Com. v. Villines, J. ( 2021 )

J-A21015-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
JERMAINE VILLINES :
:
Appellant :
: No. 1947 EDA 2020
Appeal from the PCRA Order Entered October 20, 2020,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005660-2010.
BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 8, 2021
Jermaine Villines appeals from the order denying his first timely petition
filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§
9541-46. We affirm.
The PCRA court summarized the pertinent facts and partial procedural
history as follows:
On September 17, 2009, Anwar Conyers (“Decedent”)
was shot and killed in the city and county of Philadelphia.
On October 15, 2009, [Villines] was arrested and charged
with murder generally, conspiracy to commit murder,
various firearms charges, and [possession of an instrument
of crime].
A jury trial began on January 18, 2011. During the
course of the trial, it was established that [Villines] was at
his house along with his cousin, William Villines (“Co-
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Defendant”). Testimony was provided that [Villines] got
into a verbal argument with Decedent over money. This
argument occurred right outside of [Villines’] house and was
witnessed by his Co-Defendant. Upon witnessing this
argument, Co-Defendant retrieved a firearm and went
outside and followed Decedent as he walked towards his
vehicle. Decedent then observed Co-Defendant’s firearm
and turned around with his arms raised saying “whoa, whoa,
hold on.” Co-Defendant asked [Villines,] “Hit him?” to which
[Villines] replied[,] “Green Light. Hit him.” Co-Defendant
then shot Decedent and after he fell to the ground fired a
total of five or six more shots at him. Decedent was struck
three times and died as a result of the gunshot wounds. Co-
Defendant made a statement to detectives after his arrest,
generally acknowledging the aforementioned facts and also
confirmed that Decedent was unarmed. However, [Co-
Defendant] indicated that he believed Decedent was going
to his car to retrieve a firearm.
On January 24, 2011, [Villines] was found guilty of
third[-]degree murder and criminal conspiracy to commit
murder. On March 17, 2011, he was sentenced to [an
aggregate term of twenty to forty years of imprisonment].
On March [24], 2011, [Villines] filed timely post-sentence
motions, which were denied on July 22, 2011. On August
1, 2011, [Villines] filed a timely notice of appeal to the
Superior Court. On May 28, 2013 the Superior Court
affirmed the judgment of sentence. On May 29, 2013,
[Villines] filed a petition for allowance of appeal with the
Supreme Court of Pennsylvania. The aforementioned
petition was denied on October 29, 2013.
PCRA Court Opinion, 5/14/21, at 1-2 (excess capitalization omitted).
Villines filed a timely PCRA petition on April 29, 2014. Ultimately, the
PCRA court denied the petition and Villines appealed. This Court remanded
on the single issue of whether Villines waived his right to testify based upon
trial counsel’s advice that his prior conviction for escape was crimen falsi. See
Commonwealth v. Villines, 221 A.3d 292 (Pa. Super. 2019) (non-
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precedential memorandum). An evidentiary hearing was held on February 11,
2020, where both trial counsel and Villines testified. By order entered October
20, 2020, the PCRA court denied Villines’ PCRA petition. This timely appeal
followed. Both Villines and the PCRA court have complied with Pa.R.A.P. 1925.
Villines raised the following issue on appeal:
1. Did the PCRA court err in dismissing [Villines’] PCRA
petition following a hearing because trial counsel was
ineffective for informing [Villines] that he should not
testify because if he testified, he would be impeached
with a prior escape conviction and this caused prejudice
to [Villines] and there was nothing in the oral colloquy to
indicate that [Villines] was informed of his right to testify
along with the likelihood that impeachment based upon
the prior escape conviction would not occur?
Villines’ Brief at 4 (excess capitalization omitted).
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
Villines’ issue challenges the effectiveness of trial counsel. To obtain
relief under the PCRA premised on a claim that counsel was ineffective, a
petitioner must establish by a preponderance of the evidence that counsel’s
ineffectiveness so undermined the truth determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth
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v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.This requires the petitioner to demonstrate that: (1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) the petitioner was prejudiced by counsel's act or
omission. Id. at 533. A failure to satisfy any prong of the test for
ineffectiveness will require rejection of the claim. Commonwealth v. Martin,
5 A.3d 177, 183 (Pa. 2010).
Villines challenges the advice trial counsel gave him regarding the right
to testify at trial. As this Court has summarized:
[The decision to testify on one’s own behalf] is ultimately to
be made by the accused after full consultation with counsel.
In order to support a claim that counsel was ineffective for
failing to call the appellant to the stand, the appellant must
demonstrate either that (1) counsel interfered with his
client’s freedom to testify, or (2) counsel gave specific advice
so unreasonable as to vitiate a knowing and intelligent
decision by the client not to testify in his own behalf. Counsel
is not ineffective where counsel’s decision to not call the
defendant was reasonable.
