J-S29014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    SHAHEED WILLIAMS,

                             Appellant                 No. 2510 EDA 2018


             Appeal from the PCRA Order Entered August 24, 2018
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003684-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                        FILED AUGUST 07, 2019

        Appellant, Shaheed Williams, appeals from the post-conviction court’s

August 24, 2018 order dismissing his petition under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546.           Appellant contends that his trial

counsel acted ineffectively by erroneously advising him that if he testified on

his own behalf, he could be impeached with his prior, non-crimen falsi

convictions for gun-related offenses. After careful review, we affirm.

        We need not set forth the complex factual history underlying Appellant’s

convictions for purposes of addressing the issue he raises on appeal. 1      In

regard to the procedural history of this case, the PCRA court stated:



____________________________________________


1 For a detailed summary of the facts, see PCRA Court Opinion (PCO),
10/29/18, at 2-6.
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        On February 28, 2014, … [Appellant], along with his co-
     defendant[,] Aki Jones, was arrested and charged with Attempted
     Murder, Aggravated Assault, Intimidation of a Witness,
     Conspiracy, and Possession of a Firearm Prohibited (“VUFA
     6105”). Co-defendants Charles Alexander and Troy Cooper were
     subsequently arrested and charged in connection to the instant
     offenses. On June 8, 2015, Alexander and Cooper entered into
     open guilty pleas.1
        1On September 21, 2015, Alexander was sentenced to time
        served to twenty-three months imprisonment, plus five
        years of probation for Intimidation of a Witness and
        Conspiracy. On the same date, Cooper was sentenced to 55
        to 120 months of imprisonment for Conspiracy.

        On June 15, 2015, a jury convicted … [Appellant] of Attempted
     Murder, Aggravated Assault, Intimidation of a Witness,
     Conspiracy, and “VUFA 6105.” On September 21, 2015, after
     completion of Presentence and Mental Health Reports, this [c]ourt
     sentenced … [Appellant] to twenty to forty years[’] imprisonment
     for Attempted Murder,2 concurrent terms of five to ten years for
     Conspiracy and “VUFA 6105,” and a consecutive term of eight to
     sixteen years for Intimidation of a Witness, for a total sentence of
     twenty-eight to fifty-six years of imprisonment.3
        2  The Aggravated Assault       count   merged    with   [the]
        Attempted Murder charge.
        3 Jones was convicted of Attempted Murder, Aggravated
        Assault, Intimidation of a Witness, and Conspiracy. Jones
        received twenty to forty years for Attempted Murder, a
        concurrent term of five to ten years for Conspiracy, and a
        consecutive term of five to ten years for Intimidation of a
        Witness for a total sentence of 25-50 years[’] imprisonment.
        These sentences were imposed consecutive to a three-to-
        six year sentence that Jones was currently serving for
        Possession of a Firearm Prohibited.

        On October 13, 2015, this [c]ourt denied … [Appellant’s] timely
     Post-Sentence Motion. … [Appellant] appealed and on December
     16, 2016, the Superior Court affirmed his judgment of sentence.
     [Commonwealth v. Williams, 159 A.3d 1005 (Pa. Super. 2016)
     (unpublished memorandum)]. On July 27, 2017, the Supreme
     Court of Pennsylvania denied his Petition for Allowance of Appeal.
     [Commonwealth v. Williams, 169 A.3d 1071 (Pa. 2017).]


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          On December 8, 2017, … [Appellant] filed a timely[,] pro se
       []PCRA[] petition, his first. On May 2, 2018, appointed PCRA
       counsel filed a no-merit letter pursuant to [Commonwealth v.
       Turner, 544 A.2d 927 (Pa. 1988), and] Commonwealth v.
       Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)[,] and a Motion
       to Withdraw. On May 4, 2018, after independent review, this
       [c]ourt agreed that the instant petition was meritless and issued
       a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907.[2] On
       June 20, 2018, [Appellant] filed a pro se 907 Response, raising
       four new issues.4 On August 2, 2018, … [Appellant], through
       counsel, filed an Amended Petition. On August 24, 2018, after an
       evidentiary hearing, this [c]ourt dismissed the Petition.
          4 … [Appellant] requested permission to proceed pro se and
          requested a forty-five day continuance to respond to the
          [c]ourt’s 907 Notice. This [c]ourt granted a thirty-day
          continuance.

PCO at 1-2.

       Appellant filed a timely notice of appeal. It does not appear that the

PCRA court ordered him to file a Pa.R.A.P. 1925(b) statement, but it filed a

Rule 1925(a) opinion on October 29, 2018. Herein, Appellant states one issue

for our review: “Was trial counsel ineffective for giving inaccurate advice that

vitiated Appellant’s waiver of his fundamental and personal right to testify in

his own defense?” Appellant’s Brief at 2.

       To begin, we note that:

       Our standard of review of a PCRA court’s denial of petition for
       relief is well-settled. We review an order of the PCRA court to
       determine whether the record supports the findings of the PCRA
       court and whether its rulings are free from legal error. To be
       eligible for PCRA relief, a petitioner must plead and prove, by a
       preponderance of the evidence, that his conviction or sentence


____________________________________________


2  While the court noted in the Rule 907 notice that Appellant’s counsel had
filed a petition to withdraw, the court did not rule on counsel’s motion.

