Com. v. Cafardi, S.

J-S20024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN CAFARDI,
Appellant No. 1235 WDA 2015
Appeal from the PCRA Order of July 14, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001133-2012
CP-02-CR-0013880-2012
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 4, 2016
Appellant, Shawn Cafardi, appeals pro se from the order entered on
July 14, 2015 that denied his petition filed pursuant to Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We glean our summary of the factual and procedural history of this
case from the trial court.
On January 3, 2012, Tracy Schmitt was in her living room at her
home on 300 Alries Street between 11:00 a.m. and noon, when
two masked and armed individuals entered her home through an
unlocked front door. The two intruders were dressed in black
hoodies and were wearing gloves, ski masks and sunglasses.
They did not say anything to Ms. Schmitt as they entered the
home, but immediately proceeded up the stairs and to the front
bedroom where Ms. Schmitt’s son, John Maggio, was sleeping.
Ms. Schmitt went up the stairs after the armed individuals, but
she was unable to enter John’s room because the door was being
held shut. Ms. Schmitt attempted to force her way into John’s
room by hitting the door with her shoulder. She eventually
broke the door off its hinges, entered the room and saw two
*Retired Senior Judge assigned to the Superior Court.
J-S20024-16
armed individuals, with one of them pointing a gun at her son,
John.
Upon waking, John asked if the armed men present in his room
w[ere] some kind of joke. In response, one of the men,
identified as [Appellant], pointed his gun at John and shot
towards his foot. John was not hit by the bullet, and his mother
told him to exit the house with her. Ms. Schmitt and John ran
next door to Ms. Schmitt’s mother’s house to call 911. Ms.
Schmitt told [the] 911 operator what was occurring and then
handed the phone to her mother. She and John went back
towards their house because Ms. Schmitt’s other son was still
there, sleeping in the attic bedroom of the house. As they ran
back towards their home, Ms. Schmitt and John saw the two
intruders running up the street and turning onto another street.
When John inspected his room after he and his mother arrived
home, he saw that his room was in disarray, with the mattress
flipped over and everything scattered throughout the room. He
noticed that one-quarter (1/4) ounce of marijuana and $35[.00],
which [he] kept on top of his dresser, were the only things
missing from his room. Later that evening, the bullet [fired] in
John’s bedroom was found in the living room of Ms. Schmitt’s
home.
During the police investigation of the home invasion, both Ms.
Schmitt and John Maggio identified one (1) of the two (2)
intruders as [Appellant]. [Appellant] had been best friends with
Ms. Schmitt’s oldest son, Mark Maggio, for approximately 15
years and had been in Ms. Schmitt’s home at least three (3)
times per week over those years. On the day before the home
invasion, [Appellant] and his father had been in the house and
had been in John’s bedroom smoking marijuana. Both Ms.
Schmitt and John Maggio described [Appellant] as having a
distinct waddling walk and a distinctive stance that made him
immediately identifiable to each of them.
Trial Court Opinion, 12/20/13, at 2-4.
The procedural history of this case is as follows:
A jury trial was held [] between October 25-26, 2012, at the
conclusion of which [Appellant] was found guilty of [r]obbery (18
Pa.C.S.A. § 3701(a)(1)(i)), [c]riminal [c]onspiracy (18 Pa.C.S.A.
§ 903(a)(1)) and [s]imple [a]ssault (18 Pa.C.S.A. § 2701(a)(3)).
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A non-jury trial on the severed charge of [p]erson [n]ot to
[p]ossess or [u]se a [f]irearm (18 Pa.C.S.A. § 6105(a)(1)) []
proceeded at the same time as the jury trial. Th[e trial] court
found [Appellant] guilty following that non-jury trial. On January
24, 2013, th[e trial] court sentenced [Appellant] to [six to] 12
years of incarceration, with credit for time served, for the
[r]obbery count, and [three and one-half to seven] years of
incarceration for the [p]ossession of a [f]irearm count, to be
served consecutively. [Appellant] filed [p]ost-[s]entence
[m]otions, which th[e trial] court denied following argument on
May 15, 2013.
[Appellant] took a direct appeal from his sentence, arguing,
among other things, that the evidence was insufficient to convict
him. On June 19, 2014, the Superior Court of Pennsylvania
affirmed [Appellant’s] of sentence. The Supreme Court of
Pennsylvania denied [Appellant’s] [p]etition for [a]llowance of
[a]ppeal on December 17, 2014.
On January 13, 2015, [Appellant] filed a pro se PCRA Petition.
On January 27, 2015, th[e PCRA] court appointed counsel for
[Appellant] and directed that an amended PCRA Petition be filed,
if such petition was warranted, within (90) days. Counsel
subsequently filed a motion for a private investigator, which was
granted on February 9, 2015. On May 19, 2015, th[e PCRA]
court granted [c]ounsel’s request for an extension of time to file
either an amended petition or a no-merit letter because
[c]ounsel was awaiting medical records that could have
supported [Appellant’s] claims. On June 10, 2015, [c]ounsel
filed a [p]etition to [w]ithdraw and [n]o-[m]erit [l]etter in
accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988).
