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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY McLAUGHLIN, J.:                         FILED MARCH 06, 2019

      The Commonwealth appeals from the order granting Barry Lee

Kauffman, Jr.’s Amended Petition for Post-Conviction Relief, 42 Pa.C.S.A. §

9541-46. We conclude the PCRA court did not err when it found that counsel

was ineffective when advising Kauffman that his prior non-crimen falsi

convictions would be admitted if he testified. We affirm.

      The trial court set forth the following factual history:

          On July 26, 2014, Michael and Holly Boyd (collectively, “the
          victims”) returned to their home after spending the day with
          their family at a local amusement park. Upon exiting their
          vehicle, [Kauffman] and Michael Boyd engaged each other
          in a verbal altercation.5 The victims recalled [Kauffman]
          yelling “obscenities” at them for testifying against him in a
          civil proceeding a few months prior. The victims noted
          [Kauffman’s] speech was slurred and he swayed as he tried
          to maintain his balance.
             5[Kauffman] initially related to Officer Biesecker that
             Michael Boyd initiated the yelling, but told the officer
             he couldn’t recall the contents of the argument.
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         [Kauffman] then walked off of his porch into the victims’
         driveway and approached Michael Boyd face-to-face.
         Michael Boyd testified that [Kauffman] yelled he would
         “burn our fucking house down with our child in it.” Holly
         Boyd also testified that [Kauffman] threatened to “burn your
         fucking house down with your family in it.” [Kauffman]
         made this threat while Holly Boyd was holding the victims’
         four year old son, Mikey. The victims’ son was “crying and
         upset and asked . . . if [Kauffman] was going to kill [them]
         by burning [their] house down.” Michael Boyd testified that
         he told [Kauffman] he had posted “no trespassing” signs on
         his property, and he was going to call the police. Holly
         Boyd’s testimony indicated that her husband also told
         [Kauffman] to “please leave him and his family alone.”6 The
         victims then went inside their home to call the police. The
         responding officers testified that, upon making contact with
         [Kauffman], he had glassy, bloodshot eyes, slurred speech,
         and poor balance.
            6 Holly Boyd’s testimony conflicts with her husband’s
            testimony in so far as it relates to the timing of these
            statements. Michael Boyd testified that his statement
            occurred when he and [Kauffman] were face-to-face
            [sic]. Holly Boyd’s testimony indicates these
            statements were made while [Kauffman] was still on
            his front porch.

Opinion in Support of Order Granting Defendant’s PCRA Petition, filed Dec. 22,

2017, at 2-3 (“PCRA Ct. Op.”). At trial, following an on-the-record colloquy,

Kauffman waived his right to testify. N.T., 7/20/15, at 94-96.

      A jury convicted Kauffman of terroristic threats, 18 Pa.C.S.A. §

2706(a)(1), and the trial court found Kauffman guilty of public drunkenness,

18 Pa.C.S.A. § 5505. The trial court sentenced Kauffman to six to 12 months’

imprisonment for the terroristic threats conviction. This Court affirmed the

judgment of sentence for terroristic threats, but vacated the conviction for

public drunkenness, finding the Commonwealth failed to present sufficient



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evidence     that   Kauffman      was    in    a   public   place   while   intoxicated.1

Commonwealth v. Kauffman, No. 1632 MDA 2015, at 10-12 (Pa.Super.

filed July 22, 2016) (unpublished memorandum).

       On March 21, 2017, Kauffman filed a petition under the PCRA. The PCRA

court appointed counsel, who filed an amended petition, alleging, among other

things, that trial counsel was ineffective for advising Kauffman not to testify.

The PCRA court held a hearing, at which both Kauffman and trial counsel

testified.

       Kauffman testified that his trial counsel advised him not to testify

because, if he testified, the Commonwealth would “bring up [his] criminal

past,” N.T., 10/25/17, at 9, which included a 1998 conviction for indecent

assault, id. at 36. He stated counsel did not explain the statement and “just

said they were going to bring up my criminal past and ask me questions about

my criminal past.” Id. at 9. Kauffman further stated that he did not tell the

victims that he would burn down their trailer, id. at 11, and would have

testified at trial if counsel had not advised him that the Commonwealth would

____________________________________________


1The trial court stayed Kauffman’s sentence pending appeal. He began serving
the sentence on February 13, 2017, see Order, filed Feb. 8, 2017, and it
appears he completed the sentence on February 12, 2018. See York County
Pre-Parole Investigation and Order. Kauffman was on parole at the time of the
PCRA hearing. N.T., 10/25/17, at 5. The PCRA court granted relief on
December 22, 2017. Kauffman proved that he was serving a term of parole at
the time the PCRA court granted relief, see 42 Pa.C.S.A. § 9543(a)(1), and
we have jurisdiction to entertain this Commonwealth appeal from the order
granting relief. Commonwealth v. Ward-Green, 141 A.3d 527, 528 n.1
(Pa.Super. 2016).


