Com. v. Buxton, A.

• Court: Superior Court of Pennsylvania
• Decided: March 2, 2016
• Docket: 1384 WDA 2015
• Status: Unpublished

Opinion

J-S20035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ANDY BUXTON,

Appellant No. 1384 WDA 2015

Appeal from the PCRA Order August 31, 2015 in the Court of Common Pleas of Allegheny County Criminal Division at No.: CP-02-CR-0001413-2013

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED: March 2, 2016

Appellant, Andy Buxton, appeals from the order denying his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. Specifically, he alleges that trial counsel was ineffective for

advising him not to testify on his own behalf. We affirm.

Appellant was convicted of aggravated assault and resisting arrest.

The charges related to Appellant’s disorderly conduct during his arrest for

possession of illegal prescription pills. After a bench trial, the court

convicted Appellant of the aforementioned charges on September 3, 2013.

On December 2, 2013, the court sentenced Appellant to an aggregate term

of incarceration of not less than eleven-and-one-half nor more than twenty- ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S20035-16

three months. Appellant did not file post-sentence motions. A panel of this

Court affirmed Appellant’s judgment of sentence on July 28, 2014. (See

Commonwealth v. Buxton, 105 A.3d 803 (Pa. Super. filed July 28, 2014)

(unpublished memorandum)). Appellant did not seek leave to appeal with

our Supreme Court.

On March 31, 2015, Appellant filed a timely first PCRA petition.

Appointed counsel filed an amended petition on June 24, 2015. On August

31, 2015, the court denied the petition after a hearing. Appellant timely

appealed.1

Appellant raises one issue for this Court’s review:

Did the [PCRA] court err in denying Appellant’s PCRA petition since trial counsel . . . was ineffective for advising Appellant not to testify at his bench trial, prior to which she told him not to testify because he would have been impeached by his criminal record[?]

(Appellant’s Brief, at 3) (some capitalization omitted).

Our standard of review of appeals from PCRA court decisions is well-

settled:

This Court analyzes PCRA appeals “in the light most favorable to the prevailing party at the PCRA level.” Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012[, appeal denied, 64 A.3d 631 (Pa. 2013)]. Our “review is limited to the findings of the PCRA court and the evidence of ____________________________________________

1 Appellant filed a timely Rule 1925(b) statement of errors complained of on appeal contemporaneously with his notice of appeal. See Pa.R.A.P. 1925(b). The PCRA court filed an opinion on November 23, 2015. See Pa.R.A.P. 1925(a).

-2- J-S20035-16

record” and we do not “disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error.” Id. Similarly, “[w]e grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions.” Id. (citations omitted). “[W]here the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. . . .” Id.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014). “The

PCRA court’s credibility determinations, when supported by the record, are

binding on this Court.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa.

2011) (citation omitted).

In this case, Appellant alleges that trial counsel rendered ineffective

assistance by advising him not to testify on his own behalf because the

Commonwealth potentially then could have impeached him on his prior

convictions. (See Appellant’s Brief, at 12-17). We disagree.

[T]o succeed on an ineffectiveness claim, a petitioner must demonstrate that: the underlying claim is of arguable merit; counsel had no reasonable basis for the act or omission in question; and he suffered prejudice as a result, i.e., there is a reasonable probability that, but for counsel’s error, the outcome of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding.

Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015) (citations

omitted). “Counsel’s assistance is deemed constitutionally effective once

this Court determines that the defendant has not established any one of the

prongs of the ineffectiveness test.” Commonwealth v. Rolan, 964 A.2d

398, 406 (Pa. Super. 2008) (citation and emphasis omitted).

-3- J-S20035-16

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 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.

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

omitted). “A claim of strategic error absent a showing of specific incidents of

counsel’s impropriety will not satisfy this standard.” Commonwealth v.

Thomas, 783 A.2d 328, 334-35 (Pa. Super. 2001) (citation omitted).

Here, Appellant admits that the court conducted a colloquy, after

which he waived his right to testify. (See Appellant’s Brief, at 16). He

argues, however, that his waiver was not voluntary where it was premised

on trial council’s representation that his “criminal record would open the

door to impeachment.” (Id. at 17) (record citation and internal quotation

marks omitted). Appellant maintains that, because his prior convictions did

not involve crimen falsi, counsel’s advice was unreasonable, and her

representation ineffective. (See id. at 12-17). This argument does not

merit relief.

