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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
DOMENIC TREVON GREEN,                       :          No. 1505 WDA 2017
                                            :
                          Appellant         :


               Appeal from the PCRA Order, September 14, 2017,
               in the Court of Common Pleas of Allegheny County
               Criminal Division at Nos. CP-02-CR-0005752-2015,
                            CP-02-CR-0013225-2014


BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                          FILED JUNE 1, 2018

      Domenic Trevon Green appeals from the September 14, 2017 order

filed in the Court of Common Pleas of Allegheny County that dismissed his

petition   filed   pursuant   to   the   Post   Conviction   Relief   Act   (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

      The PCRA court set forth the following:

             [Appellant] was originally charged at CC 201413225
             with a Violation of the Uniform Firearms Act:
             Persons Not to Possess a Firearm[,Footnote 1]
             Receiving Stolen Property,[Footnote 2] a Violation of
             the Uniform Firearms Act:       Carrying a Firearm
             without a License[,Footnote 3] and three (3) counts
             of       Recklessly       Endangering        Another
             Person.[Footnote 4]    [Appellant] filed a Pre-Trial
             Motion to Sever the Persons Not to Possess charge,
             which this Court granted and thereafter listed the
             charge at a new number, CC 201505752. Following
             a jury trial held before this Court on May 11-12,
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            2015 on the Persons Not to Possess charge only,
            [appellant] was convicted of the charge.       The
            remaining charges at the original information were
            nolle prossed by the Commonwealth. [Appellant]
            next appeared before this Court on August 10, 2015
            and was sentenced to a term of imprisonment of five
            (5) to 10 years. Timely Post-Sentence Motions were
            filed and were denied on August 27, 2015. The
            judgment of sentence was affirmed by the Superior
            Court on September 12, 2016.

                  [Footnote 1] 18 Pa.C.S.A. § 6105(a)(1)[.]

                  [Footnote 2] 18 Pa.C.S.A. § 3925(a)[.]

                  [Footnote 3] 18 Pa.C.S.A. § 6016(a)(1)[.]

                  [Footnote 4] 18 Pa.C.S.A. § 2705 –
                  3 counts.

            No further action was taken until December 15,
            2016, when [appellant] filed a pro se Petition
            pursuant to the [PCRA]. Suzanne Swan, Esquire,
            was appointed to represent [appellant] and an
            Amended Petition was subsequently filed on April 24,
            2017. After reviewing the Amended Petition, the
            Commonwealth’s Response thereto and the record in
            its entirety and giving the appropriate notice of its
            intent to do so,[1] this Court dismissed the Amended
            Petition without a hearing on September 14, 2017.
            This appeal followed.

            Briefly, the evidence presented at trial established
            that on August 2, 2014, Alexis Markey, her infant
            daughter, [appellant,] and several others were
            hanging out at her residence at the Cambridge
            Square Apartments in Monroeville. At some point,
            the gathering moved out to the parking lot and when
            everyone was getting into Markey’s vehicle,
            [appellant] got into an altercation with the others

1 On August 23, 2017, the PCRA court cancelled the scheduled hearing and
indicated its intent to dismiss the PCRA petition without a hearing. Appellant
did not respond within the allotted time to the intent to dismiss.


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            over who got to sit in the front passenger seat. He
            then pulled out a gun and threatened to “shoot the
            car up.” (Trial Transcript, p. 85). Monroeville Police
            Officers arrived on the scene shortly thereafter,
            having been summoned by an anonymous caller to
            911 who described [appellant] and the vehicle. Once
            all of the individuals had been removed from the car,
            Officer Brad Martin looked in the car and saw a
            firearm protruding from below the back of the front
            passenger seat, where [appellant] had been sitting.
            Alexis Markey and Patricia Kurn both gave
            statements to the Police indicating that the gun
            found belonged to [appellant].

Trial court opinion, 1/16/18 at 1-3.

      On October 16, 2017, appellant filed a notice of appeal.            On

October 17, 2017, the PCRA court ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On November 14, 2017, appellant complied with the order. The trial court

filed its Pa.R.A.P. 1925(a) opinion on January 16, 2018.

      Appellant raises the following issue for this court’s review:

            Did the [PCRA] court abuse its discretion in denying
            the PCRA petition insofar as [appellant] established
            the merits of the claim that [appellant] was denied
            the effective assistance of trial counsel who advised
            him not to testify on his own behalf, where counsel’s
            advice was so unreasonable as to vitiate
            [appellant’s] knowing and intelligent decision not to
            testify?

Appellant’s brief at 4 (capitalization omitted).2

2 Appellant also raises the issue that his claims for relief are properly
cognizable under the PCRA. Initially, appellant contends that he is eligible
for relief under the PCRA because his petition was timely filed; the issue he
raises here was not previously litigated, and the issue was not waived.
While that is true, it does not mean necessarily that he will prevail.


