J. S55017/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

v. :

:

VINCENT TOLENTINO :

:

Appellant : No. 2752 EDA 2015

Appeal from the PCRA Order August 25, 2015

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0000017-2009

 CP-51-CR0000018-2009

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.* 

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 15, 2016

Appellant, Vincent Tolentino, appeals from the Order denying his first 

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541-46, without an evidentiary hearing. After careful review, 

we affirm.

The PCRA court’s Pa.R.A.P. 1925(a) Opinion includes a thorough and 

complete narrative of the facts and procedural history in this case, which we 

adopt for purposes of our disposition. See PCRA Ct. Op., 11/3/15, at 1-3. 

In sum, after a jury trial, Appellant was convicted of one count each of 

Burglary and Simple Assault, and two counts of Terroristic Threats. The 

 

*

Former Justice specially assigned to the Superior Court.
J. S55017/16

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court sentenced him to an aggregate term of 121⁄2 to 25 years’ incarceration. 

This Court affirmed the Judgment of Sentence and our Supreme Court 

denied allocatur. 

Appellant filed a timely PCRA Petition, which he amended after the 

appointment of counsel, raising claims of ineffective assistance of counsel. 

After providing Notice pursuant to Pa.R.Crim.P. 907, the PCRA court 

dismissed the Petition without a hearing. Appellant timely appealed.

In his brief, Appellant raises the following two issues for our review, 

which we have reordered for ease of disposition:

1. Whether the [j]udge was in error in not granting relief 

on the PCRA petition alleging counsel was ineffective.

2. Whether the judge was in error in denying [ ] 

Appellant’s PCRA petition without an evidentiary hearing 

on the issues raised in the amended PCRA petition 

regarding trial counsel’s ineffectiveness.

Appellant’s Brief at 9.

In Appellant’s first issue, he avers that the PCRA court erred in 

concluding his trial counsel was not ineffective. Id. at 17-30. We disagree.

“Our standard of review in PCRA appeals is limited to determining 

whether the findings of the PCRA court are supported by the record and free 

from legal error.” Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 

2009) (citation omitted).

In his Brief, Appellant argues counsel provided ineffective assistance 

because: (1) trial counsel failed to request a hearing to determine 
J. S55017/16

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Appellant’s competency to stand trial; (2) trial counsel failed to file a postsentence motion challenging the verdict as against the weight of the 

evidence; (3) trial counsel was ineffective in advising Appellant not to testify 

at trial; (4) trial counsel failed to request a lesser included charge instruction 

of trespass; and (5) trial counsel failed to interview and call as defense 

witnesses Michael Colosi and Thomas McLaughlin. See Appellant’s Brief at 

18-30.

In its November 3, 2015 Opinion, the PCRA court thoroughly and 

cogently addressed its reasons for concluding that none of Appellant’s 

allegations of ineffectiveness of trial counsel had merit. Our review of the 

record supports the PCRA court’s conclusions. Accordingly, with respect to 

Appellant’s first issue, we affirm on the basis of the PCRA court’s opinion. 

See PCRA Ct. Op. at 3-19.

In his second issue, Appellant claims the PCRA court erred in 

dismissing his Amended PCRA Petition without a hearing. Appellant’s Brief 

at 16-17. We disagree.

There is no absolute right to an evidentiary hearing, and a PCRA court 

has discretion to deny a PCRA petition without a hearing “if the PCRA court 

determines that the petitioner’s claim is patently frivolous and is without a 

trace of support in either the record or from other evidence.” 

Commonwealth v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006) (citation 

omitted). When the PCRA court denies a petition without an evidentiary 
J. S55017/16

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hearing, we “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.” 

Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004) 

(citing Commonwealth v. Hardcastle, 701 A.2d 541, 542-43 (Pa. 1997)).

As discussed supra, the trial court properly concluded that Appellant’s 

claims of ineffective assistance of trial counsel lacked merit. Therefore, 

since Appellant’s claims were “patently frivolous and [ ] without a trace of 

support in either the record or from other evidence[,]” we conclude that the 

trial court did not err in denying relief without conducting an evidentiary 

hearing. See Hart, 911 A.2d at 941.

