J. S55017/16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENN SYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : v. : : VINCENT TOLENTINO : : Appellant : No. 2752 EDA 2015 Appeal from the PCR A 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 Tole ntino, 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 in cludes 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 Burglar y 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 P CRA 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 ju dge 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 PC RA 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 determineJ. S55017/16

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Appellant’s competency to stand trial; (2) trial counsel failed to file a post
sentence 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 c harge 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 o f 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 evide ntiary 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.” Commo nwealth v. Hart , 911 A.2d 939, 941 (Pa. Super. 2006) (citation omitted). When the PCRA court denies a petition without an evidentiaryJ. 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 determ ine 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 Co mmonwealth 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 frivol ous 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 atta ch 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: 9/15/20161

person (REAP), and simple assault. On April 14, 2010, the Commonwealth filed a motion to ·of terroristic threats, possession of an instrument of crime (PICt recklessly endangering another On November 30, 2008, Defendant was arrest e d 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 NOVEMBER 3, 2015 BRINKLEY, J. SUPERIOR COURT 2752 EDA 2015 VINCENT TOLENTINO 

### 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 PM2

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 petiti o n 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 wasdetermining 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 in s truction of4

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 e ffective 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)).Thorazine, Zoloft, Cogentin. DEFENDANT: What are you on, right now? THE COURT: I'm on psychiatric medication. DEFENDANT:

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 giv e 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 the r efore 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 cl aim 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. Widme r , 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 thereviewing 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 ofjustice 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") testifi e d 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 see9

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, h e 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 p ush 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 th e 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 a10

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 an d that, on the second occasion , Defendant became violent and assaulted Samuel and Mar garet 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 man n er 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 entered11

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 ofjustice 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 th at offe ns e must kno w he is n ot priv ile ged to e n te r the prem i s es . Bu r gl ary h as no

bur g l ary do n o t merge. Id. at 4 02. C rimin al tres pa ss co ntai ns an e l eme nt of knowl e d ge - a p er son m e r ge r. Id

. T h e pl ain l an gu age of th e resp ec ti v e s t atutes d emo n s trates wh y cri min al tr es p ass an d The " prac ti c al , hybri d appr oa ch" e sp oused i n the Jon es l ea d o pin ion i s n o t the p rope r t es t fo r other does not. Id. (c iting C o mm o nw ea lth v. Tag gart, 997 A. 2 d 1 189, 12 0 0-01 (P a .Sup e r . 2010)).

13 P e nn sy lv an i a make s clear there i s n o me r g er if ea c h o ff ense requi re s pro of o f an e l e ment the r e gar ding m e rge r o f cri mi nal tr es p ass an d bu r glary, th e cu rre nt state of mer g e r l aw in 837 (2009))

. Ther e fore, n o twithst an d i ng th e p lu ra lity 's co nc lus i on i n Co mmo nw ea lth v. Jo n e s 21 9 , 

### 56 A.3 d 399, 401 (20 12) (qu o ting Common wea lth v. Ba ldwin , 604 Pa. 34, 98 5 A.2d 8 30, are in clud ed i n th e statuto ry e lem en t s of th e o the r "

. C onun on we a lth v. Quintua, 2 012 P A Super th at ar e ba se d on a si n g le crimina l ac t unl e s s all of th e s t atu tory e l e m e n ts of o n e of the offe n ses int e nt "to p rec lude th e courts o f thi s C om mo nwe a lth fr om me rgin g sent en c e s for two o ffe nse s Conunonw ea lth v

. Ba ldw i n held th at the p l ain l ang uage of Secti on 9765 re veal e d a legi s l ative of c ri min al tr es p ass . In a m a j o rity d e cision , the Su p rem e Co urt o f Pe nnsyl vani a i n Tri al coun se l wa s no t in effec tiv e for fail i n g t o requ es t a l e ss er i n c luded c h arge in stru c ti on 4. Tri al couns e l wa s n o t in e ffective for failing to re qu e st a less er included ch ar ge instruction of criminal tr es pass . in e ffe c tive for advis in g h im not t o t e sti fy is with o u t m e ri t. thr eaten or force hi m to w aive h i s ri ght t o te stify

