J-S56025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DAVID ALLEN CAFFAS

                            Appellant               No. 1963 MDA 2013


               Appeal from the PCRA Order of September 9, 2013
                 In the Court of Common Pleas of Perry County
               Criminal Division at No.: CP-50-CR-0000515-2009


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                       FILED NOVEMBER 05, 2014

       David Allen Caffas (“Caffas”) appeals the September 9, 2013 order

dismissing his first, counseled petition under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

       The PCRA court summarized the factual history of the case as follows:

       At approximately 8:53 a.m. on August 11, 2009, Trooper Steven
       Arnold [(“Trooper Arnold”)] responded to a shooting at [Caffas’]
       residence. There, [Trooper Arnold] observed a lifeless Dan Miller
       [(“Miller”)]. Approximately three years prior to the date in
       question, [Caffas] had anonymously given, through [Miller],
       $300.00 to their mutual friends, Patrick and Pam Brown. On
       August 9, 2009, [Caffas] had requested repayment of $360.00
       and Patrick met [Caffas] at [Caffas’] residence, at which time
       they engaged in an argument regarding the money. [Miller’s]
       fiancée, Mary McCue, testified that, on that date, she had called
       [Caffas] and left messages to the effect that Patrick and Pam
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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       had brought the money to [Miller’s] home. [Caffas] testified to
       the contrary—that he was not aware that [Miller and his fiancée]
       had the money until the morning of the shooting. [Caffas]
       reported to [Trooper Arnold] that, on August 10, the marijuana
       grow room in his home had been destroyed, but did not relate
       that he believed that [Miller] had been involved.

       On the morning of the shooting, [Miller] arrived at [Caffas’]
       residence and told [Caffas] that “Rousta” (Patrick Brown) was
       going to kill [Caffas].[1] During their argument, [Miller] threw
       money in [Caffas’] yard, which was later determined to be
       $360.00. [Caffas] then entered the house and closed the door
       and locked it. On his fourth try, [Miller] knocked the door open,
       at which point [Caffas] reached for his air rifle and shot [Miller]
       in the chest. [Caffas] then called 911. . . .

                                      *        *   *

       After the police arrived, [Caffas] admitted to [Trooper Arnold]
       that he had been growing five or nine marijuana plants in his
       house. The police obtained a search warrant and executed it
       that day. The police discovered marijuana plants and pots that
       had been overturned. They continued searching outside the
       residence and followed a path into the woods, where they found
       four piles of marijuana plants, discarded like somebody just
       dumped them in a hurry. [Caffas] stated that they were his, but
       he had no idea how they got there. After taking the plants to
       the state police barracks at Newport, Trooper Jon Mearkle
       counted them and found there to be 93 plants. [Caffas] testified
       that he told Corporal Taylor[2] that up to 14 of the plants were
       his. On cross-examination, [Caffas] testified that probably about
       18 of the plants were his and that he had previously told police
       that he had only four or five because he wanted to try to keep it
       as low as possible.


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1
       Caffas had composed fliers which advertised Patrick Brown as a drug
dealer in retaliation for the unpaid loan. See Commonwealth v. Caffas,
Nos. 1213 and 1214 MDA 2011, unpublished memorandum at *2 (Pa. Super.
filed April 3, 2012).
2
       Corporal Taylor’s full name does not appear in the certified record.



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PCRA Court Opinion (“P.C.O.”), 2/5/2014, at 2-3 (internal quotation marks

and record citations omitted).

       The    Commonwealth         charged     Caffas   with   third-degree   murder,

aggravated assault, simple assault, recklessly endangering another person,

voluntary manslaughter, and involuntary manslaughter in one criminal

information;3 in a separate criminal information, Caffas was charged with

manufacturing a controlled substance and possession with intent to use drug

paraphernalia.4      On February 10, 2010, the Commonwealth moved to

consolidate the two indictments against Caffas. The trial court granted the

motion on March 11, 2010, with no objection from Caffas’ defense counsel.

Notes of Testimony, PCRA Hearing (“N.T. PCRA”), 7/16/2013, at 10.