At Appellant’s PCRA hearing, trial counsel testified that she and

Appellant participated in two lengthy meetings in which they discussed the

case, and whether Appellant should testify on his own behalf. (See N.T.

PCRA Hearing, 8/31/15, at 4). She explained that she advised Appellant

against testifying because of his “excitable and combative” demeanor that

-4- J-S20035-16

she believed would not help him defend against the aggravated assault

charge. (Id.). Counsel also stated that, if Appellant testified, “the door

could have easily been opened on” his prior convictions for resisting arrest

and aggravated assaults on police officers. (Id. at 5; see id. at 4). Finally,

although Appellant wanted to make a factual argument that the police

officers in this case were lying, counsel believed, based on her experience,

“there was a legal argument to be made that[,] even if the police officers

were believed[,] that his actions didn’t rise to the level of aggravated

assault.” (Id. at 7; see id. at 5). Counsel testified that she told Appellant

“that the decision at the end of the day was his, and [she] told him he had

the right to testify.” (Id. at 5). She expressly confirmed that she never

advised Appellant not to testify because of concerns about prior crimen falsi

convictions. (See id. at 6).

Conversely, Appellant repeatedly testified that counsel told him not to

testify because his “criminal record would be used against [him] to discredit

him[,]” but he could not recall exactly why she advised him in that manner.

(Id. at 10; see id. at 11-12). In considering the testimony presented, the

PCRA court found trial counsel’s version of events to be more credible than

that of Appellant, a finding that we will not disturb. See Spotz, supra at

259; Rigg, supra at 1084; (see also PCRA Court Opinion, 11/23/15, at 8).

Based on the foregoing, we conclude that the PCRA court properly

found that Appellant failed to plead and prove that trial counsel was

-5- J-S20035-16

ineffective for advising him to waive his right to testify. See Rigg, supra at

1084. Our independent review of the record confirms that counsel testified

she advised Appellant that he had an absolute right to testify on his own

behalf at trial, and she had a reasonable trial strategy for advising him not

to do so. See Michaud, supra at 869 (finding counsel effective where he

had advised appellant he had right to testify, but had reasonable trial

strategy for advising him not to do so); see also Laird, supra at 978;

Thomas, supra at 334-35. Therefore, Appellant’s issue lacks merit.2

____________________________________________

2 Appellant’s reliance on Commonwealth v. Nieves, 746 A.2d 1102 (Pa. 2000), Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012), and Commonwealth v. O’Bidos, 849 A.2d 243 (Pa. Super. 2004), appeal denied, 860 A.2d 123 (Pa. 2004), is not legally persuasive. In Nieves, the Pennsylvania Supreme Court found that trial counsel was ineffective for advising the defendant not to testify because he could be impeached on the basis of his prior convictions, which did not involve crimen falsi. See Nieves, supra at 1105-06. However, unlike trial counsel here, counsel in Nieves admitted that he did not have an alternative reasonable trial strategy for advising the defendant not to testify. See id. Additionally, in Nieves, the PCRA court credited the hearing testimony of the defendant, not counsel, which is the opposite of the court’s credibility finding in this case. See id. Therefore, the facts of Nieves are distinguishable from those presented here.

Also, neither Ford nor O’Bidos supports Appellant’s ineffectiveness argument. The Ford Court concluded that the Commonwealth’s incorrect representation of the potential maximum sentence during the jury trial waiver colloquy did not render the defendant’s waiver unknowing, where defense counsel and her supervisor repeatedly instructed him of the correct minimum sentence he faced if he proceeded to trial and was convicted. See Ford, supra at 1195. In O’Bidos, this Court held that trial counsel was not ineffective for advising the appellant not to testify on his own behalf on the bases “there were issues that could be brought out on cross-examination if (Footnote Continued Next Page)

-6- J-S20035-16

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/2/2016

_______________________ (Footnote Continued)

appellant testified, including prior criminal history, other complainants, and circumstances surrounding his arrest.” O’Bidos, supra at 250.

-7-