The parties are instructed to attach a copy of the PCRA court’s 

November 3, 2015 Opinion to any further filings. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/15/2016
1 

person (REAP), and simple assault. On April 14, 2010, the Commonwealth filed a motion to 

·of terroristic threats, possession of an instrument of crime (PI Ct recklessly endangering another 

On November 30, 2008, Defendant was arrested and charged with burglary, two counts 

being without merit. This Court's decision should be affirmed. 

this opinion is whether this Court properly dismissed Defendant's petition without a hearing as 

merit. Defendant appealed the dismissal of his petition to the Superior Court. The sole issue in 

Defendant's reply to the 907 notice, this Court dismissed Defendant's petition as being without 

Counsel's amended and supplemental petitions, the Commonwealth's motions to dismiss and 

PROCEDURAL HISTORY AND FACTS 

ineffective assistance of counsel. After independent review of Defendant's pro_ se petition, PCRA 

Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq. (eff. Jan. 16, 1996), raising a claim based upon 

Defendant Vincent Tolentino filed a petition for relief pursuant to the Post Conviction 

OPINION 

BRINKLEY, J. NOVEMBER 3, 2015 

SUPERIOR COURT 

VINCENT TOLENTINO 2752 EDA 2015 

vs. 

CP-Sl-CR-0000017-2009 

CP-51-CR-0000018-2009 

COMMONWEALTH 

RECEIVED 

NOV p 3 2015 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIIAPPEALSJPOSTTRIAL 

CRIMINAL TRIAL DIVISION 

Circulated 08/30/2016 12:26 PM
2 

have a witness, Samuel Colosi ("Samuel"), be declared unavailable pursuant to Pa.R.E. 804(a)(4) 

and to allow the Commonwealth to admit his former testimony pursuant to Pa.R.E. 804(b)(l). 

On April 19, 2010, this Court granted the Commonwealth's motion to declare Samuel 

unavailable and allowed the Commonwealth to introduce the testimony that Samuel gave at the 

preliminary hearing with the exception of the testimony pertaining to his identification of 

Defendant. 

From May 17 to May 21, 2010, a jury trial was held in the presence of this Court, 

Defendant was represented at trial by John Konchak, Esquire. On May 24, 2010, the jury found 

Defendant guilty of burglary, both counts of terroristic threats, and simple assault. On October 7, 

2010, this Court sentenced Defendant to IO to 20 years state incarceration on the burglary charge 

and 2Yi to 5 years state incarceration on each charge of terroristic threats, to run concurrently 

with one another but consecutive to the sentence imposed on the burglary charge. This Court 

imposed no further penalty on the simple assault charge, for a total aggregate sentence of 12Yi to 

25 years state incarceration. On October 29, 2010, Defendant, through counsel, filed a Notice of 

Appeal to the Superior Court, On June 30, 2011, this Court filed its opinion in the matter. On 

April 20, 2012, the Superior Court affirmed the judgment of sentence. On May 17, 2012, 

Defendant filed a Petition for Allowance of Appeal with the Supreme Court of Pennsylvania. On 

November 8, 2012, the Supreme Court denied Defendant's Petition for Allowance of Appeal. 

On November 8, 2013, Defendant filed a prose petition pursuant to the PCRA, alleging 

ineffective assistance of counsel. On February 28, 2014, Peter A. Levin, Esquire, was appointed 

PCRA counsel. On October 20, 2014, Mr. Levin filed an amended petition alleging ineffective 

assistance of counsel based upon trial counsel's failure to request a hearing to determine 

Defendant's competency to stand trial, failure to file a post-sentence motion that the verdict was 
determining whether the PCRA court's findings are supported by the record and without legal 

merit. When reviewing the denial of PCRA relief, the appellate court's review is limited to 

This Court properly dismissed Defendant's petition without a hearing as being without 

I. THIS COURT PROPERLY DISMISSED DEFENDANT'S PETITION AS 

WITHOUT MERIT. 

3 

DISCUSSION 

I. WHETHER THIS COURT PROPERLY DISMISSED DEFENDANT'S 

PETITION AS WITHOUT MERIT. 

ISSUE 

petition to the Superior Court. 

petition as without merit. On September 11, 2015, Defendant appealed the dismissal of his 

motions to dismiss, and Defendant's reply to the 907 notice, this Court dismissed Defendant's 

petition, PCRA counsel's amended petition and supplemental petition, the Commonwealth's 

reply to the 907 notice. On August 26, 2015, after independent review of Defendant's pro se 

that his petition would be dismissed as without merit. On August 14, 2015, Defendant filed a 

On August 3, 2015, this Court sent Defendant a notice pursuant to Rule 907, indicating 

petition. 

