Com. v. Outlaw, K. ( 2019 )


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  • J-S59022-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                   :       IN THE SUPERIOR COURT OF
    :            PENNSYLVANIA
    :
    v.                                 :
    :
    :
    KELVIN OUTLAW                                  :
    :
    Appellant                   :       No. 3172 EDA 2018
    Appeal from the PCRA Order Entered October 18, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0014716-2010
    BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
    MEMORANDUM BY NICHOLS, J.:                                  FILED DECEMBER 19, 2019
    Appellant Kelvin Outlaw appeals from the order denying his first, timely
    Post Conviction Relief Act1 (PCRA) petition. Appellant contends trial counsel
    was ineffective for advising him not to testify at trial. We affirm.
    A prior decision from this Court set forth the relevant factual history as
    follows:
    The instant case involved two criminal episodes in which Appellant
    was charged with, inter alia, improperly identifying himself as a
    police officer and frisking a citizen, and then, three days later,
    unlawfully entering a secure area of the 18th Police District in
    Philadelphia by employing a secure pass code available only to
    police personnel. These two incidents took place on September
    12, 2009 and September 15, 2009, respectively.
    *       *       *
    ____________________________________________
    1   42 Pa.C.S. §§ 9541-9546.
    J-S59022-19
    During the incident of September 15, 2009, Appellant was
    observed by police in the secure area referred to above, resulting
    in the [b]urglary charge against him. A subsequent search of
    Appellant’s car revealed the presence of several items of police
    attire, and other police paraphernalia, all of which had been stored
    in the secure area.
    Commonwealth v. Outlaw, 2090 EDA 2012, at 1-2 (Pa. Super. filed July 23,
    2013) (unpublished mem.) (record citation omitted) (quoting Trial Ct. Op.,
    11/28/12, at 2).
    The PCRA court’s opinion set forth the subsequent procedural history of
    this case as follows:
    On June 20, 2012, following a non-jury trial . . ., [Appellant] was
    convicted of [the charges related to the September 15, 2009
    incident, including] one count each of burglary (18 Pa.C.S. §
    3502), criminal trespass (18 Pa.C.S. § 3503), attempted theft by
    unlawful taking (18 Pa.C.S. § 901) and impersonating a public
    servant (18 Pa.C.S. § 4912).[fn1] That same day, the [trial c]ourt
    imposed consecutive terms of 3 to 6 years of incarceration for the
    burglary charge and 1 to 2 years of incarceration for the
    impersonating a public servant charge, for an aggregate sentence
    of four to eight years’ incarceration. [Appellant] filed a post-
    sentence motion, which the [trial c]ourt denied on June 26, 2012.
    [Appellant] was represented at trial and at sentencing by Todd
    Fiore, Esquire.
    [fn1] The case was tried jointly with charges [for the
    September 12, 2009 incident] set forth at docket number
    CP-XX-XXXXXXX-2011. [Appellant] was found not guilty of
    all charges on that docket. . . .
    On July 23, 2013, the Superior Court affirmed [Appellant’s]
    judgment of sentence, and the Supreme Court denied allocator on
    January 15, 2014. [Appellant] then filed a pro se petition under
    the [PCRA] on April 8, 2014. John P. Cotter, Esquire was
    appointed to represent [Appellant] on December 17, 2014. On
    November 12, 2015, Mr. Cotter filed an amended PCRA petition .
    . . raising the sole claim that trial counsel was ineffective in
    advising [Appellant] to not testify at trial. On May 4, 2017, after
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    J-S59022-19
    reviewing      [Appellant’s]    amended       petition   and     the
    Commonwealth’s motion to dismiss, [the PCRA c]ourt ruled that
    the claim set forth in [Appellant’s] petition was without merit. On
    that day, pursuant to Pa.R.Crim.P. 907, [the PCRA c]ourt issued
    notice of its intent to dismiss the petition without a hearing. . . .
    On July 13, 2017, [the PCRA c]ourt entered an order dismissing
    Appellant’s amended petition.
    [Appellant] subsequently appealed the [PCRA c]ourt’s decision to
    dismiss his amended petition. On June 8, 2018, the Superior
    Court vacated the dismissal order and remanded the case for an
    evidentiary hearing in order to give [Appellant] the opportunity to
    prove that counsel had no reasonable strategy or basis for
    advising [Appellant] not to testify. Pursuant to that directive, the
    [PCRA c]ourt held an evidentiary hearing on October 18, 2018.
    Both [Appellant] and his trial attorney, Todd Fiore, Esquire,
    testified. That same day, after issuing findings of fact and
    conclusions of law, the [PCRA c]ourt entered an order again
    dismissing [Appellant’s] amended petition.
    PCRA Ct. Op., 12/27/18, at 1-2 (record citations and some capitalization
    omitted).
    Appellant timely filed a notice of appeal and a Pa.R.A.P. 1925(b) concise
    statement. The trial court filed a responsive opinion on December 27, 2018,
    concluding that trial counsel provided credible testimony “and established that
    his advice to [Appellant] that he not testify was completely reasonable.” 
    Id. at 6.
    Appellant now raises one question for this Court’s review:
    Did the [PCRA] court err in denying Appellant a new trial when
    Appellant showed that trial defense counsel was ineffective for
    vitiating Appellant’s Constitutional right to testify in his own
    defense at trial?
    Appellant’s Brief at 2.
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    J-S59022-19
    Appellant contends that trial counsel advised him not to testify at trial,
    and trial counsel’s advice “was not reasonable because . . . only [Appellant’s]
    testimony could have established his innocence.” 
    Id. at 8.
    Appellant relies
    on his own PCRA hearing testimony that trial “counsel did not give [Appellant]
    any reasons for not testifying except for the fact that counsel had some
    agreement with the Commonwealth that did not appear on the record and did
    not make sense to [Appellant].” 
    Id. Appellant claims
    that when he pressed
    trial counsel for a specific reason why he should not testify, trial counsel
    merely “said he did not think it was a good idea. . . .” 
    Id. Appellant acknowledges
    trial counsel’s PCRA hearing testimony “that he
    recommended that [Appellant] not testify because of his numerous crimen
    falsi convictions.”   
    Id. Appellant insists,
    however, that “[t]hree of these
    convictions were allowed as evidence against [Appellant] at trial,” thereby
    rendering trial counsel’s advice “so unreasonable that it vitiated [Appellant’s]
    knowing and intelligent decision not to testify at trial.” 
    Id. at 8-9.
    Based
    upon the foregoing, Appellant maintains that this Court must grant relief in
    the form of a new trial. 
    Id. at 10.
    Our review of the denial of a PCRA petition is limited to the examination
    of “whether the PCRA court’s determination is supported by the record and
    free of legal error.”   Commonwealth v. Miller, 
    102 A.3d 988
    , 992 (Pa.
    Super. 2014) (quotation marks and citation omitted).           “The PCRA court’s
    findings will not be disturbed unless there is no support for the findings in the
    certified record.”    Commonwealth v. Lawson, 
    90 A.3d 1
    , 4 (Pa. Super.
    -4-
    J-S59022-19
    2014) (citation omitted). We review “the PCRA court’s legal conclusions de
    novo.” See 
    Miller, 102 A.3d at 992
    (citation omitted).
    We    presume     that   the    petitioner’s   counsel   was    effective.
    Commonwealth v. Williams, 
    732 A.2d 1167
    , 1177 (Pa. 1999). To establish
    a claim of ineffectiveness, a petitioner “must show, by a preponderance of the
    evidence, ineffective 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.” Commonwealth
    v. Turetsky, 
    925 A.2d 876
    , 880 (Pa. Super. 2007) (citation omitted).
    A petitioner must establish (1) that the underlying claim has arguable
    merit; (2) that counsel lacked a reasonable basis for his action or inaction;
    and (3) but for the act or omission in question, the outcome of the proceedings
    would have been different. Commonwealth v. Washington, 
    927 A.2d 586
    ,
    594 (Pa. 2007). “A claim of ineffectiveness may be denied by a showing that
    the petitioner’s evidence fails to meet any of these prongs.”      
    Id. (citation omitted).
    “The decision of whether or not to testify on one’s own behalf is
    ultimately to be made by the defendant after full consultation with counsel.”
    Commonwealth v. Michaud, 
    70 A.3d 862
    , 869 (Pa. Super. 2013) (citation
    omitted).
    In order to sustain a claim that counsel was ineffective for failing
    to advise the appellant of his rights in this regard, the appellant
    must demonstrate either that counsel interfered with his right to
    testify, or that counsel gave specific advice so unreasonable as to
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    J-S59022-19
    vitiate a knowing and intelligent decision to testify on his own
    behalf.
    
