J-E03004-21
2022 PA Super 18
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: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE,
J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J.
OPINION BY KING, J.: FILED: FEBRUARY 1, 2022
Appellant, Akeem Kevin Washington, appeals from the order entered in
the Lancaster County Court of Common Pleas, which denied his second
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 In this
appeal, we are asked to decide, inter alia, whether trial counsel provided
erroneous advice to Appellant concerning his prior convictions, which
interfered with Appellant’s constitutional right to testify in his own defense at
trial. For the following reasons, we agree with Appellant that trial counsel’s
advice to Appellant not to testify because the jury would hear not only that he
had a prior conviction for aggravated assault, but also about the details of that
crime, was improper legal advice such that Appellant should be afforded a new
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
J-E03004-21
trial. Therefore, we reverse the order denying PCRA relief, vacate the
judgment of sentence, and remand for a new trial.
I. Facts and Procedural History
The relevant facts and procedural history of this case are as follows. In
the early morning hours of December 28, 2014, police observed a disturbance
outside of a Lancaster City restaurant and lounge. The officers made contact
with the involved parties, which included Appellant. Appellant became
combative with the officers, yelled profanities, and refused arrest, causing the
officers to use a taser on Appellant to control the situation. Ultimately, the
officers arrested Appellant and transported him to the police station.
Following his arrest on charges of terroristic threats, resisting arrest, and
related offenses, Appellant was remanded to the Lancaster County Prison
(“LCP”). While incarcerated, Appellant allegedly told his cellmate, Tremayne
Jones, that he wanted to kill the officers involved in his arrest. According to
Mr. Jones, Appellant solicited him in plotting to kill the officers. Mr. Jones
reported Appellant’s plot to authorities, and the Commonwealth charged
Appellant at a separate docket with four counts of criminal solicitation to
commit homicide. Appellant proceeded to a jury trial on the solicitation docket
on August 10, 2015.
The PCRA court explained in its opinion:
[Mr.] Jones was the main witness for the Commonwealth at
trial. He testified that on December 29, 2014, he gave an
accurate and truthful statement to a corrections officer at
LCP outlining his conversations with [Appellant] while
-2-
J-E03004-21
housed with him in a cell at LCP on December 28 and 29,
2014. In this statement, [Mr.] Jones revealed how
[Appellant] had solicited his help in murdering three police
officers.7
7 Although he had no specific recollection of the
conversations recorded in the statement, [Mr.] Jones
admitted that the statement was in his handwriting,
and signed by him.
[Mr.] Jones then met with the Lancaster City Police on
December 31, 2014, and gave a nine-page statement.8 In
this statement to the police, [Mr.] Jones outlined two plans
that [Appellant] had laid out for killing the three officers
involved in his arrest, Officers Berry and Pannone, and
Sergeant Berkheiser. [Appellant] asked [Mr.] Jones to
make a fake call to the police station to lure Officers
Pannone and Berry to a remote area so [Appellant] could
shoot out their car with an automatic weapon.9 [Appellant]
further stated he was going to follow Sergeant Berkheiser
home and shoot him there, and if his family came outside,
he would shoot them too. [Mr.] Jones also detailed in his
statement to the police the specifics of [Appellant’s] arrest
on December 28, 2014, as told to him by [Appellant].
8 Again, [Mr.] Jones stated he had no independent
recollection of what he told the police but he
acknowledged that the interview took place and that
it was his signature on the statement. [Mr.] Jones
noted that he “wouldn’t have lied to the police” when
he gave them his statement.
9 [Appellant] told [Mr.] Jones he had access to
different types of weapons, including an AK47 and
AR15.
On February 10, 2015, [Mr.] Jones testified at [Appellant’s]
preliminary hearing consistent with his December 31, 2014,
police statement regarding [Appellant’s] recruitment of
[Mr.] Jones.10 Finally, during the course of his incarceration
at LCP, [Mr.] Jones had a number of telephone
conversations with his girlfriend in Texas, during which they
discussed [Appellant’s] solicitation of [Mr.] Jones to assist
in the murder of two police officers. These recorded
-3-
J-E03004-21
conversations were introduced at trial and played for the
jury.
10 Again, [Mr.] Jones had no specific recollection of his
testimony but agreed that what he would have
testified to at that time would have been accurate and
truthful.
