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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
ROBERT MITAL,                             :          No. 1935 WDA 2016
                                          :
                         Appellant        :


               Appeal from the PCRA Order, December 12, 2016,
                in the Court of Common Pleas of Fayette County
               Criminal Division at No. CP-26-CR-0000075-2015


BEFORE: PANELLA, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JUNE 14, 2017

        Robert Mital appeals from the order of December 12, 2016, denying

his petition for post-conviction collateral relief.1 We affirm.

        On October 7, 2015, following a two-day jury trial, appellant was

found guilty of risking a catastrophe, two counts of recklessly endangering

another person (“REAP”), and criminal mischief.2       Appellant was found not

guilty of simple assault.3 (Notes of testimony, 10/6-7/15 at 85; docket #7.)

The trial court also found appellant guilty of the summary offenses of



1
 Although the order was dated December 8, 2016, it was not entered on the
docket until December 12, 2016.       We have corrected the caption
accordingly.
2
    18 Pa.C.S.A. §§ 3302(b), 2705, and 3304(a)(1), respectively.
3
    18 Pa.C.S.A. § 2701(a)(2).
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damage to real property by motor vehicle, reckless driving, and careless

driving.4 (Notes of testimony, 10/6-7/15 at 86; docket #7.) The charges

related to an incident on the afternoon of November 29, 2014, when

appellant drove his van into the residence of the victims, David and

Linda Kelly.     There was extensive damage to the residence, although

fortunately, no serious injuries.

        On November 4, 2015, appellant received a sentence of 1-2 years’

incarceration at count 1, risking a catastrophe; no further penalty was

imposed at the remaining counts.          (Docket #10, 15; notes of testimony,

11/4/15 at 4-5.)      Appellant did not file post-sentence motions or a direct

appeal; however, on August 11, 2016, appellant filed a timely pro se PCRA5

petition.    (Docket #16.)      Counsel was appointed and filed an amended

petition on appellant’s behalf.        (Docket #19.)       On December 12, 2016,

following an evidentiary hearing, the petition was denied. (Docket #23.) A

timely notice of appeal was filed on December 21, 2016, together with a

concise     statement   of   errors    complained    of    on   appeal   pursuant   to

Pa.R.A.P. 1925(b). (Docket #24, 25.) On January 11, 2017, the PCRA court

filed a Rule 1925(a) opinion. (Docket #28.)

        Appellant has raised the following issue for this court’s review:

“Whether       the   PCRA    court    erred   in   not    finding   defense   counsel,


4
    75 Pa.C.S.A. §§ 3717(c), 3736(a), and 3714(a), respectively.
5
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.


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Michael Garofalo, Esq., ineffective for failing to call Renae Androkovich as a

witness at trial?” (Appellant’s brief at 3 (capitalization omitted).)

      Initially, we recite our standard of review:

            This Court’s standard of review regarding an order
            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

            “To    prevail on a claim alleging counsel’s
            ineffectiveness, Appellant must demonstrate (1) that
            the underlying claim is of arguable merit; (2) that
            counsel’s course of conduct was without a
            reasonable basis designed to effectuate his client’s
            interest; and (3) that he was prejudiced by counsel’s
            ineffectiveness.” Commonwealth v. Wallace, 555
            Pa. 397, 407, 724 A.2d 916, 921 (1999), citing
            Commonwealth v. Howard, 538 Pa. 86, 93, 645
            A.2d 1300, 1304 (1994) (other citation omitted). In
            order to meet the prejudice prong of the
            ineffectiveness standard, a defendant must show
            that there is a “‘reasonable probability that but for
            counsel’s unprofessional errors, the result of the
            proceeding     would     have     been     different.’”
            Commonwealth v. Kimball, 555 Pa. 299, 308, 724
            A.2d 326, 331 (1999), quoting Strickland v.
            Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
            80 L.Ed.2d 674 (1984). A “‘[r]easonable probability’
            is defined as ‘a probability sufficient to undermine
            confidence in the outcome.’” Id. at 309, 724 A.2d at
            331, quoting Strickland, 466 U.S. at 694, 104 S.Ct.
            2052.



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Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal

denied, 832 A.2d 435 (Pa. 2003).        “We presume counsel is effective and

place upon Appellant the burden of proving otherwise. Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)

(citations omitted).

      Appellant argues that trial counsel, Attorney Garofalo, was ineffective

for failing to call Androkovich to the stand.6          Appellant claims that

Androkovich, his girlfriend at the time, would have testified that she saw

appellant sleeping in the vehicle, which was parked in her driveway, about

two hours before the incident.       (Appellant’s brief at