Com. v. Zachmann, T.

J-S07024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS ZACHMANN :
:
Appellant : No. 758 EDA 2017
Appeal from the PCRA Order February 21, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005944-2011
BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED AUGUST 09, 2018
Thomas Zachmann appeals from the order entered in the Philadelphia
County Court of Common Pleas, dismissing his first petition filed pursuant to
the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
This Court previously recounted the relevant facts of Appellant’s case as
follows:
On April 19, 2011, police officers and agents of the Pennsylvania
Gun Violence Task Force executed a search warrant for the
premises of 1115 Ellsworth Street, Philadelphia, Pennsylvania, in
an attempt to locate four rifles that had admittedly been stolen by
Theresa Metzger. Metzger subsequently delivered the rifles to
Nicholas Picuri. The target address, 1115 Ellsworth, was the
residence of Cynthia Rae “Cindy” Chaika, who was the girlfriend
of the target of the search, Nicholas Picuri. Although Picuri was
not at that address, they found [Appellant], a convicted felon, in
possession of a rifle (not one of the stolen rifles), which was
leaning against a wall in the bedroom where he was discovered.
Additionally, [Appellant] admitted to having purchased black
powder handguns that were found in a nearby safe that
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[Appellant] opened for the officers. Because [Appellant] was a
convicted felon, he was not permitted to possess any firearms.
[Appellant] appeal[ed] from the judgment of sentence imposed on
August 2, 2012 following his conviction for violating 18 Pa.C.S. §
6105(a)(1) Persons not to possess firearms. He was sentenced to
a term of three and one-half to seven years’ incarceration.
Commonwealth v. Zachmann, 170 EDA 2013, at 1-2 (Pa. Super., filed
February 24, 2014) (unpublished memorandum) (footnotes omitted).
In his direct appeal, Appellant challenged the validity of the search
warrant. This Court affirmed his judgment of sentence, and the Pennsylvania
Supreme Court denied his petition for allowance of appeal. Thereafter,
Appellant filed a timely pro se PCRA petition, alleging prosecutorial misconduct
in opening and closing statements, and ineffective assistance of counsel. The
PCRA court appointed counsel, who filed an amended petition. The court
issued notice of its intent to dismiss Appellant’s petition without a hearing,
and later dismissed it. This timely appeal is now before us.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of
law, our scope of review is de novo. See id.
In his first issue, Appellant argues that counsel’s failure to contact and
interview Diane Russo constituted ineffective assistance of counsel. Appellant
contends Ms. Russo would have testified that the seized guns belonged to her
late husband. Appellant claims counsel had no reasonable basis for failing to
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interview Ms. Russo, and that he was found guilty as a result of counsel’s
shortcomings.
We presume counsel provided effective assistance, and Appellant bears
the burden of proving otherwise. See Commonwealth v. Pond, 846 A.2d
699, 708 (Pa. Super. 2004). “In order for [an a]ppellant to prevail on a claim
of ineffective assistance of counsel, he must show, by a preponderance of the
evidence, ineffective assistance of counsel which … so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.
Super. 2005) (citation omitted). Further,
[an a]ppellant must plead and prove, by a preponderance of the
evidence, three elements: (1) the underlying legal claim has
arguable merit; (2) counsel had no reasonable basis for his action
or inaction; and (3) [a]ppellant suffered prejudice because of
counsel’s action or inaction.
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).
A failure to satisfy any prong of the test will require rejection of the entire
claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
“Arguable merit exists when the factual statements are accurate and
could establish cause for relief. Whether the facts rise to the level of arguable
merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,
540 (Pa. Super. 2015) (citations and internal quotation marks omitted).
When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the Strickland test by establishing
that: (1) the witness existed; (2) the witness was available to
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testify for the defense; (3) counsel knew of, or should have known
of, the existence of the witness; (4) the witness was willing to
testify for the defense; and (5) the absence of the testimony of
the witness was so prejudicial as to have denied the defendant a
fair trial.
Commonwealth v. Sneed, 45 A.3d 1096, 1108-1109 (Pa. 2012) (citations
omitted). “To demonstrate prejudice where the allegation is the failure to
interview a witness, the petitioner must show that there is a reasonable
probability that the testimony the witness would have provided would have
led to a different outcome at trial.” Commonwealth v. Pander, 100 A.3d
626, 639 (Pa. Super. 2014) (en banc) (citation omitted).
Further, a claim that counsel was ineffective by failing to call an alibi
witness lacks arguable merit where the trial court conducted a colloquy of the
defendant at trial, and the defendant agreed with counsel’s decision not to
present such a witness. See Pander, 100 A.3d at 642. “[A] defendant who
makes a knowing, voluntary, and intelligent decision concerning trial strategy
will not later be heard to complain that trial counsel was ineffective on the
basis of that decision.” Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa.
2002) (citation omitted).
Appellant posits that trial counsel “failed to even investigate or speak
with possible witnesses.” Appellant’s Brief, at 16. Yet, on the same page,
Appellant states his “attorney told him that there were no witnesses as his
witness [Ms. Russo] was not good.” Id. This apparent inconsistency aside, the
trial court conducted a colloquy of Appellant prior to the end of trial, at which
time Appellant stated he had no additional witnesses he wished to call. See
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N.T., Trial, 6/6/12, at 196. And Appellant’s counsel specifically noted just after
the colloquy that he and Appellant had discussed trial strategy before
ultimately determining Ms. Russo, who was present in the courtroom at the
time, would not be called to testify for the defense case. See id., at 197. Thus,
Appellant waived this ineffectiveness claim during his colloquy by specifically
acknowledging that he did not wish to call any witnesses to testify.
Also, even if Appellant had not waived this claim, this Court would find
it lacks merit. There was ample evidence, including Appellant’s own admission
to the officers that the guns belonged to him, to support his conviction. Given
this, Appellant has hardly proven the absence of Ms. Russo’s testimony “was
so prejudicial as to have denied [him] a fair trial.” Sneed, 45 A.3d at 1109.
In his second issue, Appellant alleges counsel for the Commonwealth
committed misconduct in his opening and closing statements. Appellant places
this argument within the ineffective assistance of counsel section of his brief.
However, Appellant acknowledges that defense counsel properly objected to
the prosecutor’s “inappropriate conduct[,] and requested a mistrial which was
denied.” Appellant’s Brief at 17. The PCRA court also notes Appellant’s counsel
objected to both the prosecutor’s opening and closing statements, and that
the court sustained one of the objections and issued a cautionary instruction.
See PCRA Court Opinion, filed 5/5/17, at 4-5 (unpaginated). Thus, Appellant
has failed to demonstrate how counsel rendered ineffective assistance.
To the extent Appellant asks that we review the substance of the
Commonwealth’s opening and closing statements for what he deems
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“impermissible conduct,” that claim should have been raised on direct appeal.
It is now waived. See 42 Pa.C.S.A. § 9544(b) (“[A]n issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, on appeal, or in a prior state postconviction proceeding”).
As Appellant is due no relief on either issue, we affirm the PCRA court’s
order dismissing his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/18
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