Commonwealth v. O’Bidos, 849 A.2d 243, 250 (Pa. Super. 2004) (citation
omitted).
Here, the PCRA court concluded that Villines failed to meet this burden.
The PCRA court first concluded that the trial record neither supported “the
allegation that trial counsel informed [Villines] that he should not testify,” nor
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“the allegation that trial counsel informed [him] he could be impeached” given
his prior conviction for escape. PCRA Court Opinion, 5/14/21, at 6.
To support its conclusion, the court cited in detail the exchange at trial
between the court, trial counsel, the prosecutor, and Villines regarding trial
counsel’s advice to Villines regarding his decision to testify considering his
prior criminal record. See PCRA Court Opinion, 5/14/21, 6-8.1 The court then
noted Villines’ request to speak with trial counsel, and that the trial court took
a luncheon recess.
After reconvening, the following exchange between the trial court and
Villines occurred:
THE COURT: Good afternoon, [Villines], if you would
stand back up. You’ve had time now to discuss it with your
attorney with the understanding that it is a very slim and
rare possibility that your prior convictions would come in
against you in any way. So knowing and understanding all
of that, do your wish to testify?
[VILLINES]: No, ma’am.
THE COURT: Alright. So who made this decision,
[Villines]?
[VILLINES]: I have.
THE COURT: Did anybody pressure you or force you or
threaten you to go ahead and not testify?
[VILLINES]: Not at all.
____________________________________________
1In his prior appeal, this Court reproduced this testimony. See Villines,
supra.
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THE COURT: Did anybody promise you anything now if
you don’t testify?
[VILLINES]: No.
THE COURT: Do you have any questions for me?
[VILLINES]: No.
THE COURT: Alright. Then I am making the finding that
you have knowingly, intelligently and voluntarily made the
decision not to testify. You can be seated.
PCRA Court Opinion, 5/14/21, at 8 (citing N.T., 1/21/11, at 122-23) (excess
punctuation omitted).
The PCRA court then contrasted the above exchange with the following
testimony from Villines at the PCRA hearing:
[PCRA COUNSEL]: And what did [trial counsel] tell you,
if anything, about escape being a crime of dishonesty?
[VILLINES]: He didn’t tell me this before we got to trial.
We didn’t have that conversation before we went to trial.
That never happened. When we got to trial, it was me, my
[Co-Defendant], his lawyer[,] [trial counsel], that’s when all
that came up. And then me and [trial counsel] talked about
it alone. And that was it. We never had a conversation
before that. He told me I could be impeached. So I was
lost, like, because I wanted to testify. I went through the
trial. But I don’t have no choice now. I feel like my hand
was forced.
PCRA Court Opinion, 5/14/21, at 9 (citing N.T., 2/11/20, at 52) (excess
punctuation omitted).2
____________________________________________
2 We note at the PCRA hearing, Villines later testified
that trial counsel told
him his prior escape conviction was a “criminal [sic] falsi charge.” N.T.,
2/11/20, at 72.
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Comparing the Villines’ testimony at each proceeding, as a matter of
credibility, the PCRA court found the record to refute Villines’ ineffectiveness
claim. As the court explained in detail:
Nowhere in the notes [of testimony] does trial counsel
state that he advised [Villines] not to testify. What the
record does show is that trial counsel informed [Villines]
that, should he testify and say certain things, his prior
convictions could possibly come in against him. It should
be noted that the colloquy conducted by [the trial court]
undercuts much of [Villines’] current claim. As per the [trial
transcript], [Villines] told [the trial court] that no one forced
him not to testify during his trial. [Villines] said the exact
opposite during the [PCRA hearing], more than nine years
later. Notable in [Villines’] testimony at the evidentiary
hearing is, despite now claiming that he felt forced into not
testifying, he stated “He told me I could be impeached,” a
statement that is somewhat consistent with the trial record
and [trial counsel’s] testimony during the evidentiary
hearing. Although [trial counsel] never said [Villines] could
be impeached, he did say that [Villines] might open the door
to his convictions coming in against him. As was discussed
on the trial record, [trial counsel] mentioned that if [Villines]
took the stand and testified that his prior convictions might
enter-in depending on what he says, for example, his prior
weapon conviction coming in if [Villines] testified that he
never had a firearm.
It must also be noted that the [trial transcripts] show
discussion about how it was very unlikely that [Villines’]
prior convictions could come in against him. [The trial
court] stated that if [trial counsel] advised [Villines]
properly that [Villines] would not testify in such a way that
would open the door to his convictions being used. After
being given the opportunity to confer with [trial counsel]
once more, [Villines] again confirmed that he did not wish
to testify, that [he] himself made this decision, and that
nobody pressured him or promised him anything in
exchange for not testifying. At the evidentiary hearing,
[Villines] testified that [his] prior convictions might be used
to impeach him. While not entirely accurate, due to [trial
counsel] only saying only that these convictions might come
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in based on what [Villines] said at trial, notably missing is
[Villines] saying that [trial counsel] called these convictions
crimen falsi.
