J-S59022-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KELVIN OUTLAW 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3172 EDA 2018

Appeal from the PCRA Order Entered October 18, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0014716-2010

BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 19, 2019

Appellant Kelvin Outlaw appeals from the order denying his first, timely 

Post Conviction Relief Act1 (PCRA) petition. Appellant contends trial counsel 

was ineffective for advising him not to testify at trial. We affirm. 

A prior decision from this Court set forth the relevant factual history as 

follows:

The instant case involved two criminal episodes in which Appellant 

was charged with, inter alia, improperly identifying himself as a 

police officer and frisking a citizen, and then, three days later, 

unlawfully entering a secure area of the 18th Police District in 

Philadelphia by employing a secure pass code available only to 

police personnel. These two incidents took place on September 

12, 2009 and September 15, 2009, respectively. 

* * *

____________________________________________

1 42 Pa.C.S. §§ 9541-9546. 
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During the incident of September 15, 2009, Appellant was 

observed by police in the secure area referred to above, resulting 

in the [b]urglary charge against him. A subsequent search of 

Appellant’s car revealed the presence of several items of police 

attire, and other police paraphernalia, all of which had been stored 

in the secure area. 

Commonwealth v. Outlaw, 2090 EDA 2012, at 1-2 (Pa. Super. filed July 23, 

2013) (unpublished mem.) (record citation omitted) (quoting Trial Ct. Op., 

11/28/12, at 2). 

The PCRA court’s opinion set forth the subsequent procedural history of 

this case as follows:

On June 20, 2012, following a non-jury trial . . ., [Appellant] was 

convicted of [the charges related to the September 15, 2009 

incident, including] one count each of burglary (18 Pa.C.S. § 

3502), criminal trespass (18 Pa.C.S. § 3503), attempted theft by 

unlawful taking (18 Pa.C.S. § 901) and impersonating a public 

servant (18 Pa.C.S. § 4912).[fn1] That same day, the [trial c]ourt 

imposed consecutive terms of 3 to 6 years of incarceration for the 

burglary charge and 1 to 2 years of incarceration for the 

impersonating a public servant charge, for an aggregate sentence 

of four to eight years’ incarceration. [Appellant] filed a postsentence motion, which the [trial c]ourt denied on June 26, 2012. 

[Appellant] was represented at trial and at sentencing by Todd 

Fiore, Esquire. 

[fn1] The case was tried jointly with charges [for the 

September 12, 2009 incident] set forth at docket number 

CP-51-0003290-2011. [Appellant] was found not guilty of 

all charges on that docket. . . . 

On July 23, 2013, the Superior Court affirmed [Appellant’s] 

judgment of sentence, and the Supreme Court denied allocator on 

January 15, 2014. [Appellant] then filed a pro se petition under 

the [PCRA] on April 8, 2014. John P. Cotter, Esquire was 

appointed to represent [Appellant] on December 17, 2014. On 

November 12, 2015, Mr. Cotter filed an amended PCRA petition . 

. . raising the sole claim that trial counsel was ineffective in 

advising [Appellant] to not testify at trial. On May 4, 2017, after 
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reviewing [Appellant’s] amended petition and the 

Commonwealth’s motion to dismiss, [the PCRA c]ourt ruled that 

the claim set forth in [Appellant’s] petition was without merit. On 

that day, pursuant to Pa.R.Crim.P. 907, [the PCRA c]ourt issued 

notice of its intent to dismiss the petition without a hearing. . . . 

On July 13, 2017, [the PCRA c]ourt entered an order dismissing 

Appellant’s amended petition. 

[Appellant] subsequently appealed the [PCRA c]ourt’s decision to 

dismiss his amended petition. On June 8, 2018, the Superior 

Court vacated the dismissal order and remanded the case for an 

evidentiary hearing in order to give [Appellant] the opportunity to 

prove that counsel had no reasonable strategy or basis for 

advising [Appellant] not to testify. Pursuant to that directive, the 

[PCRA c]ourt held an evidentiary hearing on October 18, 2018. 

