J-S59022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 3172 EDA 2018

             Appeal from the PCRA Order Entered October 18, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014716-2010


BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY NICHOLS, J.:                                  FILED DECEMBER 19, 2019

        Appellant Kelvin Outlaw appeals from the order denying his first, timely

Post Conviction Relief Act1 (PCRA) petition. Appellant contends trial counsel

was ineffective for advising him not to testify at trial. We affirm.

        A prior decision from this Court set forth the relevant factual history as

follows:

        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.

                                       *       *       *



____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
J-S59022-19


      During the incident of September 15, 2009, Appellant was
      observed by police in the secure area referred to above, resulting
      in the [b]urglary charge 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.

Commonwealth v. Outlaw, 2090 EDA 2012, at 1-2 (Pa. Super. filed July 23,

2013) (unpublished mem.) (record citation omitted) (quoting Trial Ct. Op.,

11/28/12, at 2).

      The PCRA court’s opinion set forth the subsequent procedural history of

this case as follows:

      On June 20, 2012, following a non-jury trial . . ., [Appellant] was
      convicted of [the charges related to the September 15, 2009
      incident, including] one count each of burglary (18 Pa.C.S. §
      3502), criminal trespass (18 Pa.C.S. § 3503), attempted theft by
      unlawful taking (18 Pa.C.S. § 901) and impersonating a public
      servant (18 Pa.C.S. § 4912).[fn1] That same day, the [trial c]ourt
      imposed consecutive terms of 3 to 6 years of incarceration for the
      burglary charge and 1 to 2 years of incarceration for the
      impersonating a public servant charge, for an aggregate sentence
      of four to eight years’ incarceration. [Appellant] filed a post-
      sentence motion, which the [trial c]ourt denied on June 26, 2012.
      [Appellant] was represented at trial and at sentencing by Todd
      Fiore, Esquire.

         [fn1] The case was tried jointly with charges [for the
         September 12, 2009 incident] set forth at docket number
         CP-XX-XXXXXXX-2011. [Appellant] was found not guilty of
         all charges on that docket. . . .

      On July 23, 2013, the Superior Court affirmed [Appellant’s]
      judgment of sentence, and the Supreme Court denied allocator on
      January 15, 2014. [Appellant] then filed a pro se petition under
      the [PCRA] on April 8, 2014. John P. Cotter, Esquire was
      appointed to represent [Appellant] on December 17, 2014. On
      November 12, 2015, Mr. Cotter filed an amended PCRA petition .
      . . raising the sole claim that trial counsel was ineffective in
      advising [Appellant] to not testify at trial. On May 4, 2017, after


                                     -2-
J-S59022-19


        reviewing      [Appellant’s]    amended       petition   and     the
        Commonwealth’s motion to dismiss, [the PCRA c]ourt ruled that
        the claim set forth in [Appellant’s] petition was without merit. On
        that day, pursuant to Pa.R.Crim.P. 907, [the PCRA c]ourt issued
        notice of its intent to dismiss the petition without a hearing. . . .
        On July 13, 2017, [the PCRA c]ourt entered an order dismissing
        Appellant’s amended petition.

        [Appellant] subsequently appealed the [PCRA c]ourt’s decision to
        dismiss his amended petition. On June 8, 2018, the Superior
        Court vacated the dismissal order and remanded the case for an
        evidentiary hearing in order to give [Appellant] the opportunity to
        prove that counsel had no reasonable strategy or basis for
        advising [Appellant] not to testify. Pursuant to that directive, the
        [PCRA c]ourt held an evidentiary hearing on October 18, 2018.
        Both [Appellant] and his trial attorney, Todd Fiore, Esquire,
        testified. That same day, after issuing findings of fact and
        conclusions of law, the [PCRA c]ourt entered an order again
        dismissing [Appellant’s] amended petition.

PCRA Ct. Op., 12/27/18, at 1-2 (record citations and some capitalization

omitted).

