Commonwealth v. Washington

269 A.3d 1255

COMMONWEALTH of Pennsylvania, Appellee

v.Akeem Kevin WASHINGTON, Appellant

No. 1655 MDA 2019

Superior Court of Pennsylvania.

Argued November 30, 2021

Filed: February 1, 2022

William G. Braught, Carlisle, for appellant.

Cody L. Wade, Lancaster, for appellee.

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE, J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J.

OPINION BY KING, J.:

Appellant, Akeem Kevin Washington, appeals from the order entered in the Lancaster County Court of Common Pleas, which denied his second petition filed pursuant to the Post Conviction Relief Act ("PCRA").¹ In this appeal, we are asked to decide, inter alia , whether trial counsel provided erroneous advice to Appellant concerning his prior convictions, which interfered with Appellant's constitutional right to testify in his own defense at trial. For the following reasons, we agree with Appellant that trial counsel's advice to Appellant not to testify because the jury would hear not only that he had a prior conviction for aggravated assault, but also about the details of that crime, was improper legal advice such that Appellant should be afforded a new trial. Therefore, we reverse the order denying PCRA relief, vacate the judgment of sentence, and remand for a new trial.

I. Facts and Procedural History

The relevant facts and procedural history of this case are as follows. In the early morning hours of December 28, 2014, police observed a disturbance outside of a Lancaster City restaurant and lounge. The officers made contact with the involved parties, which included Appellant. Appellant became combative with the officers, yelled profanities, and refused arrest, causing the officers to use a taser on Appellant to control the situation. Ultimately, the officers arrested Appellant and transported him to the police station. Following his arrest on charges of terroristic threats, resisting arrest, and related offenses, Appellant was remanded to the Lancaster County Prison ("LCP"). While incarcerated, Appellant allegedly told his cellmate, Tremayne Jones, that he wanted to kill the officers involved in his arrest. According to Mr. Jones, Appellant solicited him in plotting to kill the officers. Mr. Jones reported Appellant's plot to authorities, and the Commonwealth charged Appellant at a separate docket with four counts of criminal solicitation to commit homicide. Appellant proceeded to a jury trial on the solicitation docket on August 10, 2015.

The PCRA court explained in its opinion:

[Mr.] Jones was the main witness for the Commonwealth at trial. He testified that on December 29, 2014, he gave an accurate and truthful statement to a corrections officer at LCP outlining his conversations with [Appellant] while housed with him in a cell at LCP on December 28 and 29, 2014. In this statement, [Mr.] Jones revealed how [Appellant] had solicited his help in murdering three police officers.⁷

⁷ Although he had no specific recollection of the conversations recorded in the statement, [Mr.] Jones admitted that the statement was in his handwriting, and signed by him.

[Mr.] Jones then met with the Lancaster City Police on December 31, 2014, and gave a nine-page statement.⁸ In this statement to the police, [Mr.] Jones outlined two plans that [Appellant] had laid out for killing the three officers involved in his arrest, Officers Berry and Pannone, and Sergeant Berkheiser. [Appellant] asked [Mr.] Jones to make a fake call to the police station to lure Officers Pannone and Berry to a remote area so [Appellant] could shoot out their car with an automatic weapon.⁹ [Appellant] further stated he was going to follow Sergeant Berkheiser home and shoot him there, and if his family came outside, he would shoot them too. [Mr.] Jones also detailed in his statement to the police the specifics of [Appellant's] arrest on December 28, 2014, as told to him by [Appellant].

⁸ Again, [Mr.] Jones stated he had no independent recollection of what he told the police but he acknowledged that the interview took place and that it was his signature on the statement. [Mr.] Jones noted that he "wouldn't have lied to the police" when he gave them his statement.

⁹ [Appellant] told [Mr.] Jones he had access to different types of weapons, including an AK47 and AR15.

On February 10, 2015, [Mr.] Jones testified at [Appellant's] preliminary hearing consistent with his December 31, 2014, police statement regarding [Appellant's] recruitment of [Mr.] Jones.¹⁰ Finally, during the course of his incarceration at LCP, [Mr.] Jones had a number of telephone conversations with his girlfriend in Texas, during which they discussed [Appellant's] solicitation of [Mr.] Jones to assist in the murder of two police officers. These recorded conversations were introduced at trial and played for the jury.

¹⁰ Again, [Mr.] Jones had no specific recollection of his testimony but agreed that what he would have testified to at that time would have been accurate and truthful.