Both [Appellant] and his trial attorney, Todd Fiore, Esquire, 

testified. That same day, after issuing findings of fact and 

conclusions of law, the [PCRA c]ourt entered an order again 

dismissing [Appellant’s] amended petition. 

PCRA Ct. Op., 12/27/18, at 1-2 (record citations and some capitalization 

omitted). 

Appellant timely filed a notice of appeal and a Pa.R.A.P. 1925(b) concise 

statement. The trial court filed a responsive opinion on December 27, 2018, 

concluding that trial counsel provided credible testimony “and established that 

his advice to [Appellant] that he not testify was completely reasonable.” Id.

at 6. 

Appellant now raises one question for this Court’s review: 

Did the [PCRA] court err in denying Appellant a new trial when 

Appellant showed that trial defense counsel was ineffective for 

vitiating Appellant’s Constitutional right to testify in his own 

defense at trial? 

Appellant’s Brief at 2. 
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Appellant contends that trial counsel advised him not to testify at trial, 

and trial counsel’s advice “was not reasonable because . . . only [Appellant’s] 

testimony could have established his innocence.” Id. at 8. Appellant relies 

on his own PCRA hearing testimony that trial “counsel did not give [Appellant] 

any reasons for not testifying except for the fact that counsel had some 

agreement with the Commonwealth that did not appear on the record and did 

not make sense to [Appellant].” Id. Appellant claims that when he pressed 

trial counsel for a specific reason why he should not testify, trial counsel 

merely “said he did not think it was a good idea. . . .” Id. 

Appellant acknowledges trial counsel’s PCRA hearing testimony “that he 

recommended that [Appellant] not testify because of his numerous crimen 

falsi convictions.” Id. Appellant insists, however, that “[t]hree of these 

convictions were allowed as evidence against [Appellant] at trial,” thereby 

rendering trial counsel’s advice “so unreasonable that it vitiated [Appellant’s] 

knowing and intelligent decision not to testify at trial.” Id. at 8-9. Based 

upon the foregoing, Appellant maintains that this Court must grant relief in 

the form of a new trial. Id. at 10. 

Our review of the denial of a PCRA petition is limited to the examination 

of “whether the PCRA court’s determination is supported by the record and 

free of legal error.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. 

Super. 2014) (quotation marks and citation omitted). “The PCRA court’s 

findings will not be disturbed unless there is no support for the findings in the 

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 
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2014) (citation omitted). We review “the PCRA court’s legal conclusions de 

novo.” See Miller, 102 A.3d at 992 (citation omitted). 

We presume that the petitioner’s counsel was effective. 

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). To establish 

a claim of ineffectiveness, a petitioner “must show, by a preponderance of the 

evidence, ineffective assistance of counsel which, in the circumstances of the 

particular case, so undermined the truth-determining process that no reliable 

adjudication of guilt or innocence could have taken place.” Commonwealth 

v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). 

A petitioner must establish (1) that the underlying claim has arguable 

merit; (2) that counsel lacked a reasonable basis for his action or inaction; 

and (3) but for the act or omission in question, the outcome of the proceedings 

would have been different. Commonwealth v. Washington, 927 A.2d 586, 

594 (Pa. 2007). “A claim of ineffectiveness may be denied by a showing that 

the petitioner’s evidence fails to meet any of these prongs.” Id. (citation 

omitted). 

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

omitted). 

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 
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vitiate a knowing and intelligent decision to testify on his own 

behalf. 

Id. (citation omitted). 

Instantly, Appellant and trial counsel both testified at the PCRA hearing 

regarding the circumstances surrounding Appellant’s decision not to testify at 

trial. Appellant testified that he discussed the matter with trial counsel on 

multiple occasions, and he always expressed his desire to testify at trial. See

N.T. PCRA Hr’g, 10/18/18, at 10, 13. One of Appellant’s conversations with 

trial counsel occurred on June 20, 2012, during a recess at trial. Id. at 12-

13. Appellant described the conversation as follows: 

[PCRA Counsel:] What was the substance of your discussion as far 

as what you wanted to do? 