***
Regarding witness credibility, this court found that [trial
counsel] testified credibly during the [PCRA] hearing. His
testimony on [that day] aligned with what he said at trial [],
namely that [Villines] had no crimen falsi and that his
escape [conviction] might come in depending on how
[Villines] testified. [Villines’] credibility also played a role,
and due to the fact that, as stated supra, [the trial court]
performed a colloquy of [Villines] and he stated that no one
was forcing him not to testify, it undercuts his credibility
now that he claims he was forced to not testify. Further,
even if this court fully believed [Villines’] testimony at the
[PCRA] hearing, [Villines’ PCRA] hearing testimony failed to
address certain inconsistencies[.] Considering that [trial
counsel] stated in open court at [Villines’] trial that [Villines]
had no crimen falsi, combined with [the trial court]
explaining to [Villines] that it was highly unlikely that his
convictions could be used against him, it stands to reason
that [trial counsel] never once told [Villines] that he had any
crimen falsi whatsoever.
PCRA Court Opinion, 5/14/21, at 9-12 (paragraph break added; citations and
excess capitalization omitted).
As stated above, the PCRA court specifically found trial counsel’s
testimony to be more credible than that of Villines. As a matter of credibility,
the PCRA court believed trial counsel’s version of the contested facts. We
cannot disturb this determination. See Commonwealth v. Harmon, 738
A.2d 1023, 1025 (Pa. Super. 1999) (explaining that when a PCRA court’s
determination of credibility is supported by the record, it cannot be disturbed
on appeal); see also Commonwealth v Todd, 820 A.2d 707, 712 (Pa.
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Super. 2003) (explaining that this Court “must defer to the credibility
determinations made by the [PCRA] court that observed a witness’s demeanor
first hand”).
Villines’ claim to the contrary is unavailing. As noted by the PCRA court,
the record refutes Villines’ claim that “[t]here was nothing in the oral colloquy
to indicate that [he] was informed of his right to testify along with the
likelihood that impeachment based upon the prior [e]scape conviction would
not occur.” Villines’ Brief at 8.
Villines claimed that there was some confusion at trial regarding whether
his escape constituted a crimen falsi offense. However, actions of the
prosecutor or the trial court are not relevant in assessing whether trial counsel
was ineffective. Even were we to accept Villines’ reading of the colloquy, and
his claim of “confusion” created during the colloquy, the fact remains that the
PCRA court credited trial counsel’s testimony at the PCRA hearing that he had
repeatedly told Villines that he had no prior crimen falsi offenses. See Todd,
820 A.2d at 712 (upholding the appellant’s waiver of his right to testify based
upon counsel’s testimony).
Upon review, the PCRA court’s conclusion that trial counsel never
informed Villines that escape constituted a crimen falsi offense is reinforced
by the following exchange between PCRA counsel and trial counsel at the PCRA
hearing:
[TRIAL COUNSEL]: I can’t help that. If [Villines] chose
to take the advice of the [prosecutor], and the [trial court’s]
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opinion about certain things, I don’t have any control over
that. I told [Villines] over and over and over again that he
had no crimes of dishonesty. That there was no way that
he could be impeached in terms of his credibility. [Villines]
ran the risk that the door would be opened if he testified.
[PCRA COUNSEL]: Continuing on, did you specifically
informed [sic] [Villines] that the [trial court] was incorrect,
if [it] stated that escape was a crime of dishonesty?
[TRIAL COUNSEL]: I don’t criticize judges in front of
defendants. I told [Villines] over and over again that he had
no crimen falsi crimes of dishonesty. But that he ran the
risk of, when he testified, that the door would be open.
[PCRA COUNSEL]: Did you encourage [Villines] not to
testify?
[TRIAL COUNSEL]: I never encouraged him not to
testify. I may give him advice about whether it’s a wise
thing to do. But I never encouraged him one way or the
other.
[PCRA COUNSEL]: And what was the advice, in this case,
if you remember?
[TRIAL COUNSEL]: I didn’t see anything that would be
added by [Villines] testifying. The argument that I made to
the jury is that [Villines’] encouragement only went as far
as punching the [Decedent]. It didn’t go towards shooting
the [Decedent]. That seemed like a sound and good
argument.
Id. (citing N.T. 2/11/20, at 125-26).
The above exchange refutes Villines’ claim that, even after the
evidentiary hearing, “[t]rial counsel’s position remained confusing and
incorrect.” Villines’ Brief at 16. Once again, the trial court’s credibility
determination is supported by the record and therefore binding on this Court.
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In sum, our review of the record supports the PCRA court’s conclusion
that Villines’ ineffectiveness claim lacks arguable merit, and we need not
address the second and third prong of the ineffectiveness test. Johnson,
supra. We therefore affirm its order denying Villines post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2021
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