On July 22, 2015, the Commonwealth filed a motion to dismiss Defendant's supplemental 

call Michael Colosi ("Michael") and Thomas McLaughlin ("McLaughlin") as defense witnesses. 

petition, adding an additional claim that trial counsel was ineffective for failing to interview and 

Commonwealth filed a motion to dismiss. On June 18, 2015, Mr. Levin filed a supplemental 

without counsel being present, and for advising Defendant not to testify. On May 6, 2015, the 

criminal trespass, failure to request a new trial due to the trial court's answering a jury question 

against the weight of the evidence, failure to request a lesser included charge instruction of 
4 

error. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339, 345 (2013) (citing 

Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4 (2001)). The court's scope of 

review is limited to the findings of the PCRA court and the evidence on the record of the PCRA 

court's hearing, viewed in light most favorable to the prevailing party, Commonwealth v. Fahy, 

598 Pa. 584, 959 A.2d 312, 316 (2008) (citing Commonwealth v. Duffey, 585 Pa. 493, 889 A.2d 

56, 61 (2005)). The burden is on the petitioner in the PCRA petition to demonstrate by a 

preponderance of the evidence that he or she is eligible for PCRA relief. 42 Pa.C.S.A § 9543. 

To establish trial counsel's ineffectiveness, a petitioner must demonstrate: ( 1) the 

underlying claim has arguable merit; (2) counsel had no reasonable basis for the course of action 

or inaction chosen; and (3) counsel's action or inaction prejudiced the petitioner. Commonwealth 

v. Freeland, 2014 PA Super 274, 106 A.3d 768, 775 (2014) (citing Commonwealth v. Pierce, 515 

Pa. 153, 527 A.2d 973 (1987)). A PCRA petitioner will be granted relief only when he proves, 

by a preponderance of the evidence, that his conviction or sentence resulted from the ineffective 

assistance of counsel which, in the circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could have taken place. 

Id. (citing 42 Pa.C.S. § 9543(a)(2)(ii)). Counsel's assistance is deemed constitutionally effective 

once the court determines that the defendant has not established any one of the prongs of the 

ineffectiveness test. Id. (citing Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa.Super.2008)) .. 

To establish prejudice, the defendant must show that there is a reasonable probability that the 

outcome of the proceedings would have been different but for counsel's action or inaction. 

Commonwealth v. Davido, 106 A.3d 611, 621 (Pa. 2014) (citing Commonwealth v. Williams, 

587 Pa. 304, 899 A.2d 1060, 1064 (2006)). 
DEFENDANT: Thorazine, Zoloft, Cogentin. 

THE COURT: What are you on, right now? 

DEFENDANT: I'm on psychiatric medication. 

5 

Right now, as you stand in this courtroom, are you under 

the influence of drugs or alcohol? 

"THE COURT: 

exchange took place: 

nature of the proceedings against him. After the Commonwealth had rested, the following 

trial, this Court conducted an extensive colloquy regarding Defendant's ability to understand the 

request a hearing to determine Defendant's competency to stand trial is without merit. During 

In the case at bar, Defendant's claim that trial counsel was ineffective for failing to 

prevail on a claim that counsel was ineffective for failing to obtain a competency hearing. Id. 

(2007)). Without evidence that he was actually incompetent to stand trial, the defendant cannot 

(citing Rainey, 928 A.2d at 236; Commonwealth v. Romero, 595 Pa. 275, 938 A.2d 362, 374-75 

believed, do not satisfy the defendant's burden to prove that he was incompetent to stand trial. Id. 

Assertions that there are substantial questions about the defendant's competency, even if 

nature of the proceedings against him or to participate in his own defense. Id. at 899-900. 

that he was incompetent, the defendant must establish that he was either unable to understand the 

prove, by a preponderance of the evidence, that he was incompetent to stand trial. Id. To prove 

Rainey, 593 Pa. 67, 928 A.2d 215, 236 (2007)). The burden, therefore, is on the defendant to 

Commonwealth v. Smith, 609 Pa. 605, 17 A.3d 873, 899 (2011) (citing Commonwealth v. 

competency to stand trial. A defendant is presumed to be competent to stand trial. 

Trial counsel was not ineffective for failing to request a hearing to determine Defendant's 

1. Trial counsel was not ineffective for failing to request a hearing to determine 

Defendant's competency to stand trial. 
counsel multiple times during trial that he wished to testify on his own behalf so that he could 

own defense. To the contrary, Defendant in his amended PCRA petition stated that he told trial 

that he was unable to understand the nature of the proceedings against him or to participate in his 

6 

Defendant responded, "Yes." Id. at 28-29. Moreover, Defendant has failed to offer any evidence 

sure that you understand everything that's going on and you do, is that right?", to which 

Court then stated to Defendant, "Well, the reason I'm asking you these questions is, I want to be 

(N.T. 5/21/2010 p. 26-27). After discussing the effects that his medication had on him, this 

I understand." 

Have you understood everything that's been done and said 

throughout the trial? 

Yes. 

And you've been here listening to the testimony that's said, 

right? 

Because rm charged with a crime. 

