J-E03004-21
2022 PA Super 18
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
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-0000962-2015
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE,
J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J.
DISSENTING OPINION BY OLSON, J.: FILED: FEBRUARY 1, 2022
I must respectfully dissent from the learned Majority’s decision in this
case because, I believe, the Majority improperly relieved Appellant of his
burden to produce evidence that his aggravated assault conviction was not
admissible as impeachment evidence.
Appellant was convicted of three counts of criminal solicitation to
commit murder. At the time of trial, Appellant had two prior convictions that
arose out of a single domestic abuse incident; the prior convictions were for
burglary and aggravated assault. The main issue in this case is whether
Appellant’s trial counsel was ineffective for advising Appellant not to testify at
trial. Trial counsel reasoned that, if Appellant chose to testify, he would be
impeached with his prior conviction for aggravated assault.
We have explained:
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“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,
shall be admitted if it involved dishonesty or false statement.”
Pa.R.E. 609(a). Crimes involving dishonesty or false
statement are commonly referred to as crimen falsi crimes.
Crimen falsi involves the element of falsehood, and includes
everything which has a tendency to injuriously affect the
administration of justice by the introduction of falsehood and
fraud.
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. Accordingly, this Court
employs a two-step procedure to determine whether a crime
is crimen falsi. First, we 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. Second, if the 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.
Commonwealth v. Davis, 17 A.3d 390, 395-396 (Pa. Super. 2011)
(corrections and some quotations and citations omitted) (emphasis in
original).
At trial, “[t]he burden . . . is upon the party offering the conviction
during cross-examination” to prove that the conviction qualifies as crimen
falsi. Id. at 396. However, in the case at bar, Appellant is seeking relief
under the Post Conviction Relief Act (“PCRA”), based upon a claim that trial
counsel was ineffective. As such, Appellant bears the “burden of
demonstrating ineffectiveness.” Commonwealth v. Rivera,
10 A.3d 1276,
1279 (Pa. Super. 2010).
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The Majority initially concludes that trial counsel was ineffective because
counsel erroneously advised Appellant that, if Appellant testified at trial, the
Commonwealth would impeach Appellant with his prior conviction for
aggravated assault. According to the Majority, this advice was incorrect,
unreasonable, and vitiated Appellant’s decision not to testify on his own behalf
at trial, as Appellant could not have been impeached with his aggravated
assault conviction.
In analyzing Appellant’s claim, the Majority initially (and properly)
declares that aggravated assault is not inherently crimen falsi; thus, had
Appellant testified at trial, his aggravated assault conviction would not have
automatically been admissible as impeachment evidence. See Majority
Opinion, at *16. Further, the Majority properly recites the second step of the
admissibility test, declaring: “[i]f the 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.” See
id. at **15-16, quoting, Davis, 17 A.3d at 396. The Majority then declares
that Appellant’s ineffective assistance of counsel claim succeeds because
“nothing in the 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.” Majority Opinion, at *20. I
believe this is where the Majority errs.
During the PCRA hearing, the Commonwealth did not have the burden
of proving that “dishonesty or false statement facilitated commission of
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Appellant’s prior aggravated assault conviction.” See id. Rather, Appellant,
as the PCRA petitioner, bore the burden of proving that he was entitled to
post-conviction collateral relief and, thus, Appellant bore the burden of proving
that dishonesty or false statement did not facilitate his aggravated assault
conviction.1, 2
Additionally, I see nothing in the record demonstrating that Appellant
met his burden of production regarding the inadmissibility of the aggravated
assault conviction. Specifically, the PCRA record contains no evidence
regarding the circumstances of that conviction and at no time during the PCRA
hearing did trial counsel, Appellant, or anyone else testify that the aggravated
assault conviction was not accomplished by dishonesty or false statement.
Further, during the PCRA hearing, trial counsel never admitted that he erred
in giving his specific advice to Appellant; instead, regarding this issue, trial
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1 At trial, “[t]he burden . . . is upon the party offering the conviction during
cross-examination” to prove that the conviction qualifies as crimen falsi.
Davis, 17 A.3d at 396. Thus, at the PCRA stage, it is more accurate to state
that Appellant has the burden of pleading and proving that the Commonwealth
would not have been able to prove, at trial, that the aggravated assault
conviction qualified as crimen falsi. For simplicity, however, we have declared
that Appellant “bore the burden of proving that dishonesty or false statement
did not facilitate his aggravated assault conviction.” See supra at *4
(emphasis omitted).
2 For example, in the domestic abuse situation that resulted in Appellant’s
aggravated assault conviction, Appellant may have lied to the victim to gain
access to her and facilitate the aggravated assault. See Davis,
17 A.3d at
396 (“if the 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”).
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counsel merely responded to hypotheticals that were proffered by Appellant’s
PCRA counsel.3 Moreover, the Commonwealth never stipulated or expressly
admitted4 to the aggravated assault conviction being inadmissible as
____________________________________________
3 During the PCRA hearing, trial counsel testified:
Q: Hypothetical. As an attorney who has been practicing as long
as you were at the time, if that [advice were] incorrect, that the
aggravated assault conviction would be put in front of the jury and
that any details of that would be put in front of the jury, if those
two things were incorrect, would your advice to [Appellant]
have been different about him testifying or not testifying?
