J-S06007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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