Why are you here today? 

Yes. 

Okay. Well, you understand why you're here for today, 

right? 

No. 

Okay, so you haven't had your medication for three days. 

A few days ago. With the trial being today, so when I go 

back to the prison, they will have the medication when I go 

back. 

Okay, when is the last time you took medication? 

They didn't give them to me. 

Did you take them today? 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 
justice' and that it "would not have granted a new trial on a weight of the evidence argument." 

found that "the jury's verdict was not so contrary to the evidence as to shock one's sense of 

Moreover, the PCRA court determined that even if the claim had been raised, it would have 

the evidence. See Commonwealth v. Luster, 2013 PA Super 204, 71 A.3d 1029, 1049. 

filed a post-sentence motion challenging the sufficiency of the evidence rather than the weight of 

misapplication of the law by the jury rather than a misapprehension of the facts and therefore 

weight of the evidence when trial counsel indicated that he believed the issue at trial involved a 

held that trial counsel was not ineffective for failing to raise a post-sentence challenge to the 

7 

arguably obtain some relief for the accused. Id. In Commonwealth v. Luster, the Superior Court 

baseless claims and counsel cannot be faulted for not advancing issues which will not at least 

490 Pa. 296, 416 A.2d 4 77 (1980)). This is so because an accused has no absolute right to raise 

v. Franklin, 2003 PA Super 165, 823 A.2d 906, 908 (2003) (citing Commonwealth v. Wilkerson, 

or on appeal, he is deemed to be ineffective only if the issue is of arguable merit. Commonwealth 

was against the weight of the evidence. If counsel fails to raise an issue in post-verdict motions 

Trial counsel was not ineffective for failing to file a post-sentence motion that the verdict 

2. Trial counsel was not ineffective for failing to file a post-sentence motion that 

the verdict was against the weight of the evidence. 

actually incompetent to stand trial. 

determine Defendant's competency to stand trial as there was no evidence that Defendant was 

Therefore, trial counsel could not be ineffective for failing to request a psychiatric evaluation to 

of the proceedings against him and actively sought to rationally participate in his own defense. 

there is every indication that, despite not taking his medication, Defendant understood the nature 

deny his involvement in the incident and explain what happened from his own perspective. Thus, 
8 

Under Pennsylvania law, a weight of the evidence claim concedes that the evidence was 

sufficient to sustain the verdict. Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053, 1067 

(2013) (citing Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751-52 (2000)). The 

weight of the evidence is "exclusively for the finder of fact who is free to believe all, part, or 

none of the evidence and to determine the credibility of the witnesses." Luster, 71 A.3d at 1049 

(quoting Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003)). A verdict is not 

contrary to the weight of the evidence because of a conflict in testimony or because the 

reviewing court on the same facts might have arrived at a different conclusion than the factfinder. Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (quoting Commonwealth v. Tharp, 

574 Pa. 202, 830 A.2d 519, 528 (2003)). Rather, a new trial is warranted only when the jury's 

verdict is so contrary to the evidence that it shocks one's sense of justice and the award of a new 

trial is imperative so that right may be given another opportunity to prevail. Id. 

In the case at bar, Defendant claimed that trial counsel was ineffective for failing to file a 

post-sentence motion that the verdict was against the weight of the evidence. As Defendant's 

underlying weight of the evidence claim was without merit, trial counsel was not ineffective for 

failing to file a post-sentence motion raising that claim. Margaret Curran ("Cmrnn") testified at 

trial that she was at her parents' home at 931 Cantrell Street on November 29, 2008 when 

Defendant knocked on the door and asked to see her brother, Michael. Curran further testified 

that she told Defendant that Michael was not home, at which time Defendant asked to speak with 

her father, Samuel, but Curran told Defendant to leave Samuel out of any issue he may have had 

with Michael. (N.T. 5/20/10 p. 6-9). 

Margaret Colosi ("Margaref') testified at trial that she was at her home at 931 Cantrell 

Street on November 30, 2008, when Defendant knocked loudly on her door and asked to see 
9 

Michael. Margaret further testified that, despite repeatedly telling Defendant that Michael was 

not home and that he was not allowed in the house, Defendant told her that he was coming in. 

Margaret stated that she started yelling and her husband, Samuel, who was attached to an oxygen 

tank, came to investigate. Margaret further stated that Defendant then punched Samuel multiple 

times and she fell to the ground, injuring her hand. Margaret testified that Defendant left the 

house and yelled that he would return to blow the house up. Id. at 26-53. 

