Com. v. Okorie, S.

J-S26036-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAMUEL OKORIE :
:
Appellant : No. 1790 WDA 2019
Appeal from the PCRA Order Entered November 7, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012588-2014
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 07, 2020
Samuel Okorie (Okorie) appeals from the order entered in the Court of
Common Pleas of Allegheny County (PCRA court) dismissing his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
We affirm.
I.
This case stems from Okorie’s bench conviction of two counts of rape
and one count each of kidnapping, involuntary deviant sexual intercourse,
(IDSI) and robbery1 for his September 2014 rape of the then twenty-two year
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3121(a)(1), 2901(a)(1), 3123 and 3701.
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old victim, C.W. We recount the relevant factual and procedural background
below.
A.
On September 6, 2014, at about 2:00 a.m., Okorie offered C.W. a ride
home from the Southside section of the City of Pittsburgh where C.W. was
celebrating her friend’s birthday at a bar. C.W. initially declined Okorie’s offer
and left in a car with her friends. She became angry with her friends, exited
the vehicle and while walking along the roadside, accepted a ride from Okorie,
who was riding as a passenger in a car behind her.
Instead of following C.W.’s directions to drive her home, the driver of
the car pulled over to the side of the road and Okorie pulled C.W. out of the
vehicle. Okorie raped C.W. on the ground in a parking lot and then forced her
into his residence where he had non-consensual vaginal and anal intercourse
with her. C.W. fled Okorie’s residence at about 6:00 a.m. and pounded on
the door of a neighbor’s home. She was barefoot, had no purse and was
shaking and crying uncontrollably and yelling that she had been raped. The
neighbor called 911 and C.W. directed police to Okorie’s residence and
identified him as the perpetrator. Police recovered C.W.’s cell telephone and
her ripped underwear during their search of Okorie’s bedroom. C.W. went to
the hospital and was extremely emotional, verging on hysteria. Medical
personnel conducted a rape kit examination that showed Okorie’s semen and
DNA were present in her vaginal cervix and genital and rectal areas.
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Okorie proceeded to a two-day bench trial on May 12, 2015, where he
expressly waived his right to a jury trial. The court then conducted the
following colloquy:
The Court: Mr. Okorie, you have been sworn and I understand
that you are not going to take the stand to testify, is that correct?
The Defendant: Yes, Your Honor.
The Court: And do you understand that you have an absolute right
to take the stand and to testify?
The Defendant: Yes, Your Honor.
The Court: And if you do that, you can also present character
witnesses to testify to the good character that you exhibit in the
community?
The Defendant: Yes, Your Honor.
The Court: And you are choosing not to take the stand. Has
anybody promised you anything or threatened you in any
way that may have influenced your decision?
The Defendant: No, Your Honor.
(N.T. Trial, 5/13/15, at 115-116) (emphasis added).
The court convicted Okorie of the above-listed offenses and sentenced
him to an aggregate term of not less than twenty nor more than forty years’
incarceration. This Court affirmed his judgment of sentence on November 8,
2016, and Okorie did not seek further direct review. He filed a timely PCRA
petition on March 21, 2017, which the PCRA court denied without a hearing.
On appeal, this Court vacated the PCRA court’s order denying the petition and
remanded the case for an evidentiary hearing on Okorie’s claim of ineffective
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assistance of trial counsel. Specifically, this Court found: a hearing was
necessary where Okorie had consistently argued that his trial counsel, Art
Ettinger, Esq., (Attorney Ettinger) was ineffective for giving deficient advice
regarding his right to testify on his own behalf at trial; and the PCRA court
erred by accepting PCRA counsel’s account of trial counsel’s proffered strategy
without holding a hearing to assess credibility. (See Commonwealth v.
Okorie, 2018 WL 3358618 (Pa. Super. filed July 10, 2018)).
B.
The PCRA court held a hearing on the limited issue of trial counsel’s
ineffectiveness in advising Okorie not to testify at his trial, at which Okorie
and Attorney Ettinger appeared. Their testimony was consistent in that it
showed Okorie insisted on proceeding to a bench trial instead of a jury trial,
which was directly contrary to Attorney Ettinger’s advice. Okorie averred that
he expressed to Attorney Ettinger that he wanted to testify in his defense at
trial, but he did not do so because Attorney Ettinger advised against it. (See
PCRA Hearing, 8/06/19, at 10-11). He also stated that he decided not to
testify in part because Attorney Ettinger told him that his case was a “win/win”
and he understood that to mean he “won the case, so there was no need for
[him] to testify.” (Id. at 13-14).
Attorney Ettinger testified that he has been a public defender since 2002
and that he had strongly advised Okorie to proceed with a jury trial instead of
a bench trial, primarily because “the Judge he was in front of is not a Judge
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known for finding people not guilty on charges of this nature.” (Id. at 17-18).
Once Attorney Ettinger realized that he was unable to convince Okorie to go
to a jury trial, he had many conversations with his client about whether to
testify and went through practice runs of his direct and cross-examination.
