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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KELVIN OUTLAW :
:
Appellant : No. 2386 EDA 2017
Appeal from the PCRA Order July 13, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014716-2010
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 08, 2018
Kelvin Outlaw appeals from the July 13, 2017 order denying him PCRA
relief. We vacate the order and remand for an evidentiary hearing.
The facts giving rise to the underlying convictions of burglary and
impersonation of a public servant were summarized by this Court on direct
appeal:
The instant case involved two criminal episodes in which
Appellant was charged with, inter alia, improperly identifying
himself as a police officer and frisking a citizen, and then, three
days later, unlawfully entering a secure area of the 18th Police
District in Philadelphia by employing a secure pass code
available only to police personnel. These two incidents took
place on September 12, 2009 and September 15, 2009,
respectively. During the incident of September 12, 2009
Appellant, under the guise of legally performing a stop and frisk,
fondled the breasts, buttocks, and vaginal area of the
complainant before allowing her to leave. Soon after, she
discovered that some of her belongings had been removed from
her person during the incident. During the incident of
September 15, 2009, Appellant was observed by police in the
secure area referred to above, resulting in the Burglary charge
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against him. A subsequent search of Appellant's car revealed
the presence of several items of police attire, and other police
paraphernalia, all of which had been stored in the secure area.
These two incidents were consolidated for trial.
Commonwealth v. Outlaw, 2013 Pa. Super. Unpub. LEXIS 4458, *1-2
(Pa.Super. 2013) (citations to record omitted).
At the non-jury trial, Appellant proceeded on an alibi theory, and he
presented several witnesses who placed him at a party during the
commission of the September 12, 2009 offenses. The court found Appellant
guilty, and sentenced to three to six years of incarceration for burglary and a
consecutive term of one to two years imprisonment for impersonating a
public servant. Following denial of his motion for reconsideration, Appellant
filed a timely appeal to this Court challenging a pretrial evidentiary ruling.
This Court denied relief, and Appellant’s petition for allowance of appeal was
denied on January 15, 2014. See Commonwealth v. Outlaw, 82 A.3d
1075 (Pa.Super. 2013), appeal denied 84 A.3d 1063 (Pa. 2014).
Appellant timely filed a pro se PCRA petition on April 8, 2014. Counsel
was appointed and he filed an amended petition on Appellant’s behalf.
Appellant alleged therein that trial counsel was ineffective for advising him
not to testify at trial. The PCRA court denied the petition after providing
Pa.R.Crim.P. 907 notice of its intent to dismiss without an evidentiary
hearing, and Appellant timely appealed. Appellant presents one issue for
our review: “Did the trial court err in denying [A]ppellant an evidentiary
hearing when the [A]ppellant raised a material issue of fact that trial defense
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counsel was ineffective for vitiating the [A]ppellant’s [c]onstitutional right to
testify in his own defense at trial?” Appellant’s brief at 2.
In reviewing the denial of PCRA relief, we must determine “whether
the PCRA court’s determination is supported by the evidence of record and
free of legal error.” Commonwealth v. Holt, 175 A.3d 1014, 1017
(Pa.Super. 2017). Our scope of review “is limited to the findings of the PCRA
court and the evidence of record, viewed in the light most favorable to the
prevailing party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294,
311 (Pa. 2014) (citation omitted). “We are bound by the PCRA court’s
credibility determinations so long as they are supported by the record, but
we review the court’s legal conclusions de novo.” Commonwealth v.
Miller, 102 A.3d 988, 992 (Pa.Super. 2014).
Appellant alleges that the PCRA court erred in failing to conduct an
evidentiary hearing on his claim that counsel was ineffective for advising him
not to testify at trial. The law is well settled that a PCRA petitioner is not
entitled as a matter of right to an evidentiary hearing. Miller, supra at
992. “The Rules of Criminal Procedure provide that a PCRA court judge is to
hold a hearing where a PCRA petition raises any material issues of fact.
Pa.R.Crim.P. 908(A)(2).” Commonwealth v. Santiago, 855 A.2d 682, 691
(Pa. 2004). “It is within the PCRA court’s discretion to decline to hold a
hearing if the petitioner’s claim is patently frivolous and has no support in
the record or other evidence.” Id. (quoting Commonwealth v. Wah, 42
A.3d 335, 338 (Pa.Super. 2012)). Our role on appeal is to determine
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whether the PCRA court correctly determined that there were no genuine
issues of material fact that necessitated a hearing. Id.
In order to prove ineffective assistance of counsel, a defendant must
satisfy all three prongs of the Strickland/Pierce1 ineffectiveness test.
Commonwealth v. Williams, 9 A.3d 613, 617 (Pa. 2010). He must
establish that his underlying claim has arguable merit, that counsel had no
reasonable basis for his or her action or inaction, and that he suffered
prejudice. “He may prevail only if he pleads and proves that his conviction
or sentence resulted from ineffective assistance of counsel that, under the
circumstances, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have occurred.” Commonwealth v.
Laird, 119 A.3d 972, 978 (Pa. 2015); see 42 Pa.C.S. §9543(a)(2)(ii.