After being declared unavailable for trial by this Court, the Commonwealth introduced 

the testimony that Samuel gave at the preliminary hearing. Samuel testified at the preliminary 

hearing that, at around 1:50 p.m. on November 30, 2008, he was sitting in the parlor at his house 

at 931 Cantrell Street when he heard someone banging on his door. Samuel further testified at 

the preliminary hearing that his wife answered the door, at which time Defendant pushed his way 

into their house. Samuel stated that his wife was yelling at Defendant to leave their house and he 

went over to try to help his wife. Samuel further stated that Defendant then punched him in his 

face, shoulders, upper arms and chest. Samuel testified at the preliminary hearing that he and his 

wife were eventually able to push Defendant out of their house, at which time he saw what 

appeared to be the handle of a gun in Defendant's waistband. Samuel further testified that 

Defendant said as he was leaving that he would be back and that he was going to "blow this f'ing 

house down." Samuel stated that Defendant did not have permission to enter their home and 

they called the police on him. (N.T. 12/30/2008 p. 5~9). 

Officer Joseph McCann ("Mccann") testified at trial that, on November 30, 2008, he 

responded to a radio call of a man with a gun at 931 Cantrell Street. McCann further testified 

that, upon arriving at the scene, he came into contact with Samuel and Margaret, who told him 

that Margaret had heard a loud banging at the door and, when she went to answer it, there was a 
10 

white male there who wanted to speak with Michael. McCann stated that Margaret told him that 

the male pushed his way into their house after she told him that Michael was not home and 

Samuel came to investigate after she started screaming. Margaret further told him that the male 

struck Samuel several times in the face and left in a car. McCann testified that Samuel's right 

eye was swollen and he was having difficulty breathing. McCann further testified that the police 

searched the neighborhood for a vehicle matching the description that Margaret gave and, upon 

finding and stopping one, the passenger got out of the car and ran away. McCann stated that the 

passenger was arrested a few blocks away and was identified as Defendant. McCann further 

stated that Defendant was taken back to 931 Cantrell Street, where Margaret and Samuel 

positively identified him as the man who attacked them. Id. at 106-20. 

Thus, the jury heard from multiple witnesses that Defendant entered the residence at 931 

Cantrell Street and asked to see Michael in an aggressive manner on two separate occasions in 

November 2008. The jury further heard from multiple witnesses that Defendant was told on both 

occasions that he did not have permission to enter the house and that, on the second occasion, 

Defendant became violent and assaulted Samuel and Margaret before threatening to do further 

harm to them. The jury also heard from multiple witnesses that Defendant punched Samuel 

multiple times, causing bruising and swelling, and the Commonwealth introduced photographs 

of Samuel's injuries. Defendant, on the other hand, argued that he did not have the intent to 

commit a crime when he entered their residence and that he did not intend to cause bodily harm 

to either Samuel or Margaret. However, this argument was belied by the evidence presented that 

Defendant came to the house in an aggressive manner on two separate occasions and then 

punched Samuel multiple times in various parts of his body after entering their house. Thus, the 

evidence presented at trial was consistent, credible and overwhelming that the Defendant entered 
11 

the Colosi's residence at 931 Cantrell Street without permission and with the intent to commit a 

crime. Furthermore, the evidence was consistent, credible, and overwhelming that, after 

Defendant entered their residence, he punched Samuel multiple times with the intention to cause 

bodily injury and threatened to cause more harm to them. Therefore, the jury's verdict was not 

so contrary to the evidence so as to shock one's sense of justice and any weight of the evidence 

claim advanced by trial counsel in a post-trial motion would have been without merit. 

Consequently, trial counsel was not ineffective for failing to file a post-sentence motion 

challenging the weight of the evidence. 

3. Trial counsel was not ineffective for advising Defendant not to testify. 

Trial counsel was not ineffective for advising Defendant not to testify. The appropriate 

standard for assessing whether a defendant was prejudiced by trial counsel's ineffectiveness 

regarding the waiver of his right to testify is whether the result of the waiver proceeding would 

have been different absent counsel's ineffectiveness. Commonwealth v. Walker, 2015 PA Super 

17, 110 A.3d 1000, 1005 (2015). Claims alleging ineffectiveness of counsel premised on 

allegations that trial counsel's actions interfered with an accused's right to testify require a 

defendant to prove either that "counsel interfered with his right to testify, or that counsel gave 

specific advice so unreasonable as to vitiate a knowing and intelligent decision to testify on his 

own behalf." Commonwealth v. Miller, 987 A.2d 638, 660 (2009) (citing Commonwealth v. 