    Id. (citation omitted).
    Instantly, Appellant and trial counsel both testified at the PCRA hearing
    regarding the circumstances surrounding Appellant’s decision not to testify at
    trial. Appellant testified that he discussed the matter with trial counsel on
    multiple occasions, and he always expressed his desire to testify at trial. See
    N.T. PCRA Hr’g, 10/18/18, at 10, 13. One of Appellant’s conversations with
    trial counsel occurred on June 20, 2012, during a recess at trial. 
    Id. at 12-
    13. Appellant described the conversation as follows:
    [PCRA Counsel:] What was the substance of your discussion as far
    as what you wanted to do?
    [Appellant:] Well, I told [trial counsel] that I wanted to testify,
    and he said, as we explained before trial and we agreed to take a
    bench trial, the Commonwealth agreed to withdraw or ungrade
    charges for me to take a bench trial on the assumption of me not
    taking the stand. And I didn’t understand that, he didn’t give me
    an explanation, and we went back out, sat back down at the table.
    [PCRA Counsel:] What did he tell you about whether you should
    testify or not? What was his advice?
    [Appellant:] He said it’s not a good idea.
    *    *    *
    THE COURT: Did you just say that [trial counsel] told you there
    was an agreement that was unstated, that you would not testify
    in exchange for charges being dropped?
    [Appellant:] Yes. Before trial, [trial counsel] came in the back and
    he said the Commonwealth agreed to dismiss charges on the
    burglary case and the robbery case[.]
    -6-
    J-S59022-19
    