“Where matters of strategy and tactics are concerned, ‘a finding that a
chosen strategy lacked a reasonable basis is not warranted unless it can be
concluded that an alternative not chosen offered a potential for success
substantially greater than the course actually pursued.’” Spotz, supra at
311-12 (Pa. 2014). To demonstrate prejudice, a petitioner must show that
there is a reasonable probability that, but for counsel's actions or inactions,
the result of the proceeding would have been different. Laird, supra (citing
Strickland v. Washington, 466 U.S. 668 (1984)).
____________________________________________
1 Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987).
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In his amended PCRA petition, Appellant pled that “Counsel advised
[him] not to testify even though [he] was innocent of the charges, wanted to
testify, and could have testified to his innocence of the crimes.” Amended
PCRA Petition, 11/12/15, at 2. He alleged further that, “[b]ased on this
erroneous advice of counsel, he did not testify at trial.” Id. He argues on
appeal that counsel’s advice was unreasonable and that it vitiated his
constitutional right to testify at trial. He maintains that the PCRA court
abused its discretion in denying him an evidentiary hearing to prove
counsel’s ineffectiveness.
The Commonwealth counters that the decision whether or not to
testify is the defendant’s decision after consultation with counsel.
Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa.Super. 2013). In order
to state a claim of ineffectiveness with regard to the defendant’s decision not
to testify, the Commonwealth contends that he “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 not to
testify on his own behalf.” Id. Where, however, a defendant made a
knowing, voluntary, and intelligent waiver, he cannot later claim that
counsel was ineffective. Commonwealth v. Lawson, 762 A.2d 753, 756
(Pa.Super. 2000). The Commonwealth points out that Appellant did not
allege that counsel interfered with his right to testify, only that his advice in
this regard was erroneous.
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The PCRA court found no arguable merit in Appellant’s ineffective
assistance claim. It noted that the trial court conducted an extensive
colloquy on Appellant’s right to testify, and that Appellant told the court that
he had been advised of all options, that he consulted with counsel, and that
he voluntarily made the decision not to testify. The court concluded that he
could not “now predicate error on a claim that is refuted by his own sworn
testimony during the trial.” PCRA Court Opinion, at 4 (citing
Commonwealth v. Rigg, 84 A.3d 1080, 1086 (Pa.Super. 2014)). Since
trial counsel could not have been ineffective, the court concluded that an
evidentiary hearing would serve no purpose.
We have reviewed the record. At trial, Appellant waived his right to
testify after consultation with and reliance upon the advice of counsel.
Appellant’s responses to the court’s colloquy, however, do not foreclose him
from subsequently challenging the effectiveness of that advice. See
Commonwealth v. Nieves, 746 A.2d 1102 (Pa. 2000) (recognizing limited
instances where colloquy does not preclude trial counsel from being held
ineffective based on erroneous advice provided to client about not
testifying). In Nieves, trial counsel confirmed at an evidentiary hearing that
although Appellant wanted to testify, he advised him not to do so because
he could be impeached by his criminal record. Appellant contended this
advice was clearly unreasonable because his prior convictions would not
have been admissible impeachment evidence because they did not involve
dishonesty or false statement. Since the trial court credited appellant’s
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testimony that his decision not to testify was based on this erroneous
advice, appellant’s decision not to testify was not knowing or intelligent.
See also Commonwealth v. Walker, 110 A.3d 1000 (Pa.Super. 2015)
(remanding for an evidentiary hearing to determine whether appellant’s
claim that counsel incorrectly advised him that prior convictions could be
used to impeach him if he testified had arguable merit).
Appellant alleged that counsel’s unreasonable advice vitiated his
waiver. He pled that he wanted to testify, and that he would have testified
that he was innocent of the crimes charged, but counsel erroneously advised
him not to testify. If Appellant could prove that there was no reasonable
basis for counsel’s advice or strategy, an otherwise valid waiver would be
negated. Michaud, supra.
Appellant’s claim was not a mere boilerplate allegation of no
reasonable basis as in Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa.
2011). We find that the PCRA court did not give Appellant the opportunity
to prove that counsel had no reasonable strategy or basis for advising him
not to testify when it declined to schedule an evidentiary hearing. In most
of the cases relied upon by the Commonwealth and the trial court, it was
only after an evidentiary hearing that the PCRA court concluded that trial
counsel had a reasonable strategy for advising his client not to testify. See
e.g. Michaud, supra (PCRA court credited trial counsel’s testimony at
evidentiary hearing that he and appellant discussed his right to testify
multiple times, that he advised appellant why he believed he should not
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testify, and appellant agreed and stated he did not want to testify);
Commonwealth v. Hall, 701 A.2d 190 (Pa. 1997) (trial court found that
appellant’s waiver of right to testify was knowing and intelligent after
evidentiary hearing on his claim that counsel was ineffective in advice
given); Commonwealth v. Neal, 618 A.2d 438 (Pa.Super. 1992) (after
evidentiary hearing, court found that appellee’s decision to forego testifying
on his own behalf was not an informed decision reached after full
consultation with counsel.).
For the foregoing reasons, we vacate the order and remand for an
evidentiary hearing on the ineffectiveness issue raised in the amended PCRA
petition.
Order vacated. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/18
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