The Commonwealth argued at trial that [Mr.] Jones’
statements to law enforcement, his testimony at the
preliminary hearing, and his conversations with his girlfriend
were all consistent and very detailed—the names of
[Appellant’s] three arresting officers, the name of the
establishment outside which [Appellant] was arrested, the
fact that [Appellant] was tased and kneed in the head, and
the fact that Sergeant Berkheiser said “mean” things to him.
The jury was told that all of [Mr.] Jones’ statements were
accurate, reliable and trustworthy because there would be
no way for [Mr.] Jones to have all the information he had
about [Appellant’s] charges and the individuals involved in
his arrest unless [Appellant] had told him. …
(PCRA Court Opinion, filed September 11, 2019, at 13-15) (internal citations
omitted).
On August 13, 2015, a jury convicted Appellant of three counts of
criminal solicitation for the three police officers and acquitted him of a fourth
count relative to the family members of Sergeant Berkheiser. The court
sentenced Appellant on October 30, 2015, to an aggregate term of 25½ to 60
years’ incarceration. On December 13, 2016, this Court affirmed Appellant’s
judgment of sentence. See Commonwealth v. Washington, 159 A.3d 1002
(Pa.Super. 2016) (unpublished memorandum). Appellant did not file a
petition for allowance of appeal with the Supreme Court.
In November 2017, Appellant retained private PCRA counsel. On
-4-
J-E03004-21
January 23, 2018, PCRA counsel filed a motion for extension of time to file a
PCRA petition. The court granted the extension and gave counsel until March
20, 2018 to file a PCRA petition. Appellant filed a counseled PCRA petition on
March 19, 2018, alleging trial counsel’s ineffectiveness. The Commonwealth
filed a motion to dismiss the petition as untimely, claiming Appellant’s
judgment of sentence had become final on January 12, 2017, before PCRA
counsel had filed the motion for extension, and that the PCRA court lacked
jurisdiction to extend the filing deadline in any event. On April 17, 2018, the
court granted the Commonwealth’s motion and dismissed the petition as
untimely.
On May 11, 2018, Appellant filed a pro se second PCRA petition, raising
PCRA counsel’s ineffectiveness in failing to file a timely PCRA petition.
Appellant ultimately retained new private counsel, who filed an amended PCRA
petition on July 20, 2018, raising trial counsel’s ineffectiveness. On July 23,
2018, the Commonwealth filed another motion to dismiss, claiming the current
PCRA petition was still untimely. In response, Appellant claimed the current
petition was timely under the “new facts” exception to the PCRA time-bar,
based on prior PCRA counsel’s essential “abandonment” of Appellant. On
September 21, 2018, the Supreme Court issued a decision in
Commonwealth v. Peterson, 648 Pa. 313, 316,
192 A.3d 1123, 1125
(2018), holding that PCRA “counsel’s negligence per se in filing an untimely
[first] PCRA petition constitutes adequate grounds to permit the filing of a new
-5-
J-E03004-21
PCRA petition beyond the one-year time bar pursuant to the exception in
subsection 9545(b)(1)(ii).” Thus, the PCRA court deemed moot the
Commonwealth’s motion to dismiss.
On December 17, 2018, Appellant filed a second amended PCRA
petition. Among other claims, Appellant alleged trial counsel was ineffective
in advising him not to testify at trial. The Commonwealth filed an answer on
February 5, 2019, with an additional motion to dismiss, asserting that its
critical witness, Mr. Jones, had died and retrying Appellant’s case would
substantially prejudice the Commonwealth.
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 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 a prior burglary conviction that
constituted crimen falsi and Appellant also had a prior aggravated assault
conviction. (Id. at 63). Trial counsel told Appellant, “I don’t want you to get
-6-
J-E03004-21
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). 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
-7-
J-E03004-21
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
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
-8-
J-E03004-21
his paperwork because in Mr. Jones’ statement to police, he spelled the
officers’ names involved with Appellant’s arrest correctly, 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,
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).
Appellant admitted that if trial counsel had told him the jury might hear about
his aggravated assault conviction, he was not sure if he would have chosen to
testify. (Id. at 126).
Following the hearing and the submission of post-hearing briefs, the
court denied PCRA relief on September 11, 2019. On October 8, 2019,
Appellant timely filed a notice of appeal. The court ordered Appellant on
October 10, 2019, to file a concise statement of errors pursuant to Pa.R.A.P.
1925(b). Appellant timely complied on November 5, 2019.
On March 23, 2021, a three-judge panel of this Court affirmed the order
denying PCRA relief, with one dissent. Appellant subsequently filed a petition
for reargument before an en banc panel of this Court. On June 3, 2021, this
Court granted the request for en banc reargument and withdrew the March
-9-
J-E03004-21
23, 2021 decision. The parties have filed supplemental briefs in this appeal.