    Id. at 13-14.
    The PCRA judge, who also served as the trial judge, interjected
    again, emphasizing that no one had informed him about an agreement to
    withdraw certain charges in exchange for Appellant’s decision to proceed to a
    bench trial and not to testify. 
    Id. at 14-15.
    Following Appellant’s testimony, trial counsel denied the existence of
    any agreement with the Commonwealth.                   
    Id. at 37.
      Nevertheless, trial
    counsel confirmed that he had advised Appellant not to testify at trial. 
    Id. at 34.
    Trial counsel testified regarding the basis for his advice as follows:
    [Trial Counsel:] Well, there were two reasons why I didn’t think it
    was in his best interest to testify. The first was, there was a litany
    of crimen falsi cases, convictions that were not coming in as other
    acts. There were cases that were coming in as other acts because
    of the nature of the charges.[2] But there were other cases,
    particularly several cases from Delaware County, that were crimen
    falsi convictions, that I did not want His Honor to know about
    during the trial, absolutely.
    [PCRA Counsel:] Any other reason that you didn’t want him to
    testify?
    [Trial Counsel:] Yes, yes, absolutely. I was convinced, and I
    believe His Honor was as well, that my client was not guilty of the
    second case [relating to the separate incident on September 12,
    2009].
    *       *   *
    And even with the alibi witnesses, the victim in that case pointed
    out my client and said he was the person that victimized her. So
    ____________________________________________
    2 “During pretrial motions, the Commonwealth identified sixteen incidents
    during which Appellant impersonated a police officer; three were in person
    and thirteen were on the telephone. At trial, the Commonwealth proffered
    testimony detailing the three in-person impersonations.” Outlaw, 2090 EDA
    2012, at 5-6 (record citation omitted).
    -7-
    J-S59022-19
    even with alibi witnesses, it’s never a guarantee. And I didn’t
    want to open my client up to cross-examination on that case
    because that case involved a sexual component and a robbery,
    and if my client would have been found guilty of that case, he
    would have probably still been reporting as a sex offender.
    And with all of those other crimen falsi cases that were not coming
    in, if he would have testified and His Honor didn’t believe him,
    then I feel, I felt that there was a possibility that His Honor could
    have, even with alibi witnesses, could have found my client guilty
    based on credibility and based on the prior crimen falsi
    convictions.
    
    Id. at 34-35.
    When asked about whether he provided Appellant with a detailed
    explanation about the reasons why he should not testify, trial counsel stated:
    I don’t have a specific recollection. I probably had over ten
    thousand cases in my career. And since then, I probably tried
    thousands. But I was well-trained as a former public defender,
    and I would have never not told my client why I didn’t want him
    to testify. I don’t believe I’ve ever not explained my reasoning for
    that since it’s an absolute right. I would have definitely explained
    to him that I didn’t want him to open himself up for those other
    cases.
    
    Id. at 35-36.
    Significantly, the PCRA court found trial counsel presented credible
    testimony to establish that his advice to Appellant was reasonable. See PCRA
    Ct. Op. at 6. We are bound by the PCRA court’s credibility determinations.
    See Commonwealth v. Montalvo, 
    205 A.3d 274
    , 290 (Pa. 2019) (stating
    “that a PCRA court’s credibility findings are to be afforded great deference and
    where, as here, they are supported by the record, such determinations are
    binding on an appellate court”). On this record, Appellant failed to establish
    that trial counsel was ineffective in his counseling of Appellant on his right to
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    J-S59022-19
    testify. See 
    Miller, 102 A.3d at 992
    ; 
    Michaud, 70 A.3d at 869
    . Accordingly,
    Appellant is not entitled to relief.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/19/19
    -9-
    

Document Info

Docket Number: 3172 EDA 2018

Filed Date: 12/19/2019

Precedential Status: Precedential

Modified Date: 12/19/2019