Com. v. Washington, A.

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

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1 42 Pa.C.S.A. §§ 9541-9546.
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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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:

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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.

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

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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.

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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

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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

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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

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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.

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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.

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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

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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)

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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

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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.

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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

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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.

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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

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8 Based on our disposition, we do not address Appellant’s remaining claims of
trial counsel’s ineffectiveness.

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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

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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

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