II. Issues on Appeal
Appellant raises the following claims for our review:
1. Whether the PCRA [c]ourt erred in denying [Appellant] a
new trial where:
a. Trial counsel’s advice that [Appellant]’s prior
Aggravated Assault conviction would be admissible if he
were to testify was so unreasonable that [Appellant] did
not and could not have made a knowing and intelligent
decision to not testify at trial.
b. Trial counsel provided ineffective assistance of counsel
when he failed to elicit from the primary Commonwealth
witness prior statements that would have brought into
question his credibility.
c. Trial counsel provided ineffective assistance of counsel
when he failed to call two witness[es] on [Appellant]’s
behalf at trial. The failure of which denied [Appellant] a
fair trial as these witnesses would have severely undercut
the prosecution’s main arguments regarding
[Appellant]’s guilt.
(Appellant’s Brief at 4).
III. Scope and Standard of Review
“Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error.” Commonwealth v. Beatty,
207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied,
655 Pa. 482,
218
A.3d 850 (2019). This Court grants great deference to the factual findings of
the PCRA court if the record contains any support for those findings.
Commonwealth v. Howard,
249 A.3d 1229 (Pa.Super. 2021). “[W]e review
- 10 -
J-E03004-21
the court’s legal conclusions de novo.” Commonwealth v. Prater, 256 A.3d
1274, 1282 (Pa.Super. 2021).
IV. Appellant’s Argument
In his first claim of trial counsel ineffectiveness, Appellant argues that
he told trial counsel he wanted to testify to discredit Mr. Jones’ statements
that Appellant had solicited him to murder the officers involved with
Appellant’s arrest. Specifically, Appellant claims he wanted to testify that Mr.
Jones had access to Appellant’s court documents in their shared prison cell,
which is how Mr. Jones knew the names of the officers who arrested Appellant
and the facts giving rise to Appellant’s arrest.
Appellant contends trial counsel advised against testifying because the
jury would hear about Appellant’s “violence.” Appellant insists trial counsel
was concerned about admission of Appellant’s prior aggravated assault
conviction, which would have demonstrated that Appellant was a violent
person. Appellant avers trial counsel’s advice in this regard was erroneous
because his aggravated assault conviction was not a crime involving
dishonesty (crimen falsi), so it would not have automatically been admissible
for impeachment purposes. Appellant acknowledges that in some instances
the underlying facts of an offense can render a conviction crimen falsi even if
the offense is not inherently crimen falsi. Appellant submits, however, that
the Commonwealth did not assert at the PCRA hearing that the underlying
facts of his aggravated assault conviction transformed his conviction into one
- 11 -
J-E03004-21
of crimen falsi. To the contrary, Appellant emphasizes that the record
discloses the aggravated assault conviction was based on a “domestic
incident” and had nothing to do with any crime of dishonesty.
Appellant further acknowledges his aggravated assault conviction could
have possibly come in at trial if Appellant “opened the door” by testifying
about his good character, but that chance was unlikely and not a reason why
trial counsel advised him not to testify. Appellant also concedes that he has
a prior conviction for burglary. Appellant emphasizes, however, that trial
counsel was concerned only with the aggravated assault conviction and
counsel’s advice against testifying was not based on the prior burglary
conviction. Appellant admits that burglary is also a “crime of violence,” but
he suggests the jury would not have necessarily associated a burglary
conviction with violence the same way a jury would have with respect to an
aggravated assault conviction.
Appellant maintains he suffered prejudice due to trial counsel’s incorrect
legal advice because he would have testified if he knew his aggravated assault
conviction was not automatically admissible at trial. Appellant also notes the
court did not conduct an on-the-record colloquy to determine whether his
decision not to testify was knowing, intelligent, and voluntary. Appellant
concludes trial counsel was ineffective, and this Court must grant him a new
trial. For the following reasons, we agree relief is due.
V. Applicable Law
- 12 -
J-E03004-21
A. Ineffectiveness Test
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, ___ Pa. ___,
242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant 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. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her 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.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied,
654 Pa. 568,
216 A.3d 1029 (2019) (internal citations and
quotation marks omitted).
B. Right to Testify
“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:
- 13 -
J-E03004-21
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. 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 vitiate a
knowing and intelligent decision to testify on his own behalf.
Nieves, supra at 533-34,
746 A.2d at 1104 (internal citations omitted).
[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
____________________________________________
2 “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.