       The trial court presided over a jury trial on both cases on August 23

and 24, 2010, in which the jury found Caffas guilty of manufacturing a

controlled substance, possession of drug paraphernalia, simple assault,

recklessly endangering another person, and involuntary manslaughter. The

jury acquitted Caffas of third-degree murder and voluntary manslaughter.

On October 7, 2010, the court sentenced Caffas to not less than eight and

one-half years nor more than twenty years in a state correctional institution.



____________________________________________


3
     See 18 Pa.C.S.A. §§ 2502(c),                 2704(a)(4),    2702(a)(4),   2705,
2503(a)(1), and 2504(a), respectively.
4
       See 35 P.S. §§ 780-113(a)(30) and 780-113(a)(32), respectively.



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      On October 18, 2010, Caffas timely filed post-sentence motions, which

the trial court denied by operation of law on June 27, 2011.         Caffas then

timely filed a notice of appeal on July 11, 2011. This Court determined that

Caffas’ sentence for manufacturing a controlled substance was in error, and

remanded for resentencing on April 3, 2012.           See Commonwealth v.

Caffas, Nos. 1213 and 1214 MDA 2011, slip op. at *8 (Pa. Super. filed April

3, 2012).    The trial court resentenced Caffas on August 2, 2012, to an

aggregate of not less than three and one-half years nor more than ten

years, plus a flat sentence of five years to be served consecutively in a state

correctional institution. Caffas did not file a direct appeal of his resentence.

      On January 29, 2013, Caffas timely filed a counseled, first PCRA

petition. See 42 Pa.C.S.A. § 9545(b)(1). The PCRA court held a hearing on

July 16, 2013, where Caffas and his trial counsel, Vincent Monfredo, Esq.,

testified. The PCRA court denied Caffas’ PCRA petition on August 9, 2013.

For unknown reasons, the order was not filed until September 9, 2013. On

September 18, 2013, Caffas timely filed a notice of appeal to this Court. On

November 6, 2013, the PCRA court ordered Caffas to file a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b). On November 22, 2013, Caffas timely filed his concise statement.

On February 5, 2014, the PCRA court issued a Pa.R.A.P. 1925(a) opinion.

      Caffas raises the following two issues on appeal:

      1. Whether trial counsel was ineffective for failing to oppose the
         Commonwealth’s motion to consolidate the two dockets
         against [Caffas?]

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      2. Whether trial counsel was ineffective for failing to introduce
         evidence showing that [Miller] had marijuana in his system at
         the time of his death[?]

Caffas’ Brief at 3.

      Our standard of review for PCRA claims is well-settled:

      Our standard of review of the denial of a PCRA petition is limited
      to examining whether the court’s determination is supported by
      the evidence of record and free of legal error. This Court grants
      great deference to the findings of the PCRA court if the record
      contains any support for those findings. Further, the PCRA
      court’s credibility determinations are binding on this Court,
      where there is record support for those determinations.

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)

(citations omitted).

      Caffas presents to this Court two challenges to the effectiveness of his

counsel at trial. Pursuant to the PCRA, a petitioner is only entitled to relief

when he pleads and proves that his conviction or sentence resulted from,

inter alia, 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 mandated that, to plead and prove a claim of

ineffective assistance of counsel, a petitioner must demonstrate that: (1) the

underlying claim has arguable merit; (2) counsel had no reasonable basis for

action or inaction; and (3) the petitioner suffered prejudice because of

counsel’s ineffectiveness.    See Commonwealth v. Pierce, 527 A.2d 973,



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975 (Pa. 1987). A petitioner’s claim of ineffectiveness will be denied if the

petitioner fails to meet any one of the three prongs under Pierce.

Commonwealth v. Williams, 863 A.2d 505, 513 (Pa. 2004). Trial counsel

is presumed to be effective and the petitioner bears the burden of proving

otherwise.   Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009).

“[I]t is axiomatic that [trial] counsel will not be considered ineffective for

failing to pursue meritless claims.”    Commonwealth v. Keaton, 82 A.3d

419, 426 (Pa. 2013) (citation omitted).

      In his first issue, Caffas claims that trial counsel was ineffective for

failing to oppose the Commonwealth’s motion to consolidate. Caffas’ Brief at

13, 17. We disagree, because Caffas has failed to demonstrate that there is

merit to his underlying claim.

