Com. v. Marchetti, R.

J-S17004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT MARCHETTI
Appellant No. 1952 WDA 2014
Appeal from the PCRA Order November 25, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007143-2007
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 30, 2016
Appellant, Robert Marchetti, appeals from the order entered in the
Allegheny County Court of Common Pleas, which denied his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinion, the PCRA court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issue for our review:
DID THE [PCRA] COURT ERR IN DENYING APPELLANT’S
PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE
FOR FAILING TO ADVISE APPELLANT REGARDING THE
ROLE AND NECESSITY OF CHARACTER WITNESSES, FOR
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
_____________________________
*Former Justice specially assigned to the Superior Court.
J-S17004-16
IMPROPERLY ADVISING AND/OR COERCING APPELLANT
NOT TO CALL CHARACTER WITNESSES, AND FOR
INCORRECTLY DECIDING NOT TO CALL CHARACTER
WITNESSES AT APPELLANT’S TRIAL, ESPECIALLY SINCE
SEVERAL WERE AVAILABLE AND WILLING AND TRIAL
COUNSEL KNEW OF THEIR AVAILABILITY AND
WILLINGNESS TO TESTIFY?
(Appellant’s Brief at 3).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (Pa.Super. 2012). Traditionally, credibility issues are
resolved by the trier of fact who had the opportunity to observe the
witnesses’ demeanor. Commonwealth v. Abu-Jamal, 553 Pa. 485, 527,
720 A.2d 79, 99 (1998), cert. denied, 528 U.S. 810, 120 S. Ct. 41, 145
L. Ed. 2d 38 (1999). Where the record supports the PCRA court’s credibility
resolutions, they are binding on this Court. Id.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
-2-
J-S17004-16
asserting a claim of ineffective assistance of counsel, the petitioner is
required to demonstrate that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable strategic basis for his action or inaction; and,
(3) but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different.
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The
failure to satisfy any prong of the test for ineffectiveness will cause the claim
to fail. Williams, supra.
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The [appellant]
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
-3-
J-S17004-16
confidence in the outcome. In [Kimball, supra], we held
that a “criminal [appellant] alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
(2002) (some internal citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Kevin G.
Sasinoski, we conclude Appellant’s issue merits no relief. The PCRA court’s
opinion fully discusses and properly disposes of the question presented.
(See PCRA Court Opinion, filed November 16, 2015, at 3-4) (finding: trial
counsel testified at PCRA hearing that defense relied on whether jury would
find Appellant’s testimony credible to convince jury of innocence; trial
counsel testified he did not call potential character witnesses because they
were unsophisticated and would “blow” case; PCRA counsel established trial
counsel failed to interview and call character witnesses to testify to
Appellant’s non-violent, honest, and law-abiding nature in community;
nevertheless, trial counsel was not ineffective because Appellant waived
right to call character witnesses; court conducted colloquy at trial in which
Appellant stated he did not wish to present character witnesses; at trial,
Appellant testified he had discussed with trial counsel right to call witnesses
to testify to Appellant’s good character, but he did not wish to present these
witnesses). The record supports the PCRA court’s decision; therefore, we
have no reason to disturb it. Accordingly, we affirm on the basis of the
-4-
J-S17004-16
PCRA court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2016
-5-
Circulated 02/29/2016 03:08 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEAL TH OF PENNSYLVANIA CRIMINAL DIVISION
CC200707143
vs. 1952 WDA 2014
ROBERT MARCHETII, OPINION'
Appellant
BY:
HON. KEVIN G. SASINOSKI
Room 507 - Courthouse
436 Grant Street
Pittsburgh, PA 15219
COPIES TO:
Scott Coffey, Esq.
0 216 Sharon Drive
\.U Pittsburgh, PA 15221
..J
Michael Streily, Esq.
District Attorney's Office
4th Floor - Courthouse
Pittsburgh, PA 15219
..... ,.
ORIGiNAL
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION
vs. CC200707143
1952 WDA 2014
ROBERT MARCHETTI,
Appellant
OPINION
Sasinoski, J.
This is an appeal of the Order of Court denying defendant's amended PCRA
petition on November 25, 2014. Defendant filed a timely Notice of Appeal and
Statement of Matters Complained of on Appeal. This opinion is filed in response thereto
at No. 1952 WDA 2014.