. T hus, Defe nd an t ' s cl aim that tri al co uns el w as an sw er s i nd icate th at he m a d e th e d ecisi o n o n hi s ow n fr e e will and coun se l did no t in any way D efe ndant h as fail e d to p ro ve th at tria l c ounse l in ter fer e d with hi s rig ht t o t esti fy, as hi s c oll o qu y th e soundn es s of co uns e l ' s a dvi ce b a sed u po n hi s ans w e r s t o th is C ourt ' s collo quy. Mo reo ve r , intro duci ng this evid enc e of De fen dan t' s prior c o n v icti ons and Defe nd an t evid en tly ag r e e d with fals i evid ence. I n a d v isi ng D efen dant no t t o te s tify, tri al cou n se l act ed r eas on ab l y to av o id14

su c h kn o wl edg e r eq uir em e n t. Id. B u rg lary doe s , howe v er, re qui r e int e nt to com mi t a cri m e with i n the p re mise s , an elem e nt th at crimin al tre spa s s la cks

. I d. As e ach offe ns e req uir es pro o f o f

an e l e ment th e oth e r does n ot, th ey s hould n ot m erge. I d

. Tri al cou n s el cann o t b e ineffectiv e for failin g to r equ es t a l ess er in c lud ed ch ar ge in strn c tion of c rimin al tr esp a ss be c au se c ri min al
tre s p a s s is no t a le s s e r incl u d e d o ff en s e of bur g l ary. Co mm o nw ea lth v . Harrison , 4 44 P a . S uper. 103 , 6 63 A.2 d 238, 2 38-39 ( 1 9 95)

. In th e ca s e at bar, D efe nd an t cl ai m e d that tri al cou n s e l w as i neffe cti ve for fail i n g to
requ es t an in s trn c ti on for a l ess er in c lud e d char ge of crimin al tre s p a s s . A s th e Su p e ri o r Cou rt reiterated in Ouintua, c rimin al tre spass i s n o t a l esse r in c l ude d off e n se o f bur g l ary, as e a c h off e n s e requires pro o f of an e l e ment the oth e r doe s not. C on s equ e ntl y , D efe nd an t 's c lai m that
tri al c oun s el was in effe c tiv e for faili n g t o r eques t a l e sse r i nc lu ded offen s e i n s trncti on for cri mi nal tr espa ss w a s with o ut m e rit as c ri mi n a l tr espa s s i s not a l esser in clude d off e n s e of bur g l ary. E v e n i f c ri mi nal tre s p as s w as a l esse r inclu de d o ff e nse of bu rg lary , D e fe nd ant w as n o t
p r e j udi c e d by trial co un se l ' s failur e to r equ es t a l e sse r in cl u d e d offense instructi on a s th e

e vi de nc e w as mo r e th an s u ffic i e n t to fi n d Defend ant g u i l ty of b u rg l ary . T h e Com m o nwe a lth
prese n te d ev i de n ce fro m multipl e witn esse s th at Defe nd an t ac t e d in an a g g r ess iv e, bull y i n g an d

v iol e n t mann e r w hen he e n t er e d th e Co l os i 's property . N o t ably , afte r b e i ng t ol d b y M argare t th at h e did n ot h av e pe rmi ss i o n to e n te r th eir pro p erty, D efe nd an t p u s h e d Mar g ar e t an d pun c hed Samu e l as h e tri e d t o gain a cce s s t o th eir home

. As th e i nt e nt t o comm it a crime aft e r e n try may be inf e rred fr o m th e c i rc um s t ance s s u rroun din g the e ntry, th e r e w as s uffi cie nt ev i dence for th e j u ry t o i nfe r th at D e f

endan t intend e d t o c omm it a crime w ithi n th e Co losi 's p rop erty b ase d upo n th e v io l e nt an d aggress i ve ma nn er i n whi ch en t e r e d th e ir r e s i de n c e . T h us, eve n if tri al cou n se ltrial 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 jury16

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 r easonable 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 o f 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 th e witness would hav e 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 witn ess'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 circumstanc e s 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 th e 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 d e nied 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 the r efore 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.

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