      The Pennsylvania Rules of Criminal Procedure permit the joinder of two

separate indictments if the evidence from either offense would be admissible

in a trial for the other offense and is capable of separation by the jury

without confusion, or if the indictments are based upon the same act or

transaction. See Pa.R.Crim.P. 582(A)(1). We resolve this issue under the

first prong of Pa.R.Crim.P. 582(A)(1).       Our Supreme Court has developed

the Lark test for determining whether consolidation of two informations is

appropriate:

      (1) Whether the evidence of each of the offenses would be
      admissible in a separate trial for the other; (2) whether such
      evidence is capable of separation by the jury so as to avoid
      danger of confusion; and, if the answers to these inquiries are in


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      the affirmative; (3) whether the defendant will be unduly
      prejudiced by the consolidation of offenses.

Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997), citing

Commonwealth v. Lark, 543 A.2d 491, 496-97 (Pa. 1988).                See also

Commonwealth v. Natividad, 773 A.2d 167, 174 (Pa. 2001) (discussing

admissibility of evidence of other crimes where the conduct at issue is

closely related).

      The decision to consolidate separate indictments for trial rests solely

within the discretion of the trial court, and “will be reversed only for manifest

abuse of discretion or prejudice and clear injustice to the defendant.”

Commonwealth v. Morris, 425 A.2d 715, 718 (Pa. 1981) (citations

omitted).

      In the present case, Caffas states that “trying a drug dealer for a

homicide charge is a far different case than trying a homeowner who shot a

man after he broke in his door.” Caffas’ Brief at 12. The record, however,

indicates that the purpose of Miller’s visit to Caffas on the day of Miller’s

death was to resolve a loan that Caffas made to Patrick Brown.         See N.T.

PCRA at 13.         The record also demonstrates that Caffas printed a flier

claiming Patrick Brown had “the best pot in town.” Notes of Trial Testimony

(“N.T. Trial”), 8/23/2010, at 195.      Pamela Brown testified that the flier

contained Patrick      Brown’s address and phone        number.      N.T. Trial,

8/24/2010, at 17.       Caffas admitted to making the fliers because “[Miller]

bought marijuana from Patrick [Brown]. This was his drug dealer.” Id. at



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67-68. Caffas hoped to provoke a reaction from Miller. Id. Trooper Arnold

testified that the flier was recovered from the computer room in Caffas’

home. Id. at 16. Caffas also testified that some of the marijuana plants

recovered from his property belonged to Miller, and that, prior to their

dispute, Miller was storing them on Caffas’ property with Caffas’ permission.

Id. at 85.

      Based upon a close review of the record, it is clear that the parties’

relationship centered on drugs. In the context of this relationship, Caffas,

through Miller, lent Brown $300.00.      It has been alleged that Brown was

Miller’s drug dealer, and it was also alleged that Miller was storing marijuana

plants on Caffas’ property.     This relationship culminated with the act of

Caffas shooting Miller after an argument regarding the loan that Caffas had

made to Brown.      Here, if Caffas were to be tried separately for the two

informations, he would not be insulated from the evidence related to either

the homicide or the marijuana plants.          The relationship of the parties

encompassed the marijuana plants, the loan dispute, and, ultimately, the

shooting.    See Commonwealth v. Childress, 680 A.2d 1184, 1187 (Pa.

Super. 1996), appeal denied, 689 A.2d 231 (Pa. 1997) (holding that any

motion for severance lies in the sole discretion of the trial court).

      Caffas fails to satisfy the first element of the Lark test. The evidence

as to both the homicide and the drug offenses would be admissible in

separate trials, inasmuch as that evidence formed the natural development

of both cases, as the Court contemplated in Collins. See Collins, 703 A.2d

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at 423 (holding that a relationship between parties constituted case history

and evidence that would have been admissible for separate drug and

homicide charges, which merited consolidation).

