Com. v. Washington, A.

J-A25039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
AKEEM KEVIN WASHINGTON :
:
Appellant : No. 1655 MDA 2019
Appeal from the PCRA Order Entered September 11, 2019
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000862-2015
BEFORE: BOWES, J., OLSON, J., and KING, J.
DISSENTING MEMORANDUM BY KING, J.: FILED MARCH 23, 2021
I respectfully disagree with the majority’s analysis of Appellant’s first
issue concerning trial counsel’s ineffectiveness for advising Appellant not to
testify at trial. In my opinion, trial counsel’s advice was erroneous, counsel
lacked a rational basis for his actions, and Appellant suffered prejudice.
Therefore, I would vacate and remand for a new trial, and I dissent.
To recap some of the relevant facts of this case, Tremayne Jones was
the main witness for the Commonwealth at trial. Mr. Jones testified that on
December 29, 2014, he gave a statement to a corrections officer at Lancaster
County Prison (“LCP”) outlining Mr. Jones’ conversations with Appellant while
housed together at LCP on December 28th and 29th, 2014. In this statement,
Mr. Jones revealed how Appellant had solicited him to murder the police
officers involved in Appellant’s arrest.
J-A25039-20
Mr. Jones met with police on December 31, 2014, and gave another
statement, in which he outlined two plans that Appellant had purportedly laid
out for killing the officers. Mr. Jones also detailed in this statement the
specifics of Appellant’s arrest, as told to him by Appellant. On February 10,
2015, Mr. Jones testified at Appellant’s preliminary hearing consistent with his
December 31, 2014 statement to police.1 While incarcerated at LCP, Mr. Jones
also had a series of telephone conversations with his girlfriend in which Mr.
Jones discussed Appellant’s solicitation of him to murder the police officers
involved in Appellant’s arrest. The Commonwealth played these recorded
conversations for the jury.
The Commonwealth argued at trial that Mr. Jones’ statements to law
enforcement, testimony at the preliminary hearing, and his conversations with
his girlfriend were all consistent and very detailed. Specifically, the
Commonwealth emphasized that Mr. Jones knew the names of Appellant’s
arresting officers, the name of the establishment outside which Appellant was
arrested, and other facts that Mr. Jones could not have known unless Appellant
had told him. The jury ultimately convicted Appellant of three counts of
criminal solicitation for the three police officers involved in Appellant’s arrest,
____________________________________________
1 At trial, Mr. Jones said he had no specific recollection of what he told the
corrections officer on December 29, 2014 or the police on December 31, 2014,
but he acknowledged that the statements were signed by him. Similarly, Mr.
Jones said he had no specific recollection of his preliminary hearing testimony,
but he admitted that he would have testified truthfully at that proceeding.
-2-
J-A25039-20
and acquitted him of a fourth count relative to the family members of one of
the officers.
In his current PCRA petition, Appellant alleged, inter alia, trial counsel
was ineffective in advising him not to testify at trial. The court held a PCRA
hearing on April 10, 2019. At the PCRA hearing, trial counsel could not recall
if he and Appellant had any pre-trial conversation regarding whether Appellant
would testify, and if they did have such a conversation, it would have been
“very brief.” (See N.T. PCRA Hearing, 4/10/19, at 46-49). On the first day
of trial, Appellant turned to trial counsel and said “this is not going well, I need
to testify…because I need to be able to explain to the jury how [Mr. Jones]
got this information”; at that point, Appellant and trial counsel discussed
whether Appellant should testify. (See id. at 58-59). Appellant was “very
animated” about wanting to testify and asked trial counsel to confer with his
family about it as well. (Id. at 61).
Trial counsel knew Appellant had prior convictions for burglary and
aggravated assault. (Id. at 63). Trial counsel told Appellant, “I don’t want
you to get on the stand because the prosecutor could bring up the aggravated
assault conviction and then the jury…will think you’re violent.” (Id.) Trial
counsel was concerned in particular with the aggravated assault conviction
because the facts of that case involved a domestic incident which counsel
“thought would be just too shocking if the jury were to hear that” where
Appellant was on trial for solicitation to commit a violent act. (Id. at 64).
-3-
J-A25039-20
Trial counsel believed at the time that if Appellant were to testify, the
conviction for aggravated assault and the details surrounding that
conviction would come in for impeachment purposes. (Id. at 65). Based on
that belief, trial counsel advised Appellant not to testify. (Id.).