Defendant was convicted of first degree murder and sentenced to life
imprisonment on June 24, 2008 at CC200707143 in Allegheny County, Pennsylvania.
Post sentence motions were denied, and a timely appeal to Superior Court was filed at
No. 1758 WDA 2008, which affirmed the judgment of sentence on March 31, 201 O. No
Petition for Allowance of Appeal to the Supreme Court was filed. Subsequently, on
August15., 2011, defendant filed a pro-se PCRA Petition and Scott Coffey, Esquire was
appointed to represent defendant. The PCRA was amended, wherein defendant
requested his Petition for Allowance of Appeal rights be reinstated. The PCRA court,
with the agreement of the Commonwealth, entered an order reinstating these rights,
and the Petition for Allowance of Appeal was filed on June 6, 2012 and subsequently
denied on September 25, 2012.
2
Defendant again filed a pro se PCRA petition on October 15, 2012, and Scott
Coffey, Esquire, was appointed to represent defendant. The petition was amended and
the court held several hearings on this matter. The PCRA court denied relief and the
defendant appealed at 1942 WDA 2014 on I Vecunber 1, dW I If . In his timely 1925(b)
Statement of Matters Complained of on Appeal, Defendant alleges the following
allegation of error:
1. The Trial Court erred in denying appellant's PCRA Petition since
trial counsel was ineffective for failing to advise appellant regarding
the role and necessity of character witnesses, for improperly
advising and/or coercing appellant not to call character witnesses,
and for incorrectly deciding not to call character witnesses at
appellant's trial respectfully since several were available and willing
and trial counsel knew of their availability and willingness to testify.
PCRA counsel called trial counsel, Arthur Gilkes, Esquire, who testified relative
to his representation, at an evidentiary hearing. (N.T. 1, p. 16)1
Mr. Gilkes claimed the defense was reliant on whether Defendant "would be able
to convinc3e the jury of his innocence." (N.T. 1, p. 16)
Gilkes also testified the defense was 11putting [Defendant] on the stand to tell his
side of the story, and his whole fate rested on whether that jury found him believable
and credible and honest." (N.T. 1, p. 33)
Trial counsel testified that he did not call potential character witnesses, opinion
that he believed such witnesses to be unsophisticated people, who "would blow the
whole thing." (N.T. 1, pp. 18-19)
Mr. Gilkes could not offer any definitive reasons why he did not call witnesses
Jason Cutri, Serena Cutri, Stanley Marchetti, Robin Bane, Christina Meneas or Kimberly
Marchetti. (N.T. 1, pp. 27-29)
3
Defendant alleges that trial counsel admitted that he did not advise defendant
that it was his [defendant's] choice to call character witnesses.
PCRA Counsel also established that trial counsel did not call numerous character
witnesses who were available, and that he failed to interview them. (N.T. 1, pp. 48-53)
Several of the purported character witnesses would have testified that defendant had a
representation in the community as a non-violent, honest and law abiding citizen who
would have testified at trial. (N.T. 2, pp .• 2, 31-48)2
Despite the foregoing, the PCRA court found that trial counsel, Arthur Gilkes,
was not ineffective for failing to present character evidence at trial because the
defendant waived his right to do so. The law regarding ineffectiveness of counsel for
failure to present available character witnesses is set forth in Commonwealth v. Van
Horn, 797 A.2d 983 (Pa. Super. 2002). However, defendant's waiver, after a colloquy at
trial, is dispositive of the issue. The defendant indicated in the colloquy that he did not
wish to present character witnesses. The defendant also testified that he had discussed
with attorney Gilkes the right to call witnesses who would testify about his good
character for truthfulness or law-abiding nature in the community. The defendant
testified he did not wish to present such witnesses.3 (N.T. 3, pp. 494-496)
For these reasons, the Order denying PCRA relief should be affirmed.
1
N.T. 1 refers to Notes of PCRA Transcript dated 9/25/2013. Post Conviction Relief Act hearing.
2
N.T. 2 refers to Notes of PCRA Transcript dated 10/1/2013.
3
N.T. 3 refers to Notes of Trial Transcript, Volume IV, dated 3/11/2008.
4