        Caffas also fails to satisfy the second element of the Lark test:

whether the evidence for each charge is capable of separation by the jury so

as to avoid danger of confusion.        Id. at 422.      In Natividad, supra, our

Supreme Court affirmed the judgment of sentence following an appellant’s

consolidated jury trial for the early-morning robbery of one victim and the

first-degree murder of a second victim later that night.          Natividad, 773

A.2d at 173. In addressing the issue of jury confusion, the Court observed

that the evidence of the robbery of the first victim’s car circumstantially

identified the appellant as the shooter of the second victim, as he had been

seen driving that car, but “[g]iven the temporal separation and the distinct

nature of the conduct at issue in the two incidents, we believe that the jury

was capable of keeping the evidence separate as to each criminal act.” Id.

at 174.

        Here, similarly, although evidence of the drug and homicide offenses

would     be   mutually   admissible   as   previously   discussed,   the   conduct

supporting the drug charges (that is, the cultivation of marijuana on Caffas’

property) and the actions which led to the homicide charge (the shooting of

Miller) were temporally separate and distinct in nature.           Indeed, Caffas

concedes that “these are completely distinct crimes.” Caffas’ Brief at 14-15.

Therefore, we conclude that the jury in the present case was capable of

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separating the facts and evidence of the two informations without confusion.

Natividad, 773 A.2d at 173.         Thus, Caffas has not satisfied the second

element of the Lark test. See See Collins, 703 A.2d at 422.

      Finally, upon review of the record and Caffas’ brief, we conclude that

Caffas cannot successfully satisfy the third prong of the Lark test by

demonstrating prejudice.      Id.   As noted, not only was the jury capable of

separating the facts and evidence of the two informations without confusion

based upon the unique conduct at issue in each charge, see Pa.R.Crim.P.

582(A)(1), but also the evidence was overwhelming in support of either

charge such that no prejudice would result.       On direct appeal, a previous

panel of this Court determined that there was sufficient evidence to support

the convictions for each charge and to reject Caffas’ claims of self-defense.

See Commonwealth v. Caffas, Nos. 1213 and 1214 MDA 2011, slip op. at

*11 (Pa. Super. filed April 3, 2012) (holding, inter alia, that there was

“sufficient   evidence   to   establish   Appellant   constructively   possessed

marijuana plants; police found ‘grow room’ in Appellant’s house containing

remnants of marijuana plants; plants themselves were in rear of Appellant’s

house down well-worn foot path; [and] jury’s rejection of self-defense claim

was not against weight of evidence; jury heard evidence regarding argument

between Appellant and Victim and was free to reject self-defense claim”).

      Caffas now alleges that “the jury likely inferred from the drug offense

that Caffas had a criminal predisposition or was engaged in a criminal

lifestyle.” Caffas’ Brief at 15. However, “[a]rguing a potential for error is

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insufficient to obtain relief; actual error affecting the outcome of the

proceedings must be established.” Natividad, 773 A.2d at 174. Caffas has

not established any actual error arising from consolidation of the drug and

homicide charges, and thus has failed to demonstrate prejudice. 5 Because

Caffas   fails   to    satisfy    the    three    elements    of   the   Lark   test,   the

Commonwealth’s motion properly was granted.                   See Morris, 425 A.2d at

718 (holding that the decision to consolidate rests solely in the discretion of

the trial court and that reversal requires a showing of prejudice).

       Thus, we conclude that the underlying claim lacks arguable merit, and

that trial counsel was not ineffective for failing to oppose a motion that the

trial court properly granted. Keaton, 82 A.3d at 426. Because Caffas has

failed to prove the first prong under Pierce, we need not analyze the other

two    prongs     in   relation     to    trial   counsel’s   failure    to   oppose    the

Commonwealth’s motion to consolidate.                See Williams, 863 A.2d at 513.

Caffas’ first issue does not merit relief.

       In his second issue, Caffas claims that trial counsel was ineffective for

failing to present the toxicology report from Miller’s autopsy and for failing to

present to the jury the testimony of the pathologist who performed the

autopsy.     Caffas alleges that his trial counsel was ineffective due to his
____________________________________________


5
      In fact, the jury acquitted Caffas of the third-degree murder and
voluntary manslaughter charges, which tends to undermine Caffas’ claim
that the drug charges negatively “influenced the jury’s perception of his
actions in shooting Daniel Miller.” Caffas’ Brief at 15.