(See id. at 18). Attorney Ettinger explained that he strongly advised Okorie
not to testify when the Commonwealth introduced into evidence an
exculpatory statement that Okorie had made to police following his arrest in
which he averred that he had consensual sex with C.W. (See id. at 20).2
Attorney Ettinger testified that although he may have used the phrase
“win/win” in connection with Okorie’s exculpatory statement to police, he used
it in the context of introducing Okorie’s version of events into evidence without
him actually testifying. (See id. at 21). Counsel explained that he was
surprised when the trial court stated that it would not give the same weight
to Okorie’s statement as it did to C.W.’s testimony because it was not subject
to cross-examination, but that the case had gone well overall because of
inconsistencies in C.W.’s testimony and he was optimistic that the court would
rule in Okorie’s favor. (See id. at 17, 21, 24-26).
____________________________________________
2 Specifically, Detective Bryan Sellers of the City of Pittsburgh Police testified
that Okorie recounted during an interview that he had consensual vaginal and
anal sex with C.W. He also represented that he did not know C.W.’s name
and spontaneously volunteered that he gently removed her underwear.
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The Commonwealth then elicited the following testimony from Attorney
Ettinger:
Q. Did you at any time promise and assure, as Mr. Okorie
indicates, that if he did not testify, he would win?
A. No.
Q. And you testified that you advised your client to go to jury trial,
but he decided on his own that he wanted to go to nonjury;
correct? And that’s, in fact, how this case proceeded?
A. Correct.
Q. So you would agree with me, in that instance, he was capable
of making a decision contrary to your advice? In that instance, as
it pertains to going jury or nonjury?
* * *
Q . . . I’ll phrase it differently. He decided to do something
contrary to your advice in that regard as it related to nonjury
versus jury trial?
A. He did. I strongly discouraged him from proceeding in that
manner.
(Id. at 28-29).
After the hearing, the Commonwealth and counsel for Okorie submitted
briefs in support of their respective positions. The PCRA court denied Okorie’s
PCRA petition. In its opinion, the court credited Attorney Ettinger’s testimony
in its entirety with respect to the events and statements at issue; it credited
most of Okorie’s testimony as well, but found Attorney Ettinger’s recounting
of events more credible where there were any inconsistencies. (See PCRA
Court Opinion, 11/07/19, at 5). It specifically found that Attorney Ettinger did
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not promise Okorie that he would win the case if he did not testify. (See id.
at 7). Okorie timely appealed from the PCRA court’s order.3
II.
On appeal, Okorie challenges the assistance of trial counsel. See 42
Pa.C.S. § 9543(a)(2)(ii).4 “The law presumes counsel has rendered effective
assistance.” Postie, supra at 1022 (citation omitted). “In general, to prevail
on a claim of ineffective assistance of counsel, 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.” Id. (citation omitted). “The petitioner must demonstrate: (1) the
underlying claim has arguable merit; (2) counsel lacked a reasonable strategic
basis for his action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of the proceedings
would have been different.” Id. (citation omitted). “The petitioner bears the
burden of proving all three prongs of the test.” Id. (citation omitted).
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3 The PCRA court did not order Okorie to file a Rule 1925(b) statement. It
filed an opinion on December 11, 2019. See Pa.R.A.P. 1925(a)-(b).
4 “Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error.” Commonwealth v.
Postie, 200 A.3d 1015, 1022 (Pa. Super. 2018) (en banc) (citations omitted).
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“A claim has arguable merit where the factual averments, if accurate,
could establish cause for relief.” Id. at 1023 (citation omitted). Additionally,
“[w]here matters of strategy and tactics are concerned, counsel’s assistance
is deemed constitutionally effective if he chose a particular course that had
some reasonable basis designed to effectuate his client’s interests.”
Commonwealth v. Adams-Smith, 209 A.3d 1011, 1019–20 (Pa. Super.
2019) (citation omitted). “[W]e do not employ a hindsight analysis in
comparing trial counsel’s actions with other efforts he may have taken.”
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (citation
omitted).
Furthermore, with regard to Okorie’s claim of Attorney Ettinger’s inept
advice concerning his right to testify:
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
on 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).
We are also mindful that we must view the findings of the PCRA court
and the evidence of record in a light most favorable to the prevailing party ─
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here, the Commonwealth. See Commonwealth v. Mason, 130 A.3d 601,
617 (Pa. 2015). In addition, the PCRA court’s determinations regarding the
credibility of the witnesses’ testimony are binding on this Court where they
are supported by the record. See id.
A.
Okorie first claims that Attorney Ettinger was ineffective in advising him
not to testify at trial and in relying on the Commonwealth’s introduction of his
exculpatory statement to police to provide him with the defense of consent.
He also challenges counsel’s use of the phrase “win/win” in connection with
the exculpatory statement, which he claims was confusing and led him to
believe that his testimony was unnecessary because he was going to win the
case. (See Okorie’ Brief, at 17-22).
