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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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