J-S20035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDY BUXTON,
Appellant No. 1384 WDA 2015
Appeal from the PCRA Order August 31, 2015
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0001413-2013
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED: March 2, 2016
Appellant, Andy Buxton, appeals from the order denying his first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. Specifically, he alleges that trial counsel was ineffective for
advising him not to testify on his own behalf. We affirm.
Appellant was convicted of aggravated assault and resisting arrest.
The charges related to Appellant’s disorderly conduct during his arrest for
possession of illegal prescription pills. After a bench trial, the court
convicted Appellant of the aforementioned charges on September 3, 2013.
On December 2, 2013, the court sentenced Appellant to an aggregate term
of incarceration of not less than eleven-and-one-half nor more than twenty-
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*
Retired Senior Judge assigned to the Superior Court.
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three months. Appellant did not file post-sentence motions. A panel of this
Court affirmed Appellant’s judgment of sentence on July 28, 2014. (See
Commonwealth v. Buxton, 105 A.3d 803 (Pa. Super. filed July 28, 2014)
(unpublished memorandum)). Appellant did not seek leave to appeal with
our Supreme Court.
On March 31, 2015, Appellant filed a timely first PCRA petition.
Appointed counsel filed an amended petition on June 24, 2015. On August
31, 2015, the court denied the petition after a hearing. Appellant timely
appealed.1
Appellant raises one issue for this Court’s review:
Did the [PCRA] court err in denying Appellant’s PCRA petition
since trial counsel . . . was ineffective for advising Appellant not
to testify at his bench trial, prior to which she told him not to
testify because he would have been impeached by his criminal
record[?]
(Appellant’s Brief, at 3) (some capitalization omitted).
Our standard of review of appeals from PCRA court decisions is well-
settled:
This Court analyzes PCRA appeals “in the light most
favorable to the prevailing party at the PCRA level.”
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super.
2012[, appeal denied, 64 A.3d 631 (Pa. 2013)]. Our “review is
limited to the findings of the PCRA court and the evidence of
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1
Appellant filed a timely Rule 1925(b) statement of errors complained of on
appeal contemporaneously with his notice of appeal. See Pa.R.A.P. 1925(b).
The PCRA court filed an opinion on November 23, 2015. See Pa.R.A.P.
1925(a).
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record” and we do not “disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error.” Id.
Similarly, “[w]e grant great deference to the factual findings of
the PCRA court and will not disturb those findings unless they
have no support in the record. However, we afford no such
deference to its legal conclusions.” Id. (citations omitted).
“[W]here the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. . . .” Id.
Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014). “The
PCRA court’s credibility determinations, when supported by the record, are
binding on this Court.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa.
2011) (citation omitted).
In this case, Appellant alleges that trial counsel rendered ineffective
assistance by advising him not to testify on his own behalf because the
Commonwealth potentially then could have impeached him on his prior
convictions. (See Appellant’s Brief, at 12-17). We disagree.
[T]o succeed on an ineffectiveness claim, a petitioner must
demonstrate that: the underlying claim is of arguable merit;
counsel had no reasonable basis for the act or omission in
question; and he suffered prejudice as a result, i.e., there is a
reasonable probability that, but for counsel’s error, the outcome
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome of the proceeding.
Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015) (citations
omitted). “Counsel’s assistance is deemed constitutionally effective once
this Court determines that the defendant has not established any one of the
prongs of the ineffectiveness test.” Commonwealth v. Rolan, 964 A.2d
398, 406 (Pa. Super. 2008) (citation and emphasis omitted).
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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.
Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa. Super. 2013) (citation
omitted). “A claim of strategic error absent a showing of specific incidents of
counsel’s impropriety will not satisfy this standard.” Commonwealth v.
Thomas, 783 A.2d 328, 334-35 (Pa. Super. 2001) (citation omitted).
Here, Appellant admits that the court conducted a colloquy, after
which he waived his right to testify. (See Appellant’s Brief, at 16). He
argues, however, that his waiver was not voluntary where it was premised
on trial council’s representation that his “criminal record would open the
door to impeachment.” (Id. at 17) (record citation and internal quotation
marks omitted). Appellant maintains that, because his prior convictions did
not involve crimen falsi, counsel’s advice was unreasonable, and her
representation ineffective. (See id. at 12-17). This argument does not
merit relief.
