Com. v. Cavallero, A. ( 2021 )

J-S21042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGELO CAVALLERO III :
:
Appellant : No. 2200 EDA 2020
Appeal from the PCRA Order Entered October 20, 2020
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001919-2019
BEFORE: BOWES, J., OLSON, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED OCTOBER 06, 2021
Angelo Cavallero III appeals from the October 20, 2020 order, which
denied his first timely petition filed pursuant to the Post Conviction Relief Act
(“PCRA”) following a hearing. See 42 Pa.C.S.A. §§ 9541-9546. In his petition
and now on appeal, Cavallero singularly argues that his trial counsel was
ineffective for having not objected to certain video interviews of the victim
that were played to the jury. After a thorough review of the record, we
conclude that Cavallero has failed to demonstrate ineffective assistance and
affirm.
In summary, a fifteen-year-old victim reported to police that Cavallero
had sexually assaulted her. Resultantly, the Delaware County Children’s
Advocacy Center (CAC) interviewed the victim, which led to her describing
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 Retired Senior Judge assigned to the Superior Court.
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how Cavallero had touched her inappropriately. During that interview, the
victim identified that Cavallero grabbed her and rubbed her on multiple
occasions, tried to give her alcohol, and requested explicit photographs from
her. The victim also communicated that Cavallero had abused her mother,
explaining further that she was reluctant to tell the police about Cavallero’s
behavior for fear of further injury to her mother.
Approximately one year later, CAC interviewed the victim for a second
time. However, on this occasion, the victim stated that Cavallero had raped
her, which was distinct from anything mentioned in the first interview. In
addition, the victim discussed Cavallero’s consumption of pornography as well
as noting that Cavallero had a previous Protection from Abuse Act order
entered against him. See 23 Pa.C.S.A. §§ 6101-6122.
At trial, both CAC interviews were played without objection albeit with
some agreed-upon redactions. The Commonwealth presented no physical
evidence, relying instead on the credibility of the victim. Ultimately, the jury
found Cavallero guilty of rape by forcible compulsion, unlawful contact with a
minor, statutory sexual assault, sexual assault, and endangering the welfare
of a child.1 Cavallero received an aggregate sentence of seventy-two to one
hundred and forty-four months of incarceration followed by twenty-four
months of probation. Additionally, Cavallero was required to register as a Tier
III sexual offender.
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1 See 18 Pa.C.S.A. § 3121; 18 Pa.C.S.A. § 6318; 18 Pa.C.S.A. § 3122.1; 18
Pa.C.S.A. § 3124.1; and 18 Pa.C.S.A. § 4304, respectively.
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Cavallero did not file a direct appeal. Instead, Cavallero filed a counseled
PCRA petition, asserting that counsel was ineffective for allowing the CAC
interviews to be played for the jury. Correspondingly, the PCRA court held a
hearing on his petition.
During that hearing, trial counsel testified that he did not object to the
jury’s observance of the interviews because it was part of counsel’s trial
strategy. To discredit her testimony using her own words, trial counsel wanted
the jury to see inconsistencies in the victim’s testimony. The PCRA court then
dismissed Cavallero’s petition, finding that trial counsel was not ineffective.
Cavallero timely appealed his petition’s dismissal and presents this
Court with one issue for review: as Cavallero adequately demonstrated trial
counsel’s ineffectiveness, did the PCRA court err by dismissing his PCRA
petition? See Appellant’s Brief, at 4.
Preliminarily, we note our standard of review of an order denying PCRA
relief. “[W]e examine whether the PCRA court's determination is supported by
the record and free of legal error.” Commonwealth v. Mitchell, 141 A.3d
1277, 1283–84 (Pa. 2016) (citation and internal quotation marks omitted).
However, this examination is conducted in the light most favorable to the
prevailing party at the PCRA court level. See Commonwealth v. Mason, 130
A.3d 601, 617 (Pa. 2015). Accordingly, this Court will act only when a PCRA
court’s findings lack any kind of support in the certified record. See
Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014).
When PCRA relief is sought under the auspice of ineffective assistance
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of counsel, a petitioner must prove, by a preponderance of the evidence, that
his conviction or sentence resulted from the “[i]neffective assistance of
counsel which, in the circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of guilt or innocence
could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). Our Supreme Court
has cogently provided the sole successful pathway to successfully establish
ineffective assistance of counsel:
To prevail in a claim of ineffective assistance of counsel, a
petitioner must overcome the presumption that counsel is
effective by establishing all of the following three elements, as set
forth in Commonwealth v. Pierce, … 527 A.2d 973, 975-76
(1987): (1) the underlying legal claim has arguable merit; (2)
counsel had no reasonable basis for his or her action or inaction;
and (3) the petitioner suffered prejudice because of counsel's
ineffectiveness.
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (parallel citation
omitted). As to prejudice specifically, a petitioner must demonstrate that there
is a reasonable probability that but for counsel’s error or errors, the result of
the proceeding would have somehow been different. See Commonwealth v.
Reed, 42 A.3d 314, 319 (Pa. Super. 2012).
All three Pierce prongs must be met in order to succeed; failing to meet
even one of the prongs dooms the entire claim. See Commonwealth v.
Williams, 863 A.2d 505, 513 (Pa. 2004). Although implicitly identified above,
we note that the burden of proof is exclusively on the petitioner at every point
in this challenge. See Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa.
2007).
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Cavallero avers that had trial counsel contemporaneously objected to
the Commonwealth moving for permission to play the CAC interviews, the trial
court would have sustained that objection. See Appellant’s Brief, at 10.
