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Commonwealth v. Tolentino

SUPERIOR COURT OF PENNSYLVANIA
Sep 15, 2016
No. 2752 EDA 2015 (Pa. Super. Ct. Sep. 15, 2016)

Opinion

J. S55017/16 No. 2752 EDA 2015

09-15-2016

COMMONWEALTH OF PENNSYLVANIA, v. VINCENT TOLENTINO Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.:

Former Justice specially assigned to the Superior Court.

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 court sentenced him to an aggregate term of 12½ 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 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 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 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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/15/2016

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Summaries of

Commonwealth v. Tolentino

SUPERIOR COURT OF PENNSYLVANIA
Sep 15, 2016
No. 2752 EDA 2015 (Pa. Super. Ct. Sep. 15, 2016)
Case details for

Commonwealth v. Tolentino

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA, v. VINCENT TOLENTINO Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Sep 15, 2016

Citations

No. 2752 EDA 2015 (Pa. Super. Ct. Sep. 15, 2016)