[Appellant:] Well, I told [trial counsel] that I wanted to testify, 

and he said, as we explained before trial and we agreed to take a 

bench trial, the Commonwealth agreed to withdraw or ungrade 

charges for me to take a bench trial on the assumption of me not 

taking the stand. And I didn’t understand that, he didn’t give me 

an explanation, and we went back out, sat back down at the table. 

[PCRA Counsel:] What did he tell you about whether you should 

testify or not? What was his advice? 

[Appellant:] He said it’s not a good idea. 

* * *

THE COURT: Did you just say that [trial counsel] told you there 

was an agreement that was unstated, that you would not testify 

in exchange for charges being dropped?

[Appellant:] Yes. Before trial, [trial counsel] came in the back and 

he said the Commonwealth agreed to dismiss charges on the 

burglary case and the robbery case[.]
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Id. at 13-14. The PCRA judge, who also served as the trial judge, interjected 

again, emphasizing that no one had informed him about an agreement to

withdraw certain charges in exchange for Appellant’s decision to proceed to a 

bench trial and not to testify. Id. at 14-15. 

Following Appellant’s testimony, trial counsel denied the existence of 

any agreement with the Commonwealth. Id. at 37. Nevertheless, trial 

counsel confirmed that he had advised Appellant not to testify at trial. Id. at 

34. Trial counsel testified regarding the basis for his advice as follows: 

[Trial Counsel:] Well, there were two reasons why I didn’t think it 

was in his best interest to testify. The first was, there was a litany 

of crimen falsi cases, convictions that were not coming in as other 

acts. There were cases that were coming in as other acts because 

of the nature of the charges.[2] But there were other cases, 

particularly several cases from Delaware County, that were crimen 

falsi convictions, that I did not want His Honor to know about 

during the trial, absolutely. 

[PCRA Counsel:] Any other reason that you didn’t want him to 

testify? 

[Trial Counsel:] Yes, yes, absolutely. I was convinced, and I 

believe His Honor was as well, that my client was not guilty of the 

second case [relating to the separate incident on September 12, 

2009]. 

* * *

And even with the alibi witnesses, the victim in that case pointed 

out my client and said he was the person that victimized her. So 

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2 “During pretrial motions, the Commonwealth identified sixteen incidents 

during which Appellant impersonated a police officer; three were in person 

and thirteen were on the telephone. At trial, the Commonwealth proffered 

testimony detailing the three in-person impersonations.” Outlaw, 2090 EDA 

2012, at 5-6 (record citation omitted). 
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even with alibi witnesses, it’s never a guarantee. And I didn’t 

want to open my client up to cross-examination on that case 

because that case involved a sexual component and a robbery, 

and if my client would have been found guilty of that case, he 

would have probably still been reporting as a sex offender. 

And with all of those other crimen falsi cases that were not coming 

in, if he would have testified and His Honor didn’t believe him, 

then I feel, I felt that there was a possibility that His Honor could 

have, even with alibi witnesses, could have found my client guilty 

based on credibility and based on the prior crimen falsi

convictions. 

Id. at 34-35. 

When asked about whether he provided Appellant with a detailed 

explanation about the reasons why he should not testify, trial counsel stated: 

I don’t have a specific recollection. I probably had over ten 

thousand cases in my career. And since then, I probably tried 

thousands. But I was well-trained as a former public defender, 

and I would have never not told my client why I didn’t want him 

to testify. I don’t believe I’ve ever not explained my reasoning for 

that since it’s an absolute right. I would have definitely explained 

to him that I didn’t want him to open himself up for those other 

cases. 

Id. at 35-36. 

Significantly, the PCRA court found trial counsel presented credible 

testimony to establish that his advice to Appellant was reasonable. See PCRA 

Ct. Op. at 6. We are bound by the PCRA court’s credibility determinations. 

See Commonwealth v. Montalvo, 205 A.3d 274, 290 (Pa. 2019) (stating 

“that a PCRA court’s credibility findings are to be afforded great deference and 

where, as here, they are supported by the record, such determinations are 

binding on an appellate court”). On this record, Appellant failed to establish 

that trial counsel was ineffective in his counseling of Appellant on his right to 
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testify. See Miller, 102 A.3d at 992; Michaud, 70 A.3d at 869. Accordingly, 

Appellant is not entitled to relief. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/19