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use his criminal past, id. at 9-10. Further, he agreed that when he waived his

right to testify at trial, he based the decision “upon [trial counsel’s] advice

that if [he] testified, [his] crimes of dishonesty, [his] criminal past, would be

told to the jury[.]” Id. at 17.

      Trial counsel testified that he advised Kauffman not to testify because

he did not believe the testimony was needed, as they “had gotten

[Kauffman’s] version of events out through . . . the [victims’]” testimony, and

because he was “concerned about how [Kauffman] would testify, given the

anger he had shown towards [counsel] in [the] discussions and about this

incident.” Id. at 33-34. Counsel was worried about cross-examination and

about the jury seeing the anger. Id. at 34. When asked whether he advised

Kauffman not to testify because his prior criminal conviction would be brought

out by the Commonwealth, counsel stated:

         I don’t remember there being any crimen falsi on there. I
         believe there was an assault charge, and so I believe my –
         in my speaking with Mr. Kauffman is, if you get up there and
         say that you would never do anything like this, prior
         assaultive behavior could be brought in, and that’s a prior
         record that could come in. So I’m pretty sure it was
         discussed, but that’s not what I based my advice on.

Id. at 35 (italics added). Counsel further stated that he did not conduct legal

research as to whether an indecent assault from 15 years ago would “open

the door.” Id. at 36.

      The PCRA court granted the PCRA petition, and the Commonwealth filed

a timely Notice of Appeal.



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      The PCRA court found Kauffman established his counsel was ineffective

for advising him his prior conviction could be used during cross-examination

if he testified. PCRA Ct. Op. at 15-17. The court noted that trial counsel stated

that he advised Kauffman not to testify because he “believed the case had

gone well and [Kauffman’s] testimony was not needed, and because he was

concerned how [Kauffman] would testify, given the aggressive nature he had

witnessed from [Kauffman].” Id. at 15. Trial counsel, however, also

“concede[d] that he remembered [Kauffman] having a sexual assault charge

on his record and . . . recalled telling [Kauffman] that if [Kauffman] elected to

take the stand and testify ‘that [he] would never do anything like this, [then

the] prior assaultive behavior could be brought in.’” Id. at 15-16.

      The PCRA court concluded that trial counsel “erroneously advised

[Kauffman] that his prior indecent assault [conviction] could be used to

impeach him” and that the advice was “unreasonable.” Id. at 16. It further

found that Kauffman was credible when he stated that he based his decision

not to testify “solely on [trial counsel’s] faulty advice,” noting Kauffman

testified that “it was the fear of the Commonwealth cross-examining him

regarding his prior criminal record that ultimately provoked his decision to

waive his right to testify.” Id. at 16-17.

      We remanded to the PCRA court for issuance of a supplemental

Pennsylvania Rule of Appellate Procedure 1925(a) opinion to determine the

basis for the PCRA court’s finding of ineffectiveness, that is, whether the PCRA

court based its finding of ineffectiveness on a belief that non-crimen falsi

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convictions could never be admitted, or on a finding that counsel told

Kauffman that his prior conviction could be admitted regardless of his

testimony. Commonwealth v. Kauffman, No. 143 MDA 2018 (Pa.Super.

filed Dec. 3, 2018) (unpublished memorandum).

      The PCRA court issued a supplemental opinion explaining that it believed

that non-crimien falsi convictions are admissible if a defendant opens the door

through evidence of his own good character as a peaceable or law-abiding

person. Supplemental Statement of Lower Court Pursuant to Pa.R.A.P.

1925(a), filed Jan. 14, 2019, at 2-3 (“Supplemental 1925(a) Op.”). It further

explained that it credited Kauffman’s testimony that his counsel advised him

that the Commonwealth would ask him about his criminal past, and that

counsel did not explain the circumstances under which the Commonwealth

could question him about his past, that is, counsel did not inform him his past

would be admissible only if he testified as to his good character. Id. at 3. The

court further noted that trial counsel’s testimony corroborated Kauffman’s

testimony, as counsel testified he discussed Kauffman’s prior conviction for

indecent assault and that the “prior assaultive behavior could be brought in.”

Id. Counsel also admitted he did not research whether a 15-year-old prior

conviction for indecent assault could be “brought up” by the Commonwealth.

Id. at 4.

      The Commonwealth raises the following issue on appeal:

            Did the PCRA court err when it granted [Kauffman’s] PCRA
            Relief petition on the basis that [Kauffman] had ineffective
            assistance of counsel when Defense Counsel advised him

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         not to testify based on Defense Counsel’s belief [Kauffman]
         would make a poor witness, [Kauffman’s] testimony was not
         needed, and [Kauffman’s] prior criminal history could be
         introduced by the prosecution to rebut any evidence of
         [Kauffman’s] good character or reputation?

Commonwealth’s Br. at 4.