Trial counsel admitted that if the aggravated assault conviction was not
admissible for impeachment purposes, “then there would have been no reason
to advise [Appellant not to testify], specifically [because Appellant told counsel
he] really want[ed] to get up there to explain to the jury how [Mr. Jones] got
that [information].” (Id. at 65-66). Even though the burglary conviction
would have been admissible for impeachment purposes, trial counsel made
clear that he “wasn’t even thinking about the burglary conviction”; rather, trial
counsel’s “concern was the aggravated assault because of the specific details
of that [conviction].” (Id. at 66). Trial counsel expressly told Appellant and
his family that Appellant should not testify because if he did, the jury would
hear about his violence. Appellant trusted counsel’s advice. (Id. at 66-67).
On cross-examination, the Commonwealth asked trial counsel if he
considered the risk that if Appellant had testified, the aggravated assault
conviction might have come in if Appellant “opened the door” to its admission.
(Id. at 88). In response, trial counsel stated:
I do not recall thinking of that risk because, again, I knew
him pretty well. He’s not a foolish man. And that he—he
did tell me he primarily wanted to get on the stand not to
testify that he’s never been violent. I mean, he really
wanted to focus on the alternative way that Mr. Jones could
have gotten the evidence. So again, because of that, that
-4-
J-A25039-20
was the narrowness of our conversation. Just candidly, it
would not have occurred to me to fear that he was going to
say something that opened the door to violence.
(Id. at 88-89).
With respect to his decision not to testify at trial, Appellant stated that
he and trial counsel did not discuss whether Appellant would testify at any
time before trial. (Id. at 113). Appellant admitted he did not tell trial counsel
that he wanted to testify prior to trial. (Id.) During trial, when Appellant
heard Mr. Jones’ testimony, Appellant decided he “needed to get up there.”
(Id. at 114). Appellant “nudged” trial counsel and told him that Mr. Jones
must have learned the information about Appellant’s arrest through
paperwork that Appellant had in their shared cell. (Id.) Appellant told trial
counsel he “wanted to testify so they could know the whole story as to how
any information that was on this paperwork was being transmitted by Mr.
Jones.” (Id. at 116-17). Appellant said there were numerous occasions when
Mr. Jones was in his cell by himself and could have accessed Appellant’s
paperwork. (Id. at 117). Appellant believed Mr. Jones must have accessed
his paperwork because in Mr. Jones’ statement to police, he spelled correctly
the officers’ names involved with Appellant’s arrest, and Appellant did not
even know the officers’ names. (Id. at 118).
After Appellant told trial counsel he wanted to testify, trial counsel said
it “[w]asn’t a good idea” based on Appellant’s prior aggravated assault
conviction. (Id. at 118-19). Trial counsel told Appellant that if he testified,
-5-
J-A25039-20
the jury would hear about Appellant’s prior aggravated assault conviction;
Appellant relied on trial counsel’s advice. (Id. at 119). Appellant clarified
that if trial counsel had told him the jury would not hear about the aggravated
assault conviction, Appellant would have chosen to testify. (Id. at 125).
Following the hearing and the submission of post-hearing briefs, the court
denied PCRA relief on September 11, 2019.
As the majority acknowledges: “The right of an accused to testify on his
own behalf is a fundamental tenet of American jurisprudence and is explicitly
guaranteed by Article I, Section 9 of the Pennsylvania Constitution.”
Commonwealth v. Nieves, 560 Pa. 529, 534-35, 746 A.2d 1102, 1105
(2000). Significantly, “the presumption must always be against the waiver of
a constitutional right,” and we are bound to “place the burden of proving
waiver on the Commonwealth.” Commonwealth v. Robinson, 970 A.2d
455, 458 (Pa.Super. 2009) (en banc) (internal citations omitted). Thus, “[t]he
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.” Nieves, supra
at 533, 746 A.2d at 1104. “The decision to forgo such a significant
right…[cannot] be based on mistaken guidance.” Id. at 535, 746 A.2d at
1105.
“[T]o 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
-6-
J-A25039-20
specific advice so unreasonable as to vitiate a knowing and intelligent decision
to testify on his own behalf.” Id. at 534, 746 A.2d at 1104.
[T]he 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.
Commonwealth v. Walker, 110 A.3d 1000, 1005 (Pa.Super. 2015), appeal
denied, 633 Pa. 756, 125 A.3d 777 (2015) (emphasis in original).
A trial court is not required to conduct a colloquy to determine whether
a defendant has made a knowing, intelligent and voluntary waiver of his right
to testify.2 Commonwealth v. Todd, 820 A.2d 707, 712 (Pa.Super. 2003).