After reviewing [c]ounsel’s [n]o-[m]erit letter and performing an
independent review of the record, th[e PCRA] court agreed that
[Appellant’s] claims were without merit. Accordingly, on June
17, 2015, th[e PCRA] court issued an order pursuant to
Pa.R.Crim.P. 907(1), notifying [Appellant] of the court’s intention
to dismiss his pro se petition without a hearing. [Appellant] was
given twenty (20) days to file a response to the proposed
dismissal order. On July 14, 2015, th[e PCRA] court issued its
final dismissal order. Unbeknownst to the court, [Appellant] had
filed a timely response to the proposed dismissal order, which
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th[e PCRA] court did not receive a copy of, due to a mailing
delay, until well after its final dismissal order had been issued.
Upon receipt and review of [Appellant’s] response, th[e PCRA]
court issued an order on August 11, 2015 that addressed the
issues raised in that response. Since [Appellant’s] response
merely [] reassert[ed] meritless claims that were addressed in
[c]ounsel’s [n]o-[m]erit Letter, th[e PCRA] court concluded that
final dismissal was still appropriate.
[Appellant] filed a timely [n]otice of [a]ppeal from the court’s
July 14, 2015 dismissal order. On August 17, 2015, th[e PCRA]
court ordered [Appellant] to file a concise statement of errors
complained of on appeal (“[c]oncise [s]tatement”) by September
8, 2015. [Appellant] subsequently filed a timely [c]oncise
[s]tatement, raising the following three (3) issues for review[.]
Trial Court Opinion, 11/10/15, at 1-4.
On appeal, Appellant raises the following questions for our review:
Whether Appellant was entitled to [p]ost-[c]onviction [c]ollateral
[r]elief in the form of a new trial as a result of being denied a
fair and impartial trial as a result of trial, appellate and PCRA
counsel’s ineffectiveness for not adequately challenging the
sufficiency of the evidence?
Whether Appellant was entitled to [p]ost-[c]onviction [r]elief in
the form of a new trial as a result of being denied a fair and
impartial trial as a result of trial, appellate and PCRA counsel’s
ineffectiveness in not presenting an alibi defense and certain
medical record(s) which would have corroborated Appellant’s
[a]libi defense?
Whether Appellant was entitled to [p]ost-[c]onviction [r]elief in
the form of a new trial as a result of being denied effective
assistance of counsel where trial/appellate counsel failed to
challenge an in-court identification?
Appellant’s Brief at 5.
All three of Appellant’s claims raise the alleged ineffective assistance of
prior counsel. As we have stated:
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[t]his Court’s standard of review regarding an order
dismissing a petition under the PCRA is whether the
determination of the PCRA court is supported by evidence of
record and is free of legal error. In evaluating a PCRA
court’s decision, our scope of review is limited to the
findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at
the trial level. We may affirm a PCRA court’s decision on
any grounds if it is supported by the record.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal
citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffectiveness 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).
Counsel is, however, presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,
Appellant must plead and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not
have some reasonable basis designed to effectuate his
interests; and, (3) but for counsel’s ineffectiveness, there is
a reasonable probability that the outcome of the challenged
proceedings would have been different.
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Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim.” Id.We have carefully reviewed the submissions of the parties, the opinion
of the PCRA court, and the record certified on appeal. Based upon our
review, we conclude that Appellant’s claims lack arguable merit and,
therefore, he is not entitled to relief. We briefly explain.
In his first claim, Appellant contends that he is entitled to relief
because trial, appellate, and PCRA counsel failed to challenge the sufficiency
of the evidence introduced to establish his identity as a perpetrator of the
instant offenses. Our review of the record confirms, however, that both trial
and direct appeal counsel contested the identification testimony introduced
against Appellant. After review, this Court concluded that there was ample
credible evidence to establish Appellant’s identity as one of the perpetrators
of the present crimes. As such, PCRA counsel correctly concluded that this
claim lacked merit. We see no error in the PCRA court’s dismissal of this
claim.
Appellant’s second claim avers that trial, appellate, and PCRA counsel
were ineffective in failing to present alibi witnesses and medical records to
establish that Appellant was receiving medical treatment at another location
at the time of the incident in question. However, the certified record,
including PCRA counsel’s no-merit letter, shows that Appellant’s alibi
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witnesses were unsure about the precise date on which Appellant received
medical treatment. In addition, Appellant’s medical records showed that he
received treatment on January 4, 2012, the day after the home invasion at
Ms. Schmitt’s residence. Thus, Appellant’s claim alleging prior counsel’s
ineffectiveness in failing to pursue an alibi defense is without merit.1
Lastly, Appellant alleges he is entitled to relief because trial and
appellate counsel failed to challenge an in-court identification procedure that
required him to stand up, remove his jacket, and briefly walk for the jury’s
observation. As the PCRA court observed in its opinion, and as PCRA
counsel recognized in his no-merit letter, this Court previously approved
courtroom demonstrations of this nature. See e.g., Commonwealth v.
Fernandez, 482 A.2d 567, 569 (Pa. Super. 1984) (privilege against
self-incrimination afforded by Fifth Amendment of United States Constitution
and Article I, Section 9 of Pennsylvania Constitution excludes only evidence
that is testimonial in nature not incriminating demonstrative or physical
evidence). As a result, Appellant is not entitled to relief on his third claim.
Order affirmed.
____________________________________________
1
The record establishes that Appellant received medical treatment in
January 2012 for a prior shooting incident. Trial counsel could reasonably
pursue a strategy that sought to avoid placing such information before a jury
deliberating armed robbery charges.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2016
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