        Appellant timely filed a notice of appeal and a Pa.R.A.P. 1925(b) concise

statement. The trial court filed a responsive opinion on December 27, 2018,

concluding that trial counsel provided credible testimony “and established that

his advice to [Appellant] that he not testify was completely reasonable.” Id.

at 6.

        Appellant now raises one question for this Court’s review:

        Did the [PCRA] court err in denying Appellant a new trial when
        Appellant showed that trial defense counsel was ineffective for
        vitiating Appellant’s Constitutional right to testify in his own
        defense at trial?

Appellant’s Brief at 2.




                                        -3-
J-S59022-19



      Appellant contends that trial counsel advised him not to testify at trial,

and trial counsel’s advice “was not reasonable because . . . only [Appellant’s]

testimony could have established his innocence.” Id. at 8. Appellant relies

on his own PCRA hearing testimony that trial “counsel did not give [Appellant]

any reasons for not testifying except for the fact that counsel had some

agreement with the Commonwealth that did not appear on the record and did

not make sense to [Appellant].” Id. Appellant claims that when he pressed

trial counsel for a specific reason why he should not testify, trial counsel

merely “said he did not think it was a good idea. . . .” Id.

      Appellant acknowledges trial counsel’s PCRA hearing testimony “that he

recommended that [Appellant] not testify because of his numerous crimen

falsi convictions.”   Id.   Appellant insists, however, that “[t]hree of these

convictions were allowed as evidence against [Appellant] at trial,” thereby

rendering trial counsel’s advice “so unreasonable that it vitiated [Appellant’s]

knowing and intelligent decision not to testify at trial.” Id. at 8-9. Based

upon the foregoing, Appellant maintains that this Court must grant relief in

the form of a new trial. Id. at 10.

      Our review of the denial of a PCRA petition is limited to the examination

of “whether the PCRA court’s determination is supported by the record and

free of legal error.”   Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.

Super. 2014) (quotation marks and citation omitted).           “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.”    Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.

                                      -4-
J-S59022-19



2014) (citation omitted). We review “the PCRA court’s legal conclusions de

novo.” See Miller, 102 A.3d at 992 (citation omitted).

      We    presume     that   the    petitioner’s   counsel   was    effective.

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). To establish

a claim of ineffectiveness, a petitioner “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.” Commonwealth

v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted).

      A petitioner must establish (1) that the underlying claim has arguable

merit; (2) that counsel lacked a reasonable basis for his action or inaction;

and (3) but for the act or omission in question, the outcome of the proceedings

would have been different. Commonwealth v. Washington, 927 A.2d 586,

594 (Pa. 2007). “A claim of ineffectiveness may be denied by a showing that

the petitioner’s evidence fails to meet any of these prongs.”      Id. (citation

omitted).

      “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.”

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

omitted).

      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


                                     -5-
J-S59022-19


      vitiate a knowing and intelligent decision to testify on his own
      behalf.

Id. (citation omitted).

      Instantly, Appellant and trial counsel both testified at the PCRA hearing

regarding the circumstances surrounding Appellant’s decision not to testify at

trial. Appellant testified that he discussed the matter with trial counsel on

multiple occasions, and he always expressed his desire to testify at trial. See

N.T. PCRA Hr’g, 10/18/18, at 10, 13. One of Appellant’s conversations with

trial counsel occurred on June 20, 2012, during a recess at trial. Id. at 12-

13. Appellant described the conversation as follows:

      [PCRA Counsel:] What was the substance of your discussion as far
      as what you wanted to do?

      [Appellant:] Well, I told [trial counsel] that I wanted to testify,
      and he said, as we explained before trial and we agreed to take a
      bench trial, the Commonwealth agreed to withdraw or ungrade
      charges for me to take a bench trial on the assumption of me not
      taking the stand. And I didn’t understand that, he didn’t give me
      an explanation, and we went back out, sat back down at the table.

      [PCRA Counsel:] What did he tell you about whether you should
      testify or not? What was his advice?

      [Appellant:] He said it’s not a good idea.