At Appellant’s PCRA hearing, trial counsel testified that she and
Appellant participated in two lengthy meetings in which they discussed the
case, and whether Appellant should testify on his own behalf. (See N.T.
PCRA Hearing, 8/31/15, at 4). She explained that she advised Appellant
against testifying because of his “excitable and combative” demeanor that
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she believed would not help him defend against the aggravated assault
charge. (Id.). Counsel also stated that, if Appellant testified, “the door
could have easily been opened on” his prior convictions for resisting arrest
and aggravated assaults on police officers. (Id. at 5; see id. at 4). Finally,
although Appellant wanted to make a factual argument that the police
officers in this case were lying, counsel believed, based on her experience,
“there was a legal argument to be made that[,] even if the police officers
were believed[,] that his actions didn’t rise to the level of aggravated
assault.” (Id. at 7; see id. at 5). Counsel testified that she told Appellant
“that the decision at the end of the day was his, and [she] told him he had
the right to testify.” (Id. at 5). She expressly confirmed that she never
advised Appellant not to testify because of concerns about prior crimen falsi
convictions. (See id. at 6).
Conversely, Appellant repeatedly testified that counsel told him not to
testify because his “criminal record would be used against [him] to discredit
him[,]” but he could not recall exactly why she advised him in that manner.
(Id. at 10; see id. at 11-12). In considering the testimony presented, the
PCRA court found trial counsel’s version of events to be more credible than
that of Appellant, a finding that we will not disturb. See Spotz, supra at
259; Rigg, supra at 1084; (see also PCRA Court Opinion, 11/23/15, at 8).
Based on the foregoing, we conclude that the PCRA court properly
found that Appellant failed to plead and prove that trial counsel was
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ineffective for advising him to waive his right to testify. See Rigg, supra at
1084. Our independent review of the record confirms that counsel testified
she advised Appellant that he had an absolute right to testify on his own
behalf at trial, and she had a reasonable trial strategy for advising him not
to do so. See Michaud, supra at 869 (finding counsel effective where he
had advised appellant he had right to testify, but had reasonable trial
strategy for advising him not to do so); see also Laird, supra at 978;
Thomas, supra at 334-35. Therefore, Appellant’s issue lacks merit.2
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2
Appellant’s reliance on Commonwealth v. Nieves, 746 A.2d 1102 (Pa.
2000), Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012), and
Commonwealth v. O’Bidos, 849 A.2d 243 (Pa. Super. 2004), appeal
denied, 860 A.2d 123 (Pa. 2004), is not legally persuasive. In Nieves, the
Pennsylvania Supreme Court found that trial counsel was ineffective for
advising the defendant not to testify because he could be impeached on the
basis of his prior convictions, which did not involve crimen falsi. See
Nieves, supra at 1105-06. However, unlike trial counsel here, counsel in
Nieves admitted that he did not have an alternative reasonable trial
strategy for advising the defendant not to testify. See id. Additionally, in
Nieves, the PCRA court credited the hearing testimony of the defendant, not
counsel, which is the opposite of the court’s credibility finding in this case.
See id. Therefore, the facts of Nieves are distinguishable from those
presented here.
Also, neither Ford nor O’Bidos supports Appellant’s ineffectiveness
argument. The Ford Court concluded that the Commonwealth’s incorrect
representation of the potential maximum sentence during the jury trial
waiver colloquy did not render the defendant’s waiver unknowing, where
defense counsel and her supervisor repeatedly instructed him of the correct
minimum sentence he faced if he proceeded to trial and was convicted. See
Ford, supra at 1195. In O’Bidos, this Court held that trial counsel was not
ineffective for advising the appellant not to testify on his own behalf on the
bases “there were issues that could be brought out on cross-examination if
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2016
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(Footnote Continued)
appellant testified, including prior criminal history, other complainants, and
circumstances surrounding his arrest.” O’Bidos, supra at 250.
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