J-S17004-16

_____________________________ *Former Justice specially assigned to the Superior Court. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. ROBERT MARCHETTI Appellant No. 1952 WDA 2014

Appeal from the PCRA Order November 25, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0007143-2007
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 30, 2016 Appellant, Robert Marchetti, appeals from the orde r entered in the Allegheny County Court of Common Pleas, which denie d his first petition brought pursuant to the Post Conviction Relief Act (“PCRA”). 1 We affirm. In its opinion, the PCRA court fully and correctly sets forth the relevant facts and procedural history of this case. Therefo re, we have no reason to restate them. Appellant raises the following issue for our revie w:

DID THE [PCRA] COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE APPELLANT REGARDING THE ROLE AND NECESSITY OF CHARACTER WITNESSES, FOR

____________________________________________ 1 42 Pa.C.S.A. §§ 9541-9546.J-S17004-16

- 2 - IMPROPERLY ADVISING AND/OR COERCING APPELLANT NOT TO CALL CHARACTER WITNESSES, AND FOR INCORRECTLY DECIDING NOT TO CALL CHARACTER WITNESSES AT APPELLANT’S TRIAL, ESPECIALLY SINCE SEVERAL WERE AVAILABLE AND WILLING AND TRIAL COUNSEL KNEW OF THEIR AVAILABILITY AND WILLINGNESS TO TESTIFY? (Appellant’s Brief at 3). Our standard of review of the denial of a PCRA pet ition is limited to examining whether the evidence of record supports t he court’s determination and whether its decision is free of l egal error. Commonwealth v. Conway , 14 A.3d 101 (Pa.Super. 2011), appeal denied , 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains a ny support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied , 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to the court’s legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa.Super. 2012). Traditionally, c redibility issues are resolved by the trier of fact who had the opportuni ty to observe the witnesses’ demeanor. Commonwealth v. Abu-Jamal , 553 Pa. 485, 527, 720 A.2d 79, 99 (1998), cert. denied , 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Where the record supports the P CRA court’s credibility resolutions, they are binding on this Court. Id. The law presumes counsel has rendered effective as sistance. Commonwealth v. Williams , 597 Pa. 109, 950 A.2d 294 (2008). WhenJ-S17004-16

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asserting a claim of ineffective assistance of coun sel, the petitioner is required to demonstrate that: (1) the underlying cl aim is of arguable merit; (2) counsel had no reasonable strategic basis for h is action or inaction; and, (3) but for the errors and omissions of counsel, th ere is a reasonable probability that the outcome of the proceedings wou ld have been different. Commonwealth v. Kimball , 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong of the test for ineffe ctiveness will cause the claim to fail. Williams, supra

. “The threshold inquiry in ineffectiveness claims i s whether the issue/argument/tactic which counsel has foregone an d which forms the basis for the assertion of ineffectiveness is of arguable merit....” Commonwealth v. Pierce , 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Cou nsel cannot be found ineffective for failing to pursue a basele ss or meritless claim.” Commonwealth v. Poplawski , 852 A.2d 323, 327 (Pa.Super. 2004).

Once this threshold is met we apply the ‘reasonable basis’ test to determine whether counsel’s chosen course w as designed to effectuate his client’s interests. If we conclude that the particular course chosen by counsel had so me reasonable basis, our inquiry ceases and counsel’s assistance is deemed effective. Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omi tted).

Prejudice is established when [an appellant] demons trates that counsel’s chosen course of action had an adver se effect on the outcome of the proceedings. The [app ellant] must show that there is a reasonable probability th at, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermin eJ-S17004-16

- 4 - confidence in the outcome. In [ Kimball, supra ], we held that a “criminal [appellant] alleging prejudice mus t show that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Commonwealth v. Chambers , 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002) (some internal citations and quotation marks omitted). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of th e Honorable Kevin G. Sasinoski, we conclude Appellant’s issue merits no relief. The PCRA court’s opinion fully discusses and properly disposes of th e question presented. ( See PCRA Court Opinion, filed November 16, 2015, at 3- 4) (finding: trial counsel testified at PCRA hearing that defense reli ed on whether jury would find Appellant’s testimony credible to convince jur y of innocence; trial counsel testified he did not call potential charact er witnesses because they were unsophisticated and would “blow” case; PCRA co unsel established trial counsel failed to interview and call character witn esses to testify to Appellant’s non-violent, honest, and law-abiding na ture in community; nevertheless, trial counsel was not ineffective bec ause Appellant waived right to call character witnesses; court conducted colloquy at trial in which Appellant stated he did not wish to present charact er witnesses; at trial, Appellant testified he had discussed with trial cou nsel right to call witnesses to testify to Appellant’s good character, but he di d not wish to present these witnesses). The record supports the PCRA court’s d ecision; therefore, we have no reason to disturb it. Accordingly, we affi rm on the basis of theJ-S17004-16

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PCRA court’s opinion. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/30/2016