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      resulted from one or more of the reasons set forth in 42 Pa.C.S.[]
      § 9543(a)(2).

                                      ***

            In order to obtain relief under the PCRA premised upon a
      claim that counsel was ineffective, a petitioner must establish
      beyond a preponderance of the evidence that counsel’s
      ineffectiveness so undermined the truth-determining process that
      no reliable adjudication of guilt or innocence could have taken
      place. When considering such a claim, courts presume that
      counsel was effective, and place upon the appellant the burden of
      proving otherwise. Counsel cannot be found ineffective for failure
      to assert a baseless claim.

            To succeed on a claim that counsel was ineffective, [the
      a]ppellant must demonstrate that: (1) the claim is of arguable
      merit; (2) counsel had no reasonable strategic basis for his or her
      action or inaction; and (3) counsel’s ineffectiveness prejudiced
      him.

      Furthermore:

         to demonstrate prejudice, [the] appellant must show there
         is a reasonable probability that, but for counsel’s error, the
         outcome of the proceeding would have been different. When
         it is clear the party asserting an ineffectiveness claim has
         failed to meet the prejudice prong of the ineffectiveness
         test, the claim may be dismissed on that basis alone,
         without a determination of whether the first two prongs
         have been met. Failure to meet any prong of the test will
         defeat an ineffectiveness claim. Counsel is not ineffective for
         failing to raise meritless claims.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (cleaned

up). Additionally,

      [a]s 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

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         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.

Michaud, 70 A.3d at 869 (citations omitted).

      In the case sub judice, Appellant claims that his trial counsel acted

ineffectively by advising him that if he testified on his own behalf at trial, he

could be impeached with his two prior convictions for gun-related offenses.

He contends that his firearm offenses are not crimen falsi crimes and, thus,

they are not admissible as impeachment evidence. See Pa.R.E. 609 (“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.”).

Appellant insists that “[h]e wanted to testify in his own defense, and … he

would have testified that he was innocent of the crimes charged, but for trial

counsel’s erroneous legal advice that he would be subject to cross-

examination and impeachment for prior arrests and/or convictions not

involving crimen falsi.”    Appellant’s Brief at 19.     Consequently, Appellant

claims that his counsel acted ineffectively and he is entitled to a new trial.

      We disagree. In rejecting this claim, the PCRA court reasoned:

             At the August 24, 2018 evidentiary hearing, ... [Appellant]
      testified that trial counsel advised him that if he testified, his prior
      convictions for firearms offenses would be introduced to the jury.
      N.T.[ PCRA Hearing,] 8/24/2018[,] at 22-24. This [c]ourt found
      ... [Appellant’s] testimony incredible. As a preliminary matter,
      this [c]ourt notes that [Appellant] had a juvenile conviction for
      Receiving Stolen Property, which is a crime of crimen falsi,
      pursuant to Pa.R.E. 609, and [Appellant] could have been


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       impeached if he testified at trial.[3] [Additionally,] [a]t the
       evidentiary hearing, trial counsel testified that he advised ...
       [Appellant] not to testify as a matter of strategy, based off the
       belief that he could effectively cross-examine the Commonwealth
       witnesses. Id. at [37-40]. Trial counsel properly advised ...
       [Appellant] that if he testified, he risked “opening the door” to his
       prior [firearm] convictions being admitted.

PCO at 8. The court also stressed that, at trial, it had conducted a thorough

colloquy of Appellant regarding his waiver of his right to testify. Appellant

indicated that he understood the implications of that waiver, and that he had

no questions for the court or counsel. See id. at 9-11.

       Clearly, the PCRA court made a credibility determination to believe trial

counsel’s testimony that he advised Appellant not to testify as a matter of

strategy, and to protect against Appellant’s ‘opening the door’ to the evidence

of his prior gun-related offenses. The court did not believe Appellant’s claim

that counsel told him that his firearm offenses would be automatically

admissible for impeachment purposes. We cannot reverse the PCRA court’s

credibility determinations, which are supported by the record.                 See

Commonwealth v. Dennis, 17 A.3d 297, 305 (“[W]here the record supports

the PCRA court’s credibility determinations, such determinations are binding

on a reviewing court.”) (citation omitted). Moreover, we agree with the court

____________________________________________


3  Rule 609(d) states that, “[i]n a criminal case only, evidence of the
adjudication of delinquency for an offense under the Juvenile Act, 42 Pa.C.S.
§§ 6301 et seq., may be used to impeach the credibility of a witness if
conviction of the offense would be admissible to attack the credibility of an
adult.” Pa.R.E. 609(d). Receiving stolen property is recognized as a crime
involving dishonesty for which an adult defendant can be impeached. See
Commonwealth v. McEnany, 732 A.2d 1263, 1270 n.1 (Pa. Super. 1999)
(citations omitted).

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that   counsel’s   advice   was   legally   sound   and   reasonable.   See

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

(“Evidence that might otherwise be inadmissible may be introduced for some

other purpose, particularly where [the defendant’s] own testimony ‘opens the

door’ for such evidence to be used for impeachment purposes.”) (citation

omitted).    Consequently, we discern no error in the court’s rejecting

Appellant’s ineffectiveness claim and dismissing his petition.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/19




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