                                  *    *    *

      THE COURT: Did you just say that [trial counsel] told you there
      was an agreement that was unstated, that you would not testify
      in exchange for charges being dropped?

      [Appellant:] Yes. Before trial, [trial counsel] came in the back and
      he said the Commonwealth agreed to dismiss charges on the
      burglary case and the robbery case[.]



                                      -6-
J-S59022-19



Id. at 13-14. The PCRA judge, who also served as the trial judge, interjected

again, emphasizing that no one had informed him about an agreement to

withdraw certain charges in exchange for Appellant’s decision to proceed to a

bench trial and not to testify. Id. at 14-15.

       Following Appellant’s testimony, trial counsel denied the existence of

any agreement with the Commonwealth.                   Id. at 37.   Nevertheless, trial

counsel confirmed that he had advised Appellant not to testify at trial. Id. at

34. Trial counsel testified regarding the basis for his advice as follows:

       [Trial Counsel:] Well, there were two reasons why I didn’t think it
       was in his best interest to testify. The first was, there was a litany
       of crimen falsi cases, convictions that were not coming in as other
       acts. There were cases that were coming in as other acts because
       of the nature of the charges.[2] But there were other cases,
       particularly several cases from Delaware County, that were crimen
       falsi convictions, that I did not want His Honor to know about
       during the trial, absolutely.

       [PCRA Counsel:] Any other reason that you didn’t want him to
       testify?

       [Trial Counsel:] Yes, yes, absolutely. I was convinced, and I
       believe His Honor was as well, that my client was not guilty of the
       second case [relating to the separate incident on September 12,
       2009].

                                       *       *   *

       And even with the alibi witnesses, the victim in that case pointed
       out my client and said he was the person that victimized her. So
____________________________________________


2 “During pretrial motions, the Commonwealth identified sixteen incidents
during which Appellant impersonated a police officer; three were in person
and thirteen were on the telephone. At trial, the Commonwealth proffered
testimony detailing the three in-person impersonations.” Outlaw, 2090 EDA
2012, at 5-6 (record citation omitted).

                                           -7-
J-S59022-19


      even with alibi witnesses, it’s never a guarantee. And I didn’t
      want to open my client up to cross-examination on that case
      because that case involved a sexual component and a robbery,
      and if my client would have been found guilty of that case, he
      would have probably still been reporting as a sex offender.

      And with all of those other crimen falsi cases that were not coming
      in, if he would have testified and His Honor didn’t believe him,
      then I feel, I felt that there was a possibility that His Honor could
      have, even with alibi witnesses, could have found my client guilty
      based on credibility and based on the prior crimen falsi
      convictions.

Id. at 34-35.

      When asked about whether he provided Appellant with a detailed

explanation about the reasons why he should not testify, trial counsel stated:

      I don’t have a specific recollection. I probably had over ten
      thousand cases in my career. And since then, I probably tried
      thousands. But I was well-trained as a former public defender,
      and I would have never not told my client why I didn’t want him
      to testify. I don’t believe I’ve ever not explained my reasoning for
      that since it’s an absolute right. I would have definitely explained
      to him that I didn’t want him to open himself up for those other
      cases.

Id. at 35-36.

      Significantly, the PCRA court found trial counsel presented credible

testimony to establish that his advice to Appellant was reasonable. See PCRA

Ct. Op. at 6. We are bound by the PCRA court’s credibility determinations.

See Commonwealth v. Montalvo, 205 A.3d 274, 290 (Pa. 2019) (stating

“that a PCRA court’s credibility findings are to be afforded great deference and

where, as here, they are supported by the record, such determinations are

binding on an appellate court”). On this record, Appellant failed to establish

that trial counsel was ineffective in his counseling of Appellant on his right to

                                      -8-
J-S59022-19



testify. See Miller, 102 A.3d at 992; Michaud, 70 A.3d at 869. Accordingly,

Appellant is not entitled to relief.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/19




                                       -9-