- 14 -
J-E03004-21
voluntary, where court credited counsel’s testimony that he discussed right to
testify with appellant on numerous occasions and counsel’s advice was
reasonable).
C. Crimen Falsi
Pennsylvania Rule of Evidence 609 provides, in pertinent part:
Rule 609. Impeachment by Evidence of a Criminal
Conviction
(a) In General. For the purpose of attacking the credibility
of any witness, evidence that the witness has been
convicted of a crime, whether by verdict or by plea of guilty
or nolo contendere, must be admitted if it involved
dishonesty or false statement.
Pa.R.E. 609(a) (emphasis added). “[C]rimes involving dishonesty or false
statement [are] commonly referred to as crimen falsi crimes, for purposes of
impeaching a witness’s credibility.” Commonwealth v. Moser, 999 A.2d
602, 607 n.6 (Pa.Super. 2010), appeal denied,
610 Pa. 595,
20 A.3d 485
(2011). See also Commonwealth v. E. Jones,
334 Pa. 321, 323,
5 A.2d
804, 805 (1939) (stating term crimen falsi involves element of falsehood and
includes everything which has tendency to injuriously affect administration of
justice by introduction of falsehood and fraud).
When deciding whether a crime is crimen falsi, we initially “examine the
essential elements of the offense to determine if the crime is inherently crimen
falsi—whether dishonesty or false statement are a necessary prerequisite to
commission of the crime.” Commonwealth v. Davis, 17 A.3d 390, 395-96
(Pa.Super. 2011), appeal denied,
611 Pa. 678,
29 A.3d 371 (2011). “[I]f the
- 15 -
J-E03004-21
crime is not inherently crimen falsi, this Court then inspects the underlying
facts that led to the conviction to determine if dishonesty or false statement
facilitated the commission of the crime. The burden of proof is upon the party
offering the conviction during cross-examination.” Id. at 396.
Aggravated assault is not inherently crimen falsi. See 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.
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). On the other hand, burglary is
considered inherently crimen falsi. See Commonwealth v. Cole,
227 A.3d
336, 340 (Pa.Super. 2020) (explaining burglary and theft are crimen falsi
offenses).
Importantly, only the underlying crimen falsi conviction is admissible for
impeachment purposes at trial; the facts underlying that conviction are not
admissible. Commonwealth v. Oglesby, 418 A.2d 561, 592 (Pa.Super.
1980) (stating that when defendant is impeached through introduction of prior
convictions, only name, time and place of crime and punishment received may
- 16 -
J-E03004-21
be entered into evidence). “We employ this limitation to minimize the
potential prejudice and distraction of issues already inherent in the mention
of prior offenses.” Commonwealth v. Creary, 201 A.3d 749, 754 (Pa.Super.
2018) (internal citation omitted). See also Commonwealth v. R. Jones,
378 A.2d 471, 476-77 (Pa.Super. 1977) (reversing and remanding for new
trial where court informed jury of details of defendant’s prior conviction; “By
informing the jury of more than the basic fact of conviction, we believe that
the [trial] court increased the natural and inevitable tendency of the tribunal
to give excessive weight to the vicious record of crime thus exhibited”; here,
jury was improperly informed of details of prior crime, including name of victim
and amount stolen, and also that defendant had been convicted under alias)
(internal citations omitted).
D. Relevant Ineffectiveness Cases
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
- 17 -
J-E03004-21
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
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.
Additionally, 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.
- 18 -
J-E03004-21
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
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.
- 19 -
J-E03004-21
VI. Legal Analysis
Instantly, the parties agree that aggravated assault is not inherently
crimen falsi. See id. See also Hall, supra;
Grimm, supra. Although 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), nothing in
this record suggests, and the Commonwealth did not argue at the PCRA
hearing, 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. (See N.T. Sentencing, 10/30/15, at 8).
In its supplemental brief, the Commonwealth insists that Appellant bore
the burden at the PCRA hearing3 to proffer evidence regarding the underlying
facts of the aggravated assault conviction to demonstrate that those facts did
not transform his aggravated assault conviction into one of crimen falsi. (See
Commonwealth’s Supplemental Brief at 3-4). Significantly, however, neither
our Supreme Court in Nieves4 nor this Court in Moore required the
____________________________________________
3 At the PCRA hearing, Appellant and trial counsel described Appellant’s
aggravated assault conviction as a “domestic incident.”
