Today, the Superior Court vacated Appellant’s Judgment of Sentence and remanded his case for a new trial after holding that it was ineffective assistance of counsel for trial counsel to advise Appellant against testifying based solely out of concern that Appellant’s prior aggravated assault conviction would be admitted for impeachment purposes and the jury would hear details about that prior offense.
Appellant was on trial for soliciting another party to kill four police officers that were previously involved in arresting Appellant for another matter.
At trial, Appellant’s counsel was concerned with Appellant’s prior 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. Trial counsel believed at the time that if Appellant were to testify, the conviction for aggravated assault and the details surrounding that conviction would come in for impeachment purposes. Based on that belief, trial counsel advised Appellant not to testify.
Trial counsel expressly told Appellant and his family that Appellant should not testify because if he did, the jury would hear about his violence. Appellant trusted counsel’s advice.
At the PCRA Hearing, Appellant maintained he suffered prejudice due to trial counsel’s incorrect legal advice because he would have testified if he knew his aggravated assault conviction was not automatically admissible at trial. Appellant also noted that the trial court did not conduct an on-the-record colloquy to determine whether his decision not to testify was knowing, intelligent, and voluntary. Accordingly, Appellant concluded that trial counsel was ineffective, and he should be granted a new trial.
Trial counsel made clear at the PCRA hearing that his advice against Appellant testifying was based solely out of his concern that Appellant’s prior aggravated assault conviction would come in for impeachment purposes and the jury would hear details about that prior offense.
The Superior Court first noted that Aggravated assault is not inherently crimen falsi and admissible for impeachment purposes. Additionally, the Court explained that even if Appellant’s aggravated assault conviction was admissible for impeachment purposes as a crimen falsi offense based on its underlying facts, counsel’s advice to Appellant not to testify was still erroneous where counsel told Appellant that the “facts” and “details surrounding” Appellant’s aggravated assault conviction would come in at trial and would be “too shocking” for the jury to hear.
In other words, even if the analysis of the underlying offense concludes that it is crimen falsi and admissible for impeachment purposes at trial; the facts underlying that conviction are not admissible.
Accordingly, because the details of Appellant’s prior aggravated assault conviction would not have been admissible for impeachment purposes as proper crimen falsi evidence, counsel’s advice to Appellant in this respect was erroneous and Appellant is entitled to a new trial.