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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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

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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.
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