The Pennsylvania Superior Court has decided the case of Commonwealth v. Washington, holding that a defense attorney was ineffective when he gave incorrect legal advice that persuaded his client not to testify at his own trial. This decision is significant because it requires attorneys to provide correct and competent advice when advising their clients whether to testify at trial. Defense attorneys must have a thorough understanding of the rules of evidence when advising their clients whether to testify or even go to trial. This decision provides additional protections to criminal defendants.  

Commonwealth v. Washington

Police observed a disturbance outside of a Lancaster City restaurant and lounge. The officers made contact with the involved parties, one of whom was the defendant. The defendant became combative with the officers, yelled profanities, and refused to be arrested. As a result of the defendant’s behavior, the officers used a taser on him to “control the situation.” The defendant was then subsequently arrested and was charged with terroristic threats, resisting arrest, and other related offenses. 

The defendant was then taken to Lancaster County Prison. While in prison, he allegedly told his cellmate that he wanted to kill the officers involved in his arrest. According to his cellmate, the defendant solicited him in plotting to kill the officers. The cellmate reported the defendant’s plot to the authorities and gave the names of the specific officers that the defendant allegedly intended to kill. As a result of this, the Commonwealth charged the defendant with four counts of criminal solicitation to commit homicide. The defendant then proceeded to a jury trial on the solicitation charges. At this trial, the cellmate was the main witness against the defendant. 

At the conclusion of the trial, the jury convicted the defendant of three counts of criminal solicitation to kill the officers involved in his original arrest. The trial court sentenced the defendant to a term of 25 ½ to 60 years’ incarceration. The defendant then filed an appeal which was denied. He also declined to file a petition for allowance of appeal with the Pennsylvania Supreme Court. The defendant then filed a Post-Conviction Relief Act (“PCRA”) petition alleging ineffective assistance of counsel. However, for reasons that will not be explored in this blog, it was denied. The defendant then filed another PCRA petition. The defendant raised several issues, including that his trial counsel was ineffective in advising him not to testify at trial.

The trial court held a PCRA hearing. At this hearing, defendant’s original trial counsel could not recall if he and Appellant had any pre-trial conversation regarding whether the defendant would testify, but if he did have such a conversation, it would have been “very brief.” However, the trial counsel did state that the defendant turned to him and said “this is not going well, I need to testify…because I need to be able to explain to the jury how [the cellmate] got this information.” At this point, the defendant and trial counsel discussed whether the defendant should testify. The trial attorney then told the defendant that “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.” The trial attorney believed that if the defendant were to testify his conviction for aggravated assault and the details of that conviction would come in for impeachment purposes. Based on that belief, the trial attorney advised the defendant not to testify. 

 At the hearing, the trial attorney admitted that if the aggravated assault conviction was not admissible for impeachment purposes, “then there would have been no reason to advise [the defendant not to testify]” because he really wanted to explain to the jury how his cellmate got that information. Though the defendant also had a burglary conviction that could have been used for impeachment purposes, the trial attorney stated that he “wasn’t even thinking about the burglary conviction.” Additionally, the trial attorney testified that the defendant was “not a foolish man” and therefore did not have any concerns that the defendant would have “opened the door” to allowing the prosecutor to cross the defendant on his prior aggravated assault conviction. Based on this advice not to testify and the reasons for it, the defendant did not testify at this trial. 

The defendant also testified at the PCRA hearing. He testified that prior to trial there was no understanding that he was going to testify. However, as the trial progressed, he told trial counsel that he “wanted to testify so [the jury] could know the whole story as to how any information that was on [his] paperwork was being transmitted by [his cellmate].” Specifically, the defendant would have explained that he had his paperwork in his cell and this was how the cellmate knew the names of the officers involved in Appellant’s first case. The defendant confirmed that his trial counsel told him that if he testified the jury would hear about this prior aggravated assault conviction and he relied on his advice when deciding not to testify. 

Following the hearing and submission of post-hearing briefs, the trial court denied the defendant’s PCRA petition. The defendant then filed a timely notice of appeal. The Superior Court then denied his appeal. Undeterred, the defendant then filed a petition for re-argument before an en banc panel of the Superior Court. On appeal, the defendant raised three issues, however for purposes of this blog, only the issue of whether trial counsel’s advice concerning his aggravated assault conviction was so unreasonable that the defendant did not and could not have made a knowing and intelligent decision not to testify at trial.  

The Pennsylvania Superior Court’s Decision  

The Pennsylvania Superior Court reversed the lower court’s decision and granted the defendant a new trial. In making its decision, the Superior Court reviewed prior case law and the rules of evidence. Rule 609 of the Pennsylvania Rules of Evidence allows for a witness to be impeached with a prior conviction for a crime if it involves dishonesty or a false statement (also referred to as “crimen falsi”). The Commonwealth conceded that aggravated assault was not a crime that involved crimen falsi. Additionally, there was a prior Pennsylvania Supreme Court decision that held that a defense attorney provided ineffective assistance of counsel when he advised a defendant to waive his right to testify because he could be impeached with his prior drug and firearms convictions. 

The Superior Court also agreed that that the trial attorney’s advice to the defendant was improper. Additionally, the Superior Court did not find that the fact that the defendant had a prior burglary conviction, that is a crimen falsiconviction, relevant because the trial attorney specifically testified that his sole reason for advising the defendant not to testify was because of his prior aggravated assault conviction. Further, the Superior Court was not concerned that the defendant’s testimony was probably speculative. The relevant inquiry is whether his decision not to testify would have been different absent his trial attorney’s ineffectiveness. In this case, it is clear that the defendant would have testified had his attorney provided competent legal advice. Therefore, the defendant’s convictions are vacated and he will get a new trial. 

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