Nieves, 560 Pa. 529, 746 A.2d 1102, 1104 (2000)). Counsel is not ineffective where counsel's 

decision to not call defendant was reasonable, such as where defendant could be impeached with 

his prior record of crimen falsi offenses. Commonwealth v. Daniels, 2010 PA Super 112, 999 

A.2d 590 (2010) (Commonwealth v. Whitney, 550 Pa. 618, 630, 708 A.2d 471, 476 (1998)). 

Where a defendant voluntarily waives his right to testify after a colloquy, he generally cannot 
12 

convictions for robbery that could have been introduced by the Commonwealth at trial as crimen 

(N.T. 5/21/2010 p. 29-30). As Defendant indicated during this colloquy, he had two prior 

Yes." 

Have you made that decision of your own free will? 

No. 

And did anyone threaten you, or force you or make you 

come to that decision? 

Yeah, because of my past record. 

And based upon those discussions with your lawyer, is it 

your decision not to give testimony in this case? 

Yes. 

Did you have an opportunity to discuss the advantages and 

disadvantages of giving testimony in this case with your 

lawyer? 

I can't testify. 

Okay. 

Yes, I don't wantNow your lawyer has indicated that you do not wish to give 

testimony in this case, is that right? 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

THE COURT: 

DEFENDANT: 

"THE COURT: 

colloquy, the following exchange took place: 

conducted a colloquy with Defendant regarding his decision not to testify at trial. During the 

not to testify at trial. This claim is without merit After the Commonwealth rested, this Court 

In the case at bar, Defendant claimed that trial counsel was ineffective for advising him 

22, 29 (Pa.Super.2002)). 

Rigg, 2014 PA Super 11, 84 A.3d 1080, 1086 (2014) (citing Commonwealth v. Peay, 806 A.2d 

argue that trial counsel was ineffective in failing to call him to the stand. Conunonwealth v. 
committing that offense must know he is not privileged to enter the premises. Burglary has no 

burglary do not merge. Id. at 402. Criminal trespass contains an element of knowledge-a person 

merger. Id. The plain language of the respective statutes demonstrates why criminal trespass and 

The "practical, hybrid approach" espoused in the Jones lead opinion is not the proper test for 

other does not. Id. (citing Commonwealth v. Taggart, 997 A.2d 1189, 1200-01 (Pa.Super.2010)). 

13 

Pennsylvania makes clear there is no merger if each offense requires proof of an element the 

regarding merger of criminal trespass and burglary, the current state of merger law in 

837 (2009)). Therefore, notwithstanding the plurality's conclusion in Commonwealth v. Jones 

219, 56 A.3d 399, 401 (2012) (quoting Commonwealth v. Baldwin, 604 Pa. 34, 985 A.2d 830, 

are included in the statutory elements of the other". Conunonwealth v. Quintua, 2012 PA Super 

that are based on a single criminal act unless all of the statutory elements of one of the offenses 

intent "to preclude the courts of this Commonwealth from merging sentences for two offenses 

Conunonwealth v. Baldwin held that the plain language of Section 9765 revealed a legislative 

of criminal trespass. In a majority decision, the Supreme Court of Pennsylvania in 

Trial counsel was not ineffective for failing to request a lesser included charge instruction 

4. Trial counsel was not ineffective for failing to request a lesser included 

charge instruction of criminal trespass. 

ineffective for advising him not to testify is without merit. 

threaten or force him to waive his right to testify. Thus, Defendant's claim that trial counsel was 

answers indicate that he made the decision on his own free will and counsel did not in any way 

Defendant has failed to prove that trial counsel interfered with his right to testify, as his colloquy 

the soundness of counsel's advice based upon his answers to this Court's colloquy. Moreover, 

introducing this evidence of Defendant's prior convictions and Defendant evidently agreed with 

falsi evidence. In advising Defendant not to testify, trial counsel acted reasonably to avoid 
14 

such knowledge requirement. Id. Burglary does, however, require intent to commit a crime 

within the premises, an element that criminal trespass lacks. Id. As each offense requires proof of 

an element the other does not, they should not merge. Id. Trial counsel cannot be ineffective for 

failing to request a lesser included charge instrnction of criminal trespass because criminal 

trespass is not a lesser included offense of burglary. Commonwealth v. Harrison, 444 Pa.Super. 

103, 663 A.2d 238, 238-39 (1995). 

In the case at bar, Defendant claimed that trial counsel was ineffective for failing to 

request an instrnction for a lesser included charge of criminal trespass. As the Superior Court 

reiterated in Ouintua, criminal trespass is not a lesser included offense of burglary, as each 

offense requires proof of an element the other does not. Consequently, Defendant's claim that 

trial counsel was ineffective for failing to request a lesser included offense instrnction for 

criminal trespass was without merit as criminal trespass is not a lesser included offense of 

burglary. 