...
A: It’s hard to armchair quarterback later, even from my own
perspective, but I will say since my recollection of the
conversation, the short answer would be, I think – I would say
yes. And if I can qualify that?
Q: Of course.
A: Simply because it’s my reasoning, which I know it was because
I told him and I remember telling his family was, I don’t want
them to hear about your violence. I don’t want them to hear about
your violence.
If that was incorrect, then there would have been no reason to
advise him otherwise, specifically. And he told me, no, I really
want to get up there to explain to the jury how he got that.
Does that answer your question?
Q: Yes.
See N.T. PCRA Hearing, 4/10/19, at 65-66 (emphasis added).
4 In the Commonwealth’s brief on appeal, the Commonwealth acknowledges
that “an aggravated assault conviction would not be admitted as a matter of
(Footnote Continued Next Page)
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impeachment evidence and the PCRA court did not make any specific factual
findings on this point. See PCRA Hearing, 4/10/19, at 1-134;
Commonwealth’s Answer to Petitioner’s Brief in Support of Amended
Post-Conviction Collateral Relief, 8/5/19, at 3-8; Commonwealth’s Brief at
1-14; PCRA Court Opinion, 9/11/19, at 1-29.
Therefore, I would conclude that Appellant’s ineffective assistance of
counsel claim fails, as Appellant did not satisfy his burden of production to
demonstrate that his underlying claim has arguable merit.
Within the Majority’s opinion, the Majority alternatively claims that
vacatur is necessary because:
even if the underlying facts of the aggravated assault
conviction would have made it a proper crimen falsi
conviction for impeachment purposes, 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.
Majority Opinion, at *21 (emphasis in original).
____________________________________________
course.” Commonwealth’s Brief at 11 (some capitalization omitted). This is
a correct recitation of the law, as everyone agrees that aggravated assault is
not inherently crimen falsi and, thus, is not automatically admissible as
impeachment evidence. I note that the Commonwealth’s brief does not
discuss the second-step of the admissibility test: whether “the underlying
facts that led to the conviction [reveal that] dishonesty or false statement
facilitated the commission of the crime.” See Davis, 17 A.3d at 396.
Nevertheless, the Commonwealth is the appellee in this case and, as such,
does “not bear the burden of issue preservation.” Heim v. MCARE Fund,
23
A.3d 506, 511 (Pa. 2011); see also See Commonwealth v. Moore,
937
A.2d 1062, 1073 (Pa. 2007) (“an appellate court may affirm a valid judgment
based on any reason appearing as of record, regardless of whether it is raised
by the appellee”).
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With respect, Appellant’s PCRA petition did not raise any claim that
counsel was ineffective for advising him that “the facts of the aggravated
assault conviction” would be admissible for impeachment purposes. Rather,
at all times during the post-conviction collateral proceedings, Appellant simply
claimed that trial counsel was ineffective for advising him not to testify
because the Commonwealth would impeach Appellant with his prior conviction
for aggravated assault. To be sure, Appellant’s PCRA brief expressly declares:
It is [] clear that [trial counsel’s] advice that [Appellant]
should not testify at trial was based upon an erroneous legal
conclusion that [Appellant’s] aggravated assault conviction
was admissible at trial if [Appellant] testified. The
conviction was not for a crime of falsehood nor was it
admissible for any other reason (both of which were
conceded by [trial counsel] and not rebutted by the
Commonwealth). In fact, the Commonwealth in its[] cross-examination of [trial counsel] only attempted to imply that
the conviction may have become admissible if [Appellant]
had opened the door to it by testifying that he was not a
violent person. Such an implication is a theory at best and in
no way can serve as evidence that it would have been a basis
for [Appellant] to not testify. [Trial counsel] in his testimony
explicitly denied that this was even a consideration. Based
upon the foregoing it is not possible for counsel's advice for
[Appellant] to not testify to be advice that was reasonable
and designed to effectuate [Appellant’s] best interest.
Appellant’s Brief in Support of PCRA Relief, 6/11/19, at 6 (emphasis added).
At no point during the PCRA proceedings did Appellant ever claim that
counsel was ineffective for advising him that the jury would hear “the facts of
the aggravated assault conviction.” As such, I believe it is inappropriate for
the Majority to grant Appellant relief on this unraised and unpreserved claim.
See, e.g., Commonwealth v. Hairston, 249 A.3d 1046, 1061-1062 (Pa.
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2021) (“[c]ounsel is presumed to be effective, and the petitioner bears the
burden of proving that counsel's assistance was ineffective by a
preponderance of the evidence. To prevail on a claim of ineffective assistance
of counsel, the petitioner must plead and prove the following three
elements . . .”) (citations omitted) (emphasis added).
Moreover, since I believe Appellant’s remaining claims fail, I would
affirm the PCRA court’s order. I thus respectfully dissent.
Judge Bowes and Judge Stabile join this Dissenting Opinion.
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