The Commonwealth argued at trial that [Mr.] Jones’ statements to law enforcement, his testimony at the preliminary hearing, and his conversations with his girlfriend were all consistent and very detailed—the names of [Appellant's] three arresting officers, the name of the establishment outside which [Appellant] was arrested, the fact that [Appellant] was tased and kneed in the head, and the fact that Sergeant Berkheiser said "mean" things to him. The jury was told that all of [Mr.] Jones’ statements were accurate, reliable and trustworthy because there would be no way for [Mr.] Jones to have all the information he had about [Appellant's] charges and the individuals involved in his arrest unless [Appellant] had told him. ...

(PCRA Court Opinion, filed September 11, 2019, at 13-15) (internal citations omitted).

On August 13, 2015, a jury convicted Appellant of three counts of criminal solicitation for the three police officers and acquitted him of a fourth count relative to the family members of Sergeant Berkheiser. The court sentenced Appellant on October 30, 2015, to an aggregate term of 25½ to 60 years’ incarceration. On December 13, 2016, this Court affirmed Appellant's judgment of sentence. See Commonwealth v. Washington , 159 A.3d 1002 (Pa.Super. 2016) (unpublished memorandum). Appellant did not file a petition for allowance of appeal with the Supreme Court.

In November 2017, Appellant retained private PCRA counsel. On January 23, 2018, PCRA counsel filed a motion for extension of time to file a PCRA petition. The court granted the extension and gave counsel until March 20, 2018 to file a PCRA petition. Appellant filed a counseled PCRA petition on March 19, 2018, alleging trial counsel's ineffectiveness. The Commonwealth filed a motion to dismiss the petition as untimely, claiming Appellant's judgment of sentence had become final on January 12, 2017, before PCRA counsel had filed the motion for extension, and that the PCRA court lacked jurisdiction to extend the filing deadline in any event. On April 17, 2018, the court granted the Commonwealth's motion and dismissed the petition as untimely.

On May 11, 2018, Appellant filed a pro se second PCRA petition, raising PCRA counsel's ineffectiveness in failing to file a timely PCRA petition. Appellant ultimately retained new private counsel, who filed an amended PCRA petition on July 20, 2018, raising trial counsel's ineffectiveness. On July 23, 2018, the Commonwealth filed another motion to dismiss, claiming the current PCRA petition was still untimely. In response, Appellant claimed the current petition was timely under the "new facts" exception to the PCRA time-bar, based on prior PCRA counsel's essential "abandonment" of Appellant. On September 21, 2018, the Supreme Court issued a decision in Commonwealth v. Peterson , 648 Pa. 313, 316, 192 A.3d 1123, 1125 (2018), holding that PCRA "counsel's negligence per se in filing an untimely [first] PCRA petition constitutes adequate grounds to permit the filing of a new PCRA petition beyond the one-year time bar pursuant to the exception in subsection 9545(b)(1)(ii)." Thus, the PCRA court deemed moot the Commonwealth's motion to dismiss.

On December 17, 2018, Appellant filed a second amended PCRA petition. Among other claims, Appellant alleged trial counsel was ineffective in advising him not to testify at trial. The Commonwealth filed an answer on February 5, 2019, with an additional motion to dismiss, asserting that its critical witness, Mr. Jones, had died and retrying Appellant's case would substantially prejudice the Commonwealth.

The court held a PCRA hearing on April 10, 2019. At the PCRA hearing, trial counsel could not recall if he and Appellant had any pre-trial conversation regarding whether Appellant would testify, and if they did have such a conversation, it would have been "very brief." (See PCRA Hearing, 4/10/19, at 46-49). On the first day of trial, Appellant turned to trial counsel and said "this is not going well, I need to testify...because I need to be able to explain to the jury how [Mr. Jones] got this information"; at that point, Appellant and trial counsel discussed whether Appellant should testify. (See id. at 58-59). Appellant was "very animated" about wanting to testify and asked trial counsel to confer with his family about it as well. (Id. at 61).

Trial counsel knew Appellant had a prior burglary conviction that constituted crimen falsi and Appellant also had a prior aggravated assault conviction. (Id. at 63). Trial counsel told Appellant, "I don't want you to get on the stand because the prosecutor could bring up the aggravated assault conviction and then the jury...will think you're violent." (Id. ). Trial counsel was concerned in particular with the aggravated assault conviction because the facts of that case involved a domestic incident which counsel "thought would be just too shocking if the jury were to hear that" where Appellant was on trial for solicitation to commit a violent act. (Id. at 64...