      When reviewing the grant of a PCRA petition, we examine the PCRA

court’s “findings of fact to determine whether they are supported by the

record, and . . . its conclusions of law to determine whether they are free from

legal error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)).

      To prevail on an ineffectiveness claim, a petitioner must establish: “(1)

his underlying claim is of arguable merit; (2) counsel had no reasonable basis

for his action or inaction; and (3) the petitioner suffered actual prejudice as a

result.” Id. (citing Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010)).

“Counsel is presumed effective” and the petitioner bears the burden of

demonstrating ineffectiveness. Id. (quoting Colavita, 993 A.2d at 886).

      “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. Nieves, 746 A.2d 1102, 1104 (Pa. 2000). “[T]o 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. Where a petitioner claims trial counsel’s ineffectiveness


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caused him to not testify in his defense, the petitioner establishes the

prejudice prong of an ineffectiveness claim by proving that he would not have

waived his right to testify “absent counsel’s ineffectiveness.” Commonwealth

v. Walker, 110 A.3d 1000, 1005 (Pa.Super. 2015).

      Here, Kauffman maintained that trial counsel’s advice was unreasonable

and, therefore, his waiver was not knowing and intelligent, and that he would

not have waived his right to testify absent the advice.

      In general, “[e]vidence of a crime, wrong, or other act is not admissible

to prove a person’s character in order to show that on a particular occasion

the person acted in accordance with the character.” Pa.R.Evid. 404(b)(1).

However, “[f]or the purpose of attacking the credibility of any witness,

evidence that the witness has been convicted of a crime . . . must be admitted

if it involved dishonesty or false statement” and it is not more than ten years

old. Pa.R.Evid. 609(a), (b). Further, a defendant’s prior non-crimen falsi

convictions are admissible on cross-examination of a defendant “to repudiate

specific evidence of good character.” Commonwealth v. Hernandez, 862

A.2d 647, 650 (Pa.Super. 2004) (quotation marks omitted); see also

Commonwealth v. Crosley, 180 A.3d 761, 770 (Pa.Super. 2018) (holding

defendant’s prior aggravated assault conviction where he had attacked guard

with sharp object admissible at murder trial because he testified at murder

trial that he had never carried weapon before). Specifically, the relevant

statute provides that a defendant who testifies in his own defense may not be

asked questions regarding convictions or charges for “any offense other than

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the one wherewith he shall then be charged,” or that tend to show he has a

bad character or reputation unless:

          (1) he shall have at such trial, personally or by counsel,
          asked questions of the witness for the prosecution with a
          view to establish his own good reputation or character, or
          has given evidence tending to prove his own good character
          or reputation[.]

42 Pa.C.S.A. § 5918(1).

       In Nieves, trial counsel informed the defendant that his convictions

would be used to impeach him, even though the defendant’s criminal record

did not include crimen falsi convictions. Nieves, 746 A.2d at 1104-05. The

Pennsylvania      Supreme      Court    stated   that   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.”

Id. at 1105. The Court concluded the advice “vitiate[d] [defendant’s] knowing

and intelligent decision not to testify,” vacated the judgment of sentence, and

remanded for a new trial. Id. at 1106.

       Kauffman, who had a prior indecent assault conviction, did not testify at

trial. It is undisputed that Kauffman’s prior conviction is not a crimen falsi

conviction that occurred within the past ten years.2 PCRA Court Op. at 16;

____________________________________________


2 There is mention at the hearing of a 1996 conviction for receiving stolen
property. There is no argument at the PCRA hearing or on appeal that this
would have been admissible under Pennsylvania Rule of Evidence 609(b). See
Pa.R.Evid. 609(b) (limiting use of crimen falsi conviction if conviction more
than ten years old).

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Commonwealth’s Br. at 8. At the evidentiary hearing, Kauffman testified that

his counsel advised him not to testify because “they’re going to bring up my

criminal past,” N.T., 10/25/17, at 9, and stated counsel did not explain why

the Commonwealth would raise his past. Id. He testified that he would have

testified if his counsel had not informed him that the Commonwealth would

question him about his prior conviction. Id. at 9-10.

      The PCRA court credited this testimony and concluded that counsel

informed Kauffman his non-crimen falsi convictions would be used on cross-

examination, without explaining they could be used only if Kauffman testified

as to his good character or reputation for peacefulness. Further, although trial

counsel testified his advice to not testify was based on other factors, the PCRA

court credited Kauffmans’ testimony that he based his decision not to testify

on the advice that his prior criminal history would be admissible. We conclude

the record supports these findings.

      Because counsel advised Kauffman his non-crimen falsi convictions

could be used during cross-examination without explanation, and because

Kauffman would have testified absent counsel’s inaccurate advice, we

conclude that the PCRA court did not err as a matter of law when it found trial

counsel ineffective. Nieves, 746 A.2d at 1104-06. We therefore affirm the

trial court’s order granting Kauffman’s PCRA petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/06/2019




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