Even if criminal trespass was a lesser included offense of burglary, Defendant was not 

prejudiced by trial counsel's failure to request a lesser included offense instruction as the 

evidence was more than sufficient to find Defendant guilty of burglary. The Commonwealth 

presented evidence from multiple witnesses that Defendant acted in an aggressive, bullying and 

violent manner when he entered the Colosi's property. Notably, after being told by Margaret 

that he did not have permission to enter their property, Defendant pushed Margaret and punched 

Samuel as he tried to gain access to their home. As the intent to commit a crime after entry may 

be inferred from the circumstances surrounding the entry, there was sufficient evidence for the 

jury to infer that Defendant intended to commit a crime within the Colosi's property based upon 

the violent and aggressive manner in which entered their residence. Thus, even if trial counsel 
trial court did no more than tell the jury that they were not permitted to have a copy of the trial 

denying Defendant's ineffective assistance of counsel claim, the Superior Court stated that the 

15 

counsel being present, that the jury had to rely on its memory of the testimony. Id. at 772. In 

Specifically, the jury asked to see a copy of the trial transcript and the court responded, without 

answered a jury question without counsel being present. See Freedland, 106 A.3d at 780. 

assistance of counsel claim based upon trial counsel's failure to object when the trial court 

In Commonwealth v. Freeland, the Superior Court denied Defendant's ineffective 

313 (2010)). 

v. Daniels, 104 A.3d 267, 296 (Pa. 2014) (citing Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 

parte communications with a jury resulted in prejudice in order to wan-ant relief. Commonwealth 

then the reason for the rule dissolves. Id. Pennsylvania law generally requires a showing that ex 

either that the court's actions may have influenced the jury or that its directions were erroneous, 

Commonwealth v. Bradley, 501 Pa. 25, 459 A.2d 733, 734 (1983)). Where there is no showing 

might occur. Commonwealth v. Freeland, 2014 PA Super 274, 106 A.3d 768, 779 (2014) (citing 

and to afford counsel an opportunity to become aware and to seek to correct any error which 

from communicating with a jury ex parte is to prevent the court from unduly influencing the jury 

answered a jury question without counsel being present. The reason for prohibiting a trial judge 

Trial counsel was not ineffective for failing to request a new trial after the trial court 

5, Trial counsel was not ineffective for failing to request a new trial after the 

trial court answered a jury question without counsel being present. 

included offense instruction as no prejudice accrued to Defendant from his failure to do so. 

lesser included offense of burglary, trial counsel was not ineffective for failing to request a lesser 

would have still found Defendant guilty of burglary. Therefore, even if criminal trespass was a 

had requested and was granted a lesser included offense instruction for criminal trespass, the jury 
16 

transcript and that the court's response was proper under Pennsylvania Rule of Criminal 

Procedure 646(C)(l). Id. at 779-80. The Superior Court further stated that, as the defendant's 

claim was therefore without arguable merit, trial counsel had a reasonable basis for declining to 

object and could not have been ineffective. Id. at 780. 

In the case at bar, Defendant claimed that trial counsel was ineffective for failing to 

request a new trial after this Court answered a jury's question without defense counsel being 

present. At 4:35 p.m. on May 21, 2010, the jury requested to see the transcript of Curran's 

testimony. With the Commonwealth attorney present but defense counsel absent, this Court 

indicated to the court officer to tell the jury that they would have to rely on their own memory 

and notes. (N.T. 5/21/2010 p. 137). Then, at 4:57 p.m., the jury informed this Court that they had 

reached a unanimous agreement on all charges except for two and were unable to come to an 

agreement on those two charges. Again with the Commonwealth present but defense counsel 

absent, this Court indicated that it would dismiss the jury for the day and tell them not to discuss 

the case over the weekend with anyone. Id. at 137-38. As in Freedland, the extent of this Court's 

ex parte conservations consisted of correctly informing the jury that they were not entitled to the 

transcript of a witness's testimony and then dismissing them for the day. Moreover, Defendant 

has not and cannot show that either of these ex pa rte communications resulted in prejudice to 

him. As there was no reasonable basis for trial counsel to object to either of these ex parte 

communications and no prejudice accrued to Defendant on the basis of either of them, trial 

counsel was not ineffective for failing to request a new trial after this Court communicated with 

the jury without defense counsel being present. 
17 

interview a witness claim overlaps with declining to call a witness since the petitioner must 

Dennis, 597 Pa. 159, 950 A.2d 945, 961 (2008)). In this respect, a failure to investigate and 

provided would have led to a different outcome at trial. Id. at 639 (citing Commonwealth v. 