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     Proper appellate review of a PCRA court’s dismissal 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) (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.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”     Commonwealth v. Hickman,

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).

     Where the PCRA court has dismissed a petitioner’s petition without an

evidentiary hearing, as was the case here, we review the PCRA court’s

decision for an abuse of discretion.   See Commonwealth v. Roney, 79

A.3d 595, 604 (Pa. 2013), cert. denied, 135 S.Ct. 56 (2014) (citation

omitted). Moreover,

           the right to an evidentiary hearing on a
           post-conviction petition is not absolute. It is within
           the PCRA court’s discretion to decline to hold a
           hearing if the petitioner’s claim is patently frivolous
           and has no support either in the record or other
           evidence. It is the responsibility of the reviewing
           court on appeal to examine each issue raised in the
           PCRA petition in light of the record certified before it
           in order to determine if the PCRA court erred in its
           determination that there were no genuine issues of
           material fact in controversy and in denying relief
           without conducting an evidentiary hearing.




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Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal

citations omitted).

      To prevail on a claim of ineffective assistance of counsel under the

PCRA, a petitioner must plead and prove by a preponderance of the evidence

that counsel’s ineffectiveness “so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.”

42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must first establish

that “the underlying claim has arguable merit; second, that counsel had no

reasonable basis for his action or inaction; and third, that Appellant was

prejudiced.”      Commonwealth v. Charleston, 94 A.3d 1012, 1020

(Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014) (citation

omitted).      “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.”      Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied, 30 A.3d

487 (Pa. 2011) (citation omitted).      Additionally, we note that “counsel

cannot be held ineffective for failing to pursue a meritless claim[.]”

Commonwealth v. Hall, 867 A.2d 619, 632 (Pa.Super. 2005), appeal

denied, 895 A.2d 549 (Pa. 2006).

      Appellant contends that the trial court abused its discretion when it

denied the PCRA petition where appellant established the merits of the claim

that he was denied effective assistance of trial counsel who advised him not

to testify on his own behalf because he would be impeached with his prior



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conviction for robbery.      However, because his robbery conviction was

admitted for purposes of proving the offense charged, appellant asserts that

trial counsel’s advice was so unreasonable as to vitiate appellant’s knowing

and intelligent decision not to testify.

              In order to succeed on a claim that counsel was
              ineffective for failing to put [a defendant] on the
              stand, [an] appellant must prove either: (1) that
              counsel interfered with the defendant's right to
              testify, or (2) that counsel gave specific advice so
              unreasonable as to vitiate a knowing and intelligent
              decision to testify on his own behalf.

Commonwealth v. Lawson, 762 A.2d 753, 755 (Pa. Super. 2000) (internal

citation and quotation marks omitted). Additionally, “It is well settled that a

defendant who made a knowing, voluntary, intelligent waiver of testimony

may not later claim ineffective assistance of counsel for failure to testify.”

Id. (citations omitted).

      At trial, the trial court questioned appellant concerning his decision not

to testify:

              THE COURT: [Appellant], you have the right to
              testify. Do you understand that?

              [Appellant]: Yes, ma’am.

              THE COURT: And I understand that you are waiving
              your right to testify?

              [Appellant]: Yes, ma’am.

              THE COURT: And have you discussed this with your
              attorney?

              [Appellant]: Yes, ma’am.


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            THE COURT:       Has anybody promised you or
            threatened you in any way that may have influenced
            your decision?

            [Appellant]: No, ma’am.

            THE COURT: I’m going to accept the waiver.

Notes of testimony, 5/11/15 at 120.

      As appellant made a knowing, voluntary, intelligent waiver of

testimony at trial during the colloquy, he cannot now claim that counsel was

ineffective because he did not testify.

      Additionally, we agree with the trial court’s further analysis:

            Moreover, [appellant’s] argument also fails to
            consider the crimen falsi nature of the prior robbery
            conviction. Although the jury was already aware,
            through the Commonwealth’s introduction of the
            conviction, that [appellant] has a prior criminal
            history, [appellant] could also have been impeached
            pursuant to Rule 609 of the Pennsylvania Rules of
            Evidence given the crimen falsi nature of the
            robbery conviction.     Thus, despite knowing that
            [appellant] was already a criminal, the jury would
            have also questioned his honesty in all aspects of his
            testimony. To this end, counsel’s advice was most
            certainly, under any interpretation, reasonable.

            Further, [appellant] makes no averment how his
            testimony would have resulted in a different verdict.
            The evidence presented at trial established that the
            gun was found under the seat where [appellant] was
            sitting, and two (2) witnesses testified that the gun
            belonged to [appellant].         The evidence was
            straightforward and overwhelming.         Absent any
            indication how [appellant’s] testimony, impeached
            with crimen falsi, would have resulted in a different
            verdict, [appellant] has failed to establish the
            prejudice prong of the ineffectiveness test.



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Trial court opinion, 1/16/18 at 5 (citation to record omitted).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 6/1/2018




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