphia. The client was accused of shooting and killing another male on Arch Street near the 5600 block of Ithan Street in Philadelphia. The jury returned a verdict of not guilty after deliberating...

    Drug Possession Case – Motion to Suppress Granted

    Mr. Nenner presented evidence that to show that the traffic stop was a pretextual stop. The officer had no reason to pull the car over. The judge agreed and suppressed the evidence. As a result, the prosecution withdrew the charges.

    Sentencing for 1st Degree Murder in PA

    In this article below we discuss sentencing for 1st degree murder cases in Pennsylvania. In later articles, we will discuss sentencing for 2nd and 3rd degree murder cases. If you or a loved one is facing murder charges in Philadelphia or the surrounding counties,...

    Philadelphia Criminal Trials – Evidence Pointing to Another Perpetrator in Drug Possession or Drug Manufacture Cases

    In criminal trials in Philadelphia, one pretty common defense tactic is pointing the finger at another person at trial. This can raise enough doubt to result in a not guilty verdict by the judge or jury that the defendant was not the perpetrator of the crime. Here’s...

    Philadelphia Murder & Gun Possession Cases Increasing in 2021 – A Look at Common Charges & Defenses

    A look at PA criminal law for Murder (1st, 2nd, 3rd Degree), Aggravated Assault, Robbery, Possession of a Firearm, Carrying a Firearm Without a License, Carrying a Firearm in Philadelphia (misdemeanor).

    Pennsylvania Murder Charges, Deceased Person’s Statements Used to Prove Guilt

    Defense Trial Strategies – Excluding Statements That Accuse the Defendant Prosecutors often look to a deceased individual’s statements made prior to a murder to show that the defendant is guilty. These statements may point to a history of violence between the deceased...

    Pennsylvania (State) Drug Charges, Dog Sniffs & Constitutional Law

    Federal and Pennsylvania state courts treat narcotics dog searches differently. So different that the same scenario could result in different outcomes in federal versus state court. For example, a Philadelphia resident is pulled over for speeding. During the traffic...