4 We reject the Commonwealth’s suggestion that this Court’s two-part test
discussed in Davis would have changed the outcome of Nieves. (See
Commonwealth’s Supplemental Brief at 2 n.2). Although this Court’s 2011
decision in Davis came after our Supreme Court’s decision in Nieves, the
Davis Court relies on case law from 1995 discussing the two-part inquiry in
deciding whether a crime is crimen falsi. See Davis, supra at 395 (citing
(Footnote Continued Next Page)
- 20 -
J-E03004-21
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.
Importantly, even if the underlying facts of the aggravated assault
conviction would have made it a proper crimen falsi conviction for
impeachment purposes,5 counsel’s advice to Appellant not to testify to shield
the jury from hearing about the facts of the aggravated assault conviction
was improper in and of itself. See Creary, supra. 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
____________________________________________
Commonwealth v. Coleman,
664 A.2d 1381 (Pa.Super. 1995), appeal
denied,
545 Pa. 675,
682 A.2d 306 (1996)), for statement: “When deciding
whether a particular offense is crimen falsi, one must address both the
elemental aspects of that offense and the conduct of the defendant which
forms the basis of the anticipated impeachment”) (emphasis in original).
Thus, Davis did not announce any “new” framework for deciding whether a
crime is crimen falsi.
5 Despite the fact that Appellant’s prior aggravated assault and burglary
convictions were charged on the same criminal information, nothing in the
record suggests that Appellant’s burglary offense somehow converted
Appellant’s separate aggravated assault conviction into one of crimen falsi.
The actions of Appellant by slashing the neck of someone, while heinous,
constitute a crime of violence, not one of dishonesty or falsehood. See Hall,
supra;
Grimm, supra.
- 21 -
J-E03004-21
conviction could come in at trial and would be “too shocking” for the jury to
hear. (See N.T. PCRA Hearing at 64-65). See R. Jones, supra.
We acknowledge, and the parties agree, that Appellant’s prior burglary
conviction is a crimen falsi offense. See Cole, supra. Thus, had trial counsel
advised Appellant not to testify to prevent the jury from hearing that Appellant
had been previously convicted of burglary, such advice would have been
reasonable.6 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 the details of Appellant’s prior
aggravated assault conviction would not have been admissible for
impeachment purposes as proper crimen falsi evidence, counsel’s advice in
this respect was erroneous.7 See Nieves, supra. See also
Creary, supra.
Additionally, trial counsel admitted that when advising Appellant not to
____________________________________________
6Of course, had counsel advised Appellant not to testify because the jury
would hear the underlying facts of the prior burglary conviction, that advice
would be unreasonable. See Creary, supra; R. Jones, supra.
7 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. 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.
- 22 -
J-E03004-21
testify, counsel did not consider the possible risk of Appellant “opening the
door” to admission of the aggravated assault conviction, based on Appellant’s
reasons for wanting to testify (to discredit Mr. Jones’ version of the events)
and because Appellant was “not a foolish man.” (N.T. PCRA Hearing 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.
Further, our 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 had access to
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.8 See
Nieves, supra.
We recognize that Mr. Jones’ death might hamper the Commonwealth’s
ability to prove its case upon Appellant’s new trial. The Commonwealth argued
before the PCRA court that even if Appellant could prove trial counsel’s
____________________________________________
8 Based on our disposition, we do not address Appellant’s remaining claims of
trial counsel’s ineffectiveness.
- 23 -
J-E03004-21
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
petition to warrant dismissal of Appellant’s PCRA petition on that basis. (See
PCRA Court Opinion 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.
Additionally, the Commonwealth is not precluded from introducing Mr.
Jones’ prior testimony at a new trial. See Pa.R.E. 804(a)(4) (stating declarant
is considered unavailable as witness if declarant cannot be present or testify
at trial or hearing because of death); and (b)(1) (stating former testimony
that was given as witness at trial, hearing or lawful deposition is not excluded
by rule against hearsay if declarant is unavailable as witness and where
testimony is now offered against party who had opportunity and similar motive
to develop it by direct, cross, or redirect examination). Accordingly, we
reverse the order denying PCRA relief, vacate the judgment of sentence, and
- 24 -
J-E03004-21
remand for a new trial.
Order reversed. Judgment of sentence vacated. Case remanded for a
new trial. Jurisdiction is relinquished.
President Judge Panella, President Judge Emeritus Bender, Judge
Kunselman, Judge Nichols and Judge McCaffery join this opinion.
Judge Olson files a dissenting opinion which Judge Bowes and Judge
Stabile join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/01/2022
- 25 -
