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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
               Appellant                  :
                                          :
                   v.                     :
                                          :
BARRY LEE KAUFFMAN, JR.,                  :
                                          :
               Appellee                   :   No. 143 MDA 2018

               Appeal from the PCRA Order December 22, 2017
                in the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0005881-2014

BEFORE:    BENDER, P.J.E., MCLAUGHLIN, J. and STRASSBURGER,J.*

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

                                                 FILED DECEMBER 03, 2018

      Because the PCRA court erred in granting Kauffman’s PCRA petition, I

would reverse the order of the PCRA court.

      In reviewing an appeal from either the grant or denial of PCRA relief,

“[w]e must examine whether the record supports the PCRA court’s

determination, and whether the PCRA court’s determination is free of legal

error. The PCRA court’s findings will not be disturbed unless there is no support

for the findings in the certified record.” Commonwealth v. Mikell, 968 A.2d

779, 780 (Pa. Super. 2009) (quoting Commonwealth v. Lawrence, 960

A.2d 473, 476 (Pa. Super. 2008) (citations omitted)).

      Here, Kauffman claims that trial counsel was ineffective for misadvising

him regarding his testifying at trial.




* Retired Senior Judge assigned to the Superior Court.
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           “As our Supreme Court explained in Commonwealth v.
      Nieves, [] 746 A.2d 1102 ([Pa.] 2000):
                  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.

      Id. at 1104 (citations omitted).

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa. Super. 2013) (emphasis

added).

      Instantly, Kauffman testified at the PCRA hearing that trial counsel

“advised [him] not to testify on the stand.” N.T., 10/25/2017, at 9. According

to Kauffman, trial counsel advised Kauffman that the Commonwealth was

“going to bring up [his] criminal past.” Id. Kauffman further testified that

trial counsel did not explain what he meant when he said “criminal past.” Id.

Kauffman then testified that had trial counsel not mentioned Kauffman’s

criminal past, he would have testified at trial. Id.

      Trial counsel testified about the reasons he advised Kauffman not to

testify at trial. First, trial counsel stated that he did not believe Kauffman’s

testimony was needed. According to trial counsel, “the case had gone well.”

Id. at 33. In addition, trial counsel testified that he was concerned about how

Kauffman would come across while testifying.           Trial counsel recalled that

Kauffman expressed anger during their discussions and he “was worried about

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cross examination and showing that to the jury.” Id. at 34. With respect to

discussions about Kauffman’s criminal past, trial counsel testified that he did

not recall Kauffman having any crimen falsi convictions, but Kauffman did

have a 1998 indecent assault conviction. Trial counsel testified that based on

his prior experience, he was concerned that if Kauffman testified he would

never do anything assaultive, he would open the door to the Commonwealth

being able to question Kauffman about the prior indecent assault conviction.

However, trial counsel clarified that while that was discussed, it was “not what

[he] based [his] advice on.” Id. at 35.

       After hearing this testimony, the PCRA court concluded that trial counsel

did indeed misadvise Kauffman regarding his testifying at trial.     The PCRA

court stated that Kauffman elected not to testify “based solely on [trial

counsel’s] assertion that if [Kauffman] did testify [he] would be impeached

with his prior criminal record.” PCRA Court Opinion, 12/22/2017, at 15.1 The

PCRA court then went on to conclude that because Kauffman had “no

admissible crimes of dishonesty or false statements that could have been

admissible under Pa.R.E. 609(a) to impeach his credibility,” trial counsel’s

advice that Kauffman’s “prior indecent assault could be used impeach him was

unreasonable.” Id. at 16.



____________________________________________


1 The PCRA court references page 7 of the transcript in its opinion, but
discussion of this issue does not begin until page 9. See N.T., 10/25/2017, at
7, 9.

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      The PCRA court’s conclusions are clearly not supported by the record.

Nowhere in the record did Kauffman state that he did not testify because trial

counsel told him that his prior criminal record could be used for impeachment

purposes. Kauffman testified only that the Commonwealth may ask questions

about his criminal past, not that he could be impeached with his criminal past.

It is well-settled that

             [e]vidence that might otherwise be inadmissible may be
      introduced for some other purpose, particularly where [a
      defendant’s] own testimony “opens the door” for such evidence to
      be used for impeachment purposes. See Pa.R.E. 607(b) (“The
      credibility of a witness may be impeached by any evidence
      relevant to that issue, except as otherwise provided by statute or
      these rules.”). “A litigant opens the door to inadmissible evidence
      by presenting proof that creates a false impression refuted by the
      otherwise prohibited evidence.” Commonwealth v. Nypaver, 69
      A.3d 708, 716–17 (Pa. Super. 2013) (citations omitted). Further,
      it is noteworthy that trial judges retain wide latitude as to the
      scope of cross-examination….

Commonwealth v. Murphy, 182 A.3d 1002, 1005 (Pa. Super. 2018). Based

upon the foregoing, because trial counsel’s advice regarding Kauffman’s

criminal past was not related at all to impeachment, but was actually related

to a legitimate basis for admission, the PCRA court’s conclusions are neither

free of legal error nor supported by the record. Here, even if the PCRA court

believed Kauffman that he did not testify solely because of trial counsel’s

advice regarding his prior criminal past, trial counsel’s advice was not

unreasonable. See Murphy, supra.        Accordingly, the PCRA court erred in

granting relief.




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