# ORIGiNAL . . .. . , . Michael Streily, Esq

. District Attorney's Office 4th Floor - Courthouse Pittsburgh, PA 15219 Scott Coffey, Esq. 216 Sharon Drive Pittsburgh, PA 15221 

## 0 \.U ..J COPIES TO : HON. KEVIN G. SASINOSKI Room 

### 507 - Courthouse 436 Grant Street Pittsburgh, PA 15219 BY : Appellant OPINION ' ROBERT MARCHETII, CC200707143 1952 WDA 2014 

### vs

. CRIMINAL DIVISION COMMONWEAL TH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA Circulated 02/29/2016 03:08 PM2

and the Petition for Allowance of Appeal was filed on June 6, 2012 and subsequently denied on September 25, 2012

. with the agreement of the Commonwealth , entered an order reinstating these rights , r equested his Petition for Allowance of Appeal rights be reinstated. The PCRA court, appointed to represent defendan t. The PCRA was amended , where i n defendant Pet i t i on for Allowance of Appeal to the Supreme Court was filed

. Subsequently , on August15 ., 2011 , defendant filed a pro-se PCRA Petition and Scott Coffey , Esquire was No

. 1758 WDA 2008, which aff i rmed the judgment of sentence on March 3 1 , 201 

### O. No Post sentence motions were denied, and a timely appeal to Superior Court was filed at i mprisonment on June 24 , 2008 at CC200707143 in Allegheny County , Pennsylvan i a

. Defendant was convicted of first degree murder and sentenced to life at No. 1952 WDA 2014

. Statement of Matters Complained of on Appeal. This opinion is filed in response thereto Th i s is an appeal of the Order of Court denying defendant ' s amended PCRA petition on November 25, 2014

. Defendant filed a timely Notice of Appeal and Sas i noski , J. OPIN I ON ROBERT MARCHETTI,

Appellant CC200707143 1952 WDA 2014 vs

. CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA3

Marchetti. (N.T. 1, pp. 27-29) Jason Cutri , Serena Cutri, Stanley Marchetti, Robin Bane, Christina Meneas or Kimberly Mr. Gilkes could not offer any definitive reasons why he did not call witnesses whole thing." (N.T. 1, pp. 18-19) that he believed such witnesses to be unsophisticated people, who "would blow the Trial counsel testified that he did not call potential character witnesses, opinion side of the story, and his whole fate rested on whether that jury found him believable and credible and honest." (N.T. 1, p. 33) Gilkes also testified the defense was 11 putting [Defendant] on the stand to tell his to convinc3e the jury of his innocence." (N.T. 1, p. 16) Mr. Gilkes claimed the defense was reliant on whether Defendant "would be able PCRA counsel called trial counsel, Arthur Gilkes, Esquire, who testified relative to his representation, at an evidentiary hearing. (N.T. 1, p. 16) 1 1

. The Trial Court erred in denying appellant's PCRA Petition since trial counsel was ineffective for failing to advise appellant regarding the role and necessity of character witnesses, for improperly advising and/or coercing appellant not to call character witnesses, and for incorrectly deciding not to call character witnesses at appellant's trial respectfully since several were available and willing and trial counsel knew of their availability and willingness to testify. allegation of error: Statement of Matters Complained of on Appeal, Defendant alleges the following the court held several hearings on this matter. The PCRA court denied relief and the defendant appealed at 1942 WDA 2014 on I 

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### I 

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. In his timely 1925(b) Coffey, Esquire, was appointed to represent defendant. The petition was amended and Defendant again filed a pro se PCRA petition on October 15, 2012, and Scott1 N.T. 1 refers to Notes of PCRA Transcript dated 9/25/2013. Post Conviction Relief Act hearing. 2 N.T. 2 refers to Notes of PCRA Transcript dated 10/1/2013. 3 N.T. 3 refers to Notes of Trial Transcript, Volume IV, dated 3/11/2008. 4 wish to present character witnesses. The defendant also testified that he had discussed with attorney Gilkes the right to call witnesses who would testify about his good character for truthfulness or law-abiding nature in the community. The defendant testified he did not wish to present such witnesses.3 (N.T. 3, pp. 494-496) For these reasons, the Order denying PCRA relief should be affirmed. trial, is dispositive of the issue. The defendant indicated in the colloquy that he did not Horn, 797 A.2d 983 (Pa. Super. 2002). However, defendant's waiver , after a colloquy at failure to present available character witnesses is set forth in Commonwealth v. Van defendant waived his right to do so. The law regarding ineffectiveness of counsel for was not ineffective for failing to present character evidence at trial because the Despite the foregoing, the PCRA court found that trial counsel, Arthur Gilkes, would have testified at trial. (N.T. 2, pp .• 2, 31-48) 2 representation in the community as a non-violent, honest and law abiding citizen who Several of the purported character witnesses would have testified that defendant had a witnesses who were available, and that he failed to interview them. (N.T. 1, pp. 48-53) PCRA Counsel also established that trial counsel did not call numerous character that it was his [defendant's] choice to call character witnesses. Defendant alleges that trial counsel admitted that he did not advise defendant