must show that there is a reasonable probability that the testimony the witness would have 

demonstrate prejudice where the allegation is the failure to interview a witness, the petitioner 

witnesses. Id. Importantly, a petitioner still must demonstrate prejudice. Id. at 638-39. To 

investigation." Id. It can be unreasonable per se to conduct no investigation into known 

issue of arguable merit where the record demonstrates that counsel did not perform an 

Commonwealth v. Stewm1, 84 A.3d 701 (Pa.Super.2013)). The failure to investigate "presents an 

important way. Commonwealth v. Pander, 2014 PA Super 201, 100 A.3d 626, 638 (2014) (citing 

Neglecting to call a witness differs from failing to investigate a witness in a subtle but 

witness's testimony would have been helpful to the defense. Id. 

will not be found ineffective for failing to call a witness unless the defendant can show that the 

witnesses' testimony would have been beneficial under the circumstances of the case. Id. Counsel 

(Pa.2012)). To demonstrate the necessary prejudice, the defendant must show how the uncalled 

53, 63 A.3d 807, 810-11 (2013) (citing Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 

prejudicial as to have denied the defendant a fair trial. Commonwealth v. Matias, 2013 PA Super 

willing to testify for the defense, and that the absence of the testimony of the witness was so 

that counsel knew of, or should have known of, the existence of the witness, that the witness was 

must establish that the witness existed, that the witness was available to testify for the defense, 

When raising a claim of ineffectiveness for the failure to call a potential witness, the defendant 

Trial counsel was not ineffective for failing to call Michael and McLaughlin as witnesses. 

6. Trial counsel was not ineffective for failing to interview and call Michael 

Colosi and Thomas McLaughlin as defense witnesses. 
18 

With regard to Mcl.aughlin, Defendant simply claimed that he was the driver of the 

vehicle that Defendant got into after the incident. Defendant made no further showing as to what 

the content of McLaughlin's testimony could possibly be or how that testimony would have led 

to a different outcome at trial, especially considering that the sole interaction Defendant 

apparently had with McLaughlin occurred entirely after the crimes in question had been 

completed. Moreover, Defendant has failed to offer any proof whatsoever that McLaughlin was 

available and willing to testify at his trial. 

With regard to Michael, Defendant claimed that, if he were called to testify, he would 

have testified that Defendant had permission to enter the house and would have refuted the 

testimony the Commonwealth offered at trial, although Defendant did not specify exactly what 

testimony Michael would have refuted. However, Defendant failed to show that the absence of 

Michael's testimony was so prejudicial as to deny Defendant a fair trial. To the contrary, 

Margaret testified at trial that Michael was not home at the time of the incident and that she told 

prove: (i) the witness existed; (ii) the witness was available to testify; (iii) counsel knew of, or 

should have known of, the existence of the witness; (iv) the witness was willing to testify; and 

(v) the absence of the testimony was so prejudicial as to have denied the defendant a fair trial. Id. 

(citing Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297, 302 (2011)). 

In the case at bar, Defendant claimed that trial counsel was ineffective for failing to 

interview and call Michael and McLaughlin as witnesses. This claim is entirely without merit as 

Defendant has failed to show in any manner that trial counsel did not interview either Michael or 

Mcl.aughlin, that either of them would have been available and willing to testify for the defense 

at trial, and that the absence of their testimony was so prejudicial as to deny Defendant a fair 

trial. 
19 

Defendant that he did not have permission to enter their home. Samuel testified at the 

preliminary hearing that Defendant did not have permission to enter their home. Moreover, 

Curran testified at trial that, on the day prior to the incident, Defendant came to her parents' 

house to look for Michael and she told him that he did not permission to enter their home. Thus, 

the jury heard testimony from multiple witnesses that Defendant did not have permission to enter 

the property which therefore directly contradicted Michael's proposed testimony. Consequently, 

it is unclear how the absence of this testimony, especially in light of the fact that Michael was 

not even present in the house at the time of the incident, was so prejudicial to Defendant so as to 

deny him a fair trial. Furthermore, Defendant has failed to offer any proof that Michael was 

willing to testify on Defendant's behalf at trial, a failure that is particularly notable in light of the 

fact that Defendant was on trial for assaulting Michael's elderly parents. Therefore, Defendant's 

claim that trial counsel was ineffective for failing to interview and call Michael and McLaughlin 

as defense witnesses is without merit. 
20 

. pF) J. 

!J~ TH: COURT: 

f!JJO'l:i!et{L 

merit. Accordingly, this Court's decision should be affirmed. 

error. Defendant's PCRA petition was properly dismissed without a hearing as being without 

After review of the applicable case law, testimony and statutes, this Court committed no 

CONCLUSION