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failure to present evidence indicating that Miller’s blood and urine tested

positive for marijuana. Caffas’ Brief at 17-18. We disagree.

      We first address Caffas’ claim that trial counsel was ineffective for

failing to introduce the toxicology report.           Id. at 17.     Caffas claims that

evidence in the toxicology report that Miller was intoxicated at the time of

his death would have supported Caffas’ self-defense claim.                However, he

detrimentally     concedes    that   “the      report,    standing   alone,    was   not

admissible[.]”     Id.    As previously stated, “[trial] counsel will not be

considered      ineffective   for    failing     to      pursue    meritless    claims.”

Commonwealth v. Keaton, 82 A.3d 419, 426 (Pa. 2013) (citation

omitted). Thus, he cannot state a claim for ineffective assistance of counsel

on this ground.

      Instead, Caffas raises a derivative claim of ineffective assistance of

counsel, that “the testimony of the pathologist who prepared the report

would have been admissible.” Caffas’ Brief at 18. Preliminarily, we observe

that Dr. S. Land, who performed Miller’s autopsy, did not prepare the

toxicology report. At the PCRA hearing, the Commonwealth recalled that the

parties “stipulated that the coroner could testify to the toxicology report.”

N.T. PCRA at 38. Although the coroner testified on the second day of trial,

trial counsel did not elicit evidence about the toxicology report from him.

Id. at 40. Dr. Land did not testify at trial. Id. at 43. Nonetheless, Caffas

does not challenge counsel’s failure to admit the toxicology report through

the coroner, but specifically challenges the failure to call Dr. Land, not the

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coroner, as a witness for this purpose.6 See Caffas’ Brief at 17-18. Thus,

we will only address trial counsel’s failure to call Dr. Land.

       Our Supreme Court has stated that a petitioner must demonstrate the

following in order to prove that counsel was ineffective for failing to call a

witness: (1) the witness was available to testify; (2) counsel knew, or had a

duty to know, of the existence of the witness; (3) the witness was willing

and able to “cooperate and appear on behalf of the defendant”; and (4) the

testimony     must    have    been    necessary    in   order   to    avoid     prejudice.

Commonwealth v. Priovolos, 715 A.2d 420, 422 (Pa. 1998). “As [an

a]ppellant’s trial counsel is presumed to have rendered him effective

assistance, he will not be deemed ineffective for failing to call . . . witnesses

based solely on [a]ppellant’s unsubstantiated allegations concerning the

witnesses’     existence     and     willingness   to    testify     on   his     behalf.”

Commonwealth v. Lopez, 739 A.2d 485, 496 (Pa. 1999); see also

Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super. 2010) (applying

same standard to expert witnesses).

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6
       We observe that, “[e]ven without the records being introduced into
evidence, [a] physician could have expressed his medical opinion ‘. . . based
in part on reports of others which are not in evidence but upon which the
expert    customarily    relies  in  the   practice  of  his   profession.’”
Commonwealth v. Karch, 502 A.2d 1359, 1361 (Pa. Super. 1986)
(citations omitted). Thus, the toxicology report may have been admissible
via Dr. Land, with a proper foundation. Nonetheless, as discussed, infra,
Caffas has failed to carry his burden of proof to demonstrate that Dr. Land
would have so testified.



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      Caffas states that Dr. Land was never called to testify at trial regarding

the marijuana that was found in Miller’s system.          Caffas’ Brief at 18.

However, at no point did Caffas demonstrate, either in his PCRA petition or

at the PCRA hearing, that Dr. Land was, in fact, willing and available to

testify.   Priovolos, 715 A.2d at 422; N.T. PCRA at 43, 71.        A review of

Caffas’ brief and the record indicates that Caffas has failed to carry his

burden of proof on this most basic issue, either by presenting Dr. Land as a

witness at the PCRA hearing, providing an affidavit averring his willingness

to testify, or otherwise.   See Caffas’ Brief at 17-18; N.T. PCRA at 38, 71.

Thus, absent any evidence that Dr. Land would have testified on Caffas’

behalf regarding the contents of the toxicology report, we will not deem trial

counsel ineffective on this basis. See Lopez, 739 A.2d at 496. Accordingly,

Caffas’ second issue does not merit relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2014




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