Instead, “prejudicial and damaging evidence was heard during the course of
the [t]rial.” Id. In support, Cavallero highlights the admissions from trial
counsel, obtained during the PCRA hearing, that the interviews contained: (1)
statements implicating Cavallero in what was remembered to be multiple
Protection from Abuse Act orders; (2) references to Cavallero’s abusive
behavior against the victim’s mother; (3) a mentioning of Cavallero supplying
alcohol to the victim and other minors; (4) a noting of Cavallero’s abnormal
tendencies, such as standing over the victim’s mother and staring at her while
she was apparently sleeping; (5) a remark identifying Cavallero’s infidelity
with other women at the expense of the victim’s mother; and (6) an indication
that Cavallero consumed pornography. See id., at 10-13. Cavallero also
illuminates that his trial counsel declined any curative instruction connected
to the interviews when apparently offered one by the trial court. See id., at
13-14.
In his analysis of the Pierce factors, Cavallero states that all parties
agree that the first prong is met: that his claim is of arguable merit. See, e.g.,
Trial Court Opinion, 2/22/21, at 4. As to the second prong, Cavallero contends
that counsel had no reasonable basis to not object. See Appellant’s Brief, at
16 (identifying that had there been an objection, the CAC video would not
have been played to the jury. Moreover, Cavallero emphasizes the dialogue
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between the trial court and Commonwealth at sidebar regarding the damaging
nature of the videos). Cavallero concludes this prong by stating that “said
damaging evidence far outweighed any benefit from showing inconsistencies
as to the victim’s prior testimony.” Id., at 17 (conceding that “[t]his is a
matter resting almost exclusively as to the issue of credibility[]”). On the third
element, Cavallero simply argues that trial counsel’s inaction prejudiced
Cavallero’s case “to the extent that the outcome of the proceeding would have
been different had [t]rial [c]ounsel opted to exclude said evidence.” Id.
As to what constitutes “reasonable basis” in trial counsel’s action or
inaction, the PCRA court “does not question whether there were more logical
courses of action which counsel could have pursued; rather, the court must
examine whether counsel’s decisions had any reasonable basis.” Mason, 130
A.3d at 618 (internal brackets and citation omitted) (emphasis added).
Additionally, the fact that a strategy ultimately proves to be unsuccessful does
not make it unreasonable. Commonwealth v. Spotz, 896 A.2d 1191, 1235
(Pa. 2006).
As Cavallero, himself, acknowledges, this case was “almost exclusively”
decided based on credibility. Trial counsel determined the best course of action
would be to let the jury hear both interviews and, when taken in tandem with
the victim’s testimony at trial, observe for itself any kind of inconsistent
statements. Trial counsel’s strategy is readily apparent in his closing
argument:
I didn’t have to let you see any of [the interviews], but I wanted
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you to see that. And you would think, why would those wild
accusations against … Cavallero, why would I want the jury to see
those? And that’s because as you saw through the different
stories, the different testimony, the different dates, the story
changes, expands, shrinks, and honestly, matures along with [the
victim]. She changes the story.
Trial Transcript, 8/15/19, at 5-6. Trial counsel continued: “The reason why I
wanted [you] to see that video beyond the fact that she’s making wild
accusations at this point throughout the investigation three years. Accusations
have changed, shift[ed].” Id., at 8.
An evaluation of trial counsel’s closing argument yields a finding that he
attempted to accentuate every single dissimilarity between the victim’s
statements, spanning multiple years, or points to an attack on her credibility,
supported namely from content derived from the interviews. For example, trial
counsel stressed the fact that at the victim’s first interview, she made claims
that could have led to Cavallero’s criminal prosecution. However, Children and
Youth Services found no merit to her assertions, and no law enforcement
action was taken at that time. See id., at 7-8. In addition, trial counsel noted
the calm demeanor the victim had throughout the first interview, which was
in sharp contrast to her state at trial. The victim’s second interview focused,
in part, on Cavallero having raped her, which was not indicated in the first
interview. However, other bad acts she insisted Cavallero committed were
omitted from this subsequent interview. From all of this, trial counsel believed
his best strategy was to shine a light on the victim’s inherent inconsistencies
and ambiguities to discredit her underlying allegations.
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We further note that trial counsel did, in fact, request the redaction of
specific portions of the interview, and the Commonwealth coalesced around
this demand. See PCRA Hearing, 10/14/20, at 17-18.
A defendant is not entitled to have exclusively neutral or positive
information be entered into the record or observed by the jury. Despite the
unfavorable portions of the interviews, there was a rational basis for trial
counsel to desire these videos to be of record and viewed. Trial counsel saw
this evidence as the best refutation of the crimes in which his client was
charged, and we see no strong basis to contradict his determination. The fact
that trial counsel was ultimately unsuccessful is of no moment so long as it
was reasonable for counsel to act in this manner. Given his clear explanation
both at trial and in the subsequent PCRA hearing, we cannot say that it was
unreasonable for him to pursue this pathway by not objecting to the
introduction of the interviews. Accordingly, the second Pierce prong fails.
While not necessary to discuss given the failure of another prong,
Cavallero has also failed to demonstrate prejudice. Cavallero dedicates one
sentence of his brief to a bald assertion that the outcome of the proceeding
would have been different had there been an objection and subsequent
exclusion of the video interviews. Therefore, given this insufficiency, his claim
that he has suffered prejudice necessarily fails. See Paddy, 15 A.3d at 443
(identifying that “boilerplate allegations and bald assertions of … ensuing
prejudice cannot satisfy a petitioner's burden to prove that counsel was
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ineffective[]”).
As we have determined that Cavallero has failed to demonstrate that his
counsel was ineffective, we are constrained to affirm the PCRA court’s order.
Order denying PCRA relief affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2021
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