At the PCRA hearing, Attorney Ettinger, a public defender with
seventeen years of experience, testified that he initially prepared Okorie for
trial based on his assumption the Commonwealth would ultimately not
introduce his statement given that it was exculpatory and his expectation that
the only means of introducing Okorie’s version of events into evidence was
through his actual testimony. (See N.T. PCRA, at 19). He met with Okorie
approximately one dozen times and went through multiple practice runs of his
testimony, including mock direct and cross-examination. (See id. at 18).
Attorney Ettinger explained that when the Commonwealth did introduce
Okorie’s statement, he advised Okorie not to testify because his version of the
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incident as a consensual encounter instead of rape was now in evidence. (See
id. at 21). The PCRA court determined that counsel’s decision not to call
Okorie to the stand was reasonable, finding:
[T]here [was] certainly a reasonable strategic basis behind
relying on that exculpatory statement, which was ultimately
considered by the Court, while not subjecting a client to the
potential perils that testifying presents, namely rigorous cross-
examination. This is especially so in a situation where an
attorney, based upon his or her interactions with a client, harbors
legitimate concerns with respect to how that client might present
on the stand. The Court credits Attorney Ettinger’s testimony that
he carefully explained, at several junctures, the benefits and
potential pitfalls that testifying presents. The Court also credits
Attorney Ettinger’s testimony with respect to his statement
regarding the “win-win” opportunity presented by the
Commonwealth’s introduction of Defendant’s exculpatory
statement. Attorney Ettinger felt that Defendant’s case had gone
well to that point, and made the decision based upon his
experience, knowledge of the case, and preparation to advise his
client against testifying. This Court finds that a reasonable
strategic basis supported that advice.
(PCRA Ct. Op., at 7-8).
The PCRA court also found that Attorney Ettinger’s advice did not negate
Okorie’s voluntary waiver of his right to testify, pointing out that he expressly
waived his right to testify in open court at trial, and that he had demonstrated
his willingness to disregard counsel’s strong advice in favor of taking his own
approach by proceeding with a bench trial instead of a jury trial. (See id. at
8).
We conclude that the PCRA court did not err by finding trial counsel was
not ineffective for advising Okorie not to testify at trial. The record reflects
that it was Attorney Ettinger’s conscious trial strategy not to call Okorie as a
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witness after the Commonwealth introduced his exculpatory statement
because Okorie’s version of events was entered into the record without him
taking the risk of vigorous cross-examination. Moreover, Okorie has provided
no evidence that counsel interfered with his freedom to testify or gave him
specific advice so unreasonable as to vitiate a knowing and intelligent decision
not to testify in his defense. See O'Bidos, supra at 250. Therefore, Okorie’s
first argument merits no relief.5
B.
Okorie also contends that Attorney Ettinger was ineffective for failing to
call him to testify on his own behalf once it became clear that the trial court
would not give as much weight to his exculpatory statement as it did to C.W.’s
testimony because it was not subject to cross-examination. Okorie asserts
that when counsel became aware of this, he should have requested leave to
reopen the case to allow his testimony. (See Okorie’s Brief, at 22-23).
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5 Okorie’s reliance on Commonwealth v. Nieves, 746 A.2d 1102 (Pa. 2000),
is misplaced, as that case is factually distinguishable. In Nieves, trial counsel
informed the defendant in a capital case that his convictions would be used to
impeach him if he testified, even though his criminal record did not include
crimen falsi convictions. See id. at 1104-05. Our Supreme Court found that
such advice was clearly unreasonable because it is well-established that
evidence of prior convictions can only be introduced for the purpose of
impeaching the credibility of a witness if the conviction was for an offense
involving dishonesty or false statement. See id. at 1105. The Court
concluded counsel’s advice vitiated the defendant’s knowing and intelligent
decision not to testify, which he based solely on counsel’s erroneous advice.
See id. at 1106. Nieves is inapposite to the instant case where Attorney
Ettinger did not give Okorie patently erroneous legal advice on which Okorie
solely based his decision not to testify.
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First, we agree with the Commonwealth that Okorie is raising a new
claim outside of the scope of this Court’s limited remand “on [the issue of]
whether trial counsel pursued a reasonable trial strategy in advising Appellant
not to testify on his own behalf.” (Okorie, supra at 10; see also
Commonwealth’s Brief, at 22). This specific argument is, therefore, waived.
Furthermore, we note that although the trial court did not afford Okorie’s
statement the same weight as C.W.’s testimony, and Attorney Ettinger did not
anticipate the court’s position on this, Okorie’s version of consensual sex was
still introduced into evidence and considered by the court in rendering its
verdict without subjecting Okorie to the hazard of rigorous cross-examination.
In sum, Okorie has failed meet his burden of establishing Attorney
Ettinger rendered ineffective assistance by advising him not to testify at trial.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2020
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