Nevertheless, a criminal defendant must understand his decision not to testify
if not by colloquy, then by the presumed competent advice of counsel. See
id. (holding appellant’s waiver of right to testify was knowing, intelligent and
voluntary, where court credited counsel’s testimony that he discussed right to
____________________________________________
2 Here, the record shows the trial court did not conduct a waiver colloquy. “A
waiver colloquy is a procedural device; it is not a constitutional end or
constitutional ‘right.’” Commonwealth v. Mallory, 596 Pa. 172, 189, 941
A.2d 686, 697 (2008), cert. denied, 555 U.S. 884, 129 S.Ct. 257, 172 L.Ed.2d
146 (2008). Although “an on-the-record colloquy is a useful procedural tool
whenever the waiver of any significant right is at issue, constitutional or
otherwise…, the colloquy does not share the same status as the right itself.”
Id. at 190, 941 A.2d at 697. Although I think as a “best practice” the trial
court should conduct a waiver colloquy to confirm a defendant’s decision not
to testify is knowing, intelligent, and voluntary, the trial court’s failure to do
so in this case does not afford Appellant any relief.
-7-
J-A25039-20
testify with appellant on numerous occasions and counsel’s advice was
reasonable).
In Nieves, supra, trial counsel advised the defendant to waive his right
to testify by informing the defendant that if he took the stand, he would be
impeached with his prior criminal record, which included two firearms offenses
and at least two drug trafficking offenses. The defendant claimed that
counsel’s advice constituted ineffective assistance, and our Supreme Court
agreed “such advice was clearly unreasonable as 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.” Nieves, supra at 534, 746 A.2d at
1104-05. Because the defendant’s prior convictions did not involve dishonesty
or false statements, they would not have been admissible to impeach the
defendant’s credibility. As the defendant’s decision not to testify was based
solely on this erroneous advice, the Court held that his decision “cannot be
deemed knowing or intelligent.” Id. at 534, 746 A.2d at 1105.
The Supreme Court also expressly rejected the Commonwealth’s
argument that trial counsel’s advice not to testify was reasonable where the
Commonwealth could have cross-examined the defendant regarding the
motive for the killing at issue, which was allegedly a drug debt, and thereby
introduced the prior drug convictions. The Supreme Court emphasized that
although trial counsel mentioned he was initially concerned with “opening the
-8-
J-A25039-20
door to evidence of drug activity,” trial counsel later clarified that was not the
reason for his advice not to testify. Id. at 535, 746 A.2d at 1105. Rather,
trial counsel’s testimony made clear his advice was based solely on counsel’s
belief that the defendant would be impeached with his prior convictions.
Because that advice was clearly erroneous, the Supreme Court held “that trial
counsel’s advice was so unreasonable as to vitiate [the defendant’s] knowing
and intelligent decision not to testify.” Id. at 535-37, 746 A.2d at 1105-06.
Therefore, the Court remanded for a new trial.
In Commonwealth v. Moore, 715 A.2d 448 (Pa.Super. 1998), a jury
convicted the defendant of one count each of attempted murder and
aggravated assault, and two counts each of simple assault and robbery. In
his first PCRA petition, the defendant claimed trial counsel had rendered
ineffective assistance by permitting the introduction of evidence relating to
the defendant’s criminal history. Specifically, the defendant testified in his
own defense at trial, and trial counsel elicited testimony from the defendant
that he had prior convictions for aggravated assault, forgery, and two
robberies. The defendant also explained that he was currently on parole for
robbery. The PCRA court found that trial counsel was ineffective for allowing
such evidence to come in and granted the defendant a new trial. See id. at
450-51.
The Commonwealth appealed, and this Court affirmed the award of a
new trial, in part due to trial counsel’s ineffectiveness. This Court explained
-9-
J-A25039-20
that while the Commonwealth could have introduced the defendant’s robbery
and forgery convictions as crimen falsi to impeach his testimony, the
defendant’s aggravated assault conviction could not have been used for
impeachment purposes. Id. at 452. This Court stated: “Here, because [the
defendant’s] previous aggravated assault conviction is not in the nature of
crimen falsi and does not fall within the exceptions related to other crime
evidence, the Commonwealth could not have introduced this conviction.” Id.This Court further held that counsel lacked a reasonable basis for his actions
in permitting the introduction of such evidence, and that it could not “fault the
PCRA court’s finding that [the defendant] suffered prejudice due to trial
counsel’s ineffectiveness[.]” Id.Instantly, it is undisputed that aggravated assault is not inherently
crimen falsi. Nevertheless, the majority concludes that where a crime is not
inherently crimen falsi, we must also inspect the underlying facts that led to
the conviction to determine if dishonesty or false statement facilitated the
commission of the crime. See Commonwealth v. Davis, 17 A.3d 390, 395-
96 (Pa.Super. 2011), appeal denied, 611 Pa. 678, 29 A.3d 371 (2011).
Although the majority concedes that at trial, the burden of proof is upon the
party offering the conviction during cross-examination (see id. at 396), it
holds that Appellant bore the burden at the PCRA hearing to prove that the
facts underlying his aggravated assault conviction did not involve falsehood
or dishonesty. In other words, the majority essentially requires Appellant to
- 10 -
J-A25039-20
prove a negative to succeed on his ineffectiveness claim. In this respect, I
must depart from the majority’s viewpoint.
Here, nothing in the record suggests, and the Commonwealth does not
argue, that dishonesty or false statement facilitated commission of Appellant’s
prior aggravated assault conviction. To the contrary, the record indicates that
Appellant’s aggravated assault conviction was for slashing the neck of his
then-girlfriend.3 (See N.T. Sentencing, 10/30/15, at 8). While heinous,
Appellant’s actions constitute a crime of violence, not one of dishonesty or
falsehood. See, e.g., Commonwealth v. Hall, 867 A.2d 619 (Pa.Super.
2005), appeal denied, 586 Pa. 756, 895 A.2d 549 (2006) (noting conviction
for aggravated assault is crime of violence, not of falsity or deceit; since it
does not reflect upon one’s veracity it could not have been used to impeach
witness’s testimony); Commonwealth v. Bracey, 831 A.2d 678, 682
(Pa.Super. 2003), appeal denied, 577 Pa. 685, 844 A.2d 551 (2004) (stating:
“[W]e detect no basis upon which to find that the trial judge erred or abused
his discretion in refusing to allow defense counsel to cross examine the victim
about his prior conviction for aggravated assault”; victim’s prior aggravated
assault conviction was not conviction involving dishonesty or false statements
____________________________________________
3 At the PCRA hearing, Appellant and trial counsel described Appellant’s
aggravated assault conviction as a “domestic incident.” While the facts of
Appellant slashing his then-girlfriend’s neck did not come up at the PCRA
hearing, those facts are of record in the sentencing proceeding. Thus, I
disagree with the majority’s statement that the record contains no evidence
regarding the circumstances of Appellant’s aggravated assault conviction.
- 11 -
J-A25039-20
and is, therefore, irrelevant to issue of his veracity); Moore, supra;
Commonwealth v. Grimm, 378 A.2d 377, 380 (Pa.Super. 1977)
(explaining: “[C]onvictions showing assaultive or disorderly conduct do not
involve false statement or dishonesty. They are completely irrelevant to
the issue of the witnesses’ veracity. It was, therefore, improper for the
court to allow this form of impeachment”) (emphasis added).
I acknowledge that in some instances the underlying facts of a crime
can be used to admit a prior conviction that is not inherently crimen falsi. See
Davis, supra. I emphasize, however, that neither our Supreme Court in
Nieves nor this Court in Moore required the defendants in those cases to
produce evidence that the underlying facts of their respective crimes did not
transform their prior convictions into crimen falsi offenses, to succeed on their
ineffectiveness claims. See Nieves, supra; Moore, supra. In other words,
neither the Nieves Court nor Moore Court required the defendants to prove
a negative to demonstrate ineffectiveness of counsel.
I also recognize that Appellant had a burglary conviction on his criminal
record at the time of trial. Unlike aggravated assault, burglary is a crimen
falsi offense. See Commonwealth v. Cole, 227 A.3d 336, 340 (Pa.Super.
2020) (explaining burglary and theft are crimen falsi offenses). Appellant’s
prior burglary conviction (which was graded a first-degree felony) constitutes
a crime of violence. See Commonwealth v. Chester, 627 Pa. 429, 445, 101
A.3d 56, 65 (2014) (stating: “[I]t is an offender’s non-privileged entry, which
- 12 -
J-A25039-20
invites dangerous resistance and, thus, the possibility of the use of deadly
force against either the offender or the victim, that renders burglary a violent
crime, not the behavior that is actually exhibited during the burglary”). Thus,
had trial counsel advised Appellant not to testify to prevent the jury from
hearing about Appellant’s burglary conviction, I would have agreed with the
PCRA court’s analysis that counsel’s advice was reasonable.
Nevertheless, trial counsel made clear at the PCRA hearing that his
advice against testifying was based solely on fear of Appellant’s prior
aggravated assault conviction coming in for impeachment purposes and the
jury hearing details about that offense. (See N.T. PCRA Hearing at 64-65).
In fact, counsel expressly stated that he “wasn’t even thinking about the
burglary conviction.” (Id. at 66). Because I do not believe Appellant’s prior
aggravated assault conviction was admissible for impeachment purposes as a
crimen falsi offense, I would conclude that counsel’s advice in this respect was
erroneous.4 See Nieves, supra.Alternatively, counsel’s advice for Appellant not to testify to shield the
jury from hearing about the facts of the aggravated assault conviction was
improper in and of itself. Only the underlying crimen falsi conviction is
____________________________________________
4 The fact that trial counsel might have responded to hypothetical questions
concerning whether counsel believed his advice to Appellant was erroneous is
not the proper inquiry in my view. This Court can decide as a matter of law
whether counsel’s advice was legally sound, and whether counsel rightly or
wrongly believed his advice was improper is immaterial.
- 13 -
J-A25039-20
admissible for impeachment purposes at trial; the facts underlying that
conviction are not admissible. See Pa.R.E. 609(a) (stating that for purposes
of attacking credibility of any witness, evidence that witness has been
convicted of crime shall be admitted if it involved dishonesty or false
statement); Commonwealth v. Creary, 201 A.3d 749, 754 (Pa.Super. 2018)
(explaining that when defendant is impeached through introduction of prior
conviction, witness’s opponent may introduce only name, time, and place of
crime and punishment received; “we employ this limitation to minimize the
potential prejudice and distraction of issues already inherent in the mention
of prior offenses”; in prior cases, we have precluded party seeking to
impeach witness from using facts underlying prior conviction, in
circumstances where such facts would increase risk of prejudice to party or
confusion of issues) (internal citation omitted). Consequently, even if
Appellant’s aggravated assault conviction was admissible for impeachment
purposes as a crimen falsi offense based on its underlying facts, counsel’s
advice to Appellant not to testify was still erroneous where counsel told
Appellant that the “facts” and “details surrounding” his aggravated assault
conviction could come in at trial and would be “too shocking” for the jury to
hear about. (See N.T. PCRA Hearing at 64-65).
Additionally, trial counsel admitted that when advising Appellant not to
testify, counsel did not consider the possible risk of Appellant “opening the
door” to admission of the aggravated assault conviction, based on Appellant’s
- 14 -
J-A25039-20
reasons for wanting to testify (to discredit Mr. Jones’ version of the events)
and because Appellant was “not a foolish man.” (Id. at 88-89). Thus, like
the attorney in Nieves, trial counsel acknowledged that he did not have an
alternative reasonable strategy for advising Appellant not to testify. See
Nieves, supra at 537, 746 A.2d at 1106.
My review of Appellant’s testimony at the PCRA hearing confirms that,
but for trial counsel’s erroneous advice concerning admission of the
aggravated assault conviction, Appellant would have testified. (See N.T.
PCRA Hearing at 113-26). See also Walker, supra. The speculative nature
of Appellant’s testimony concerning whether Mr. Jones actually accessed
Appellant’s paperwork is of no moment; the relevant inquiry is whether
Appellant’s decision not to testify would have been different absent counsel’s
ineffectiveness. See id. Under these circumstances, Appellant has
established trial counsel’s ineffectiveness in connection with Appellant’s
waiver of his right to testify. See Nieves, supra. Therefore, I would vacate
the order denying PCRA relief and remand for a new trial. 5 Based on my
____________________________________________
5 I recognize that Mr. Jones’ death might hamper the Commonwealth’s ability
to prove its case upon a new trial. The Commonwealth argued before the
PCRA court that even if Appellant could prove trial counsel’s ineffectiveness,
the court should have dismissed Appellant’s PCRA petition due to the prejudice
a new trial would cause the Commonwealth. While the PCRA court
acknowledged the substantial prejudice a new trial would cause the
Commonwealth, the court noted that Mr. Jones died during the pendency of
Appellant’s direct appeal. Thus, there was no causal connection between the
prejudice to the Commonwealth and the filing of Appellant’s original PCRA
- 15 -
J-A25039-20
disposition of Appellant’s first issue, I would not have reached Appellant’s
remaining claims of trial counsel’s ineffectiveness.
____________________________________________
petition to warrant dismissal of Appellant’s PCRA petition on that basis. (See
PCRA Court Opinion, filed 9/11/19, at 27). See also 42 Pa.C.S.A. § 9543(b)
(stating court shall dismiss PCRA petition “if it appears at any time that,
because of delay in filing the petition, the Commonwealth has been prejudiced
either in its ability to respond to the petition or in its ability to re-try the
petitioner”). The Commonwealth does not challenge this aspect of the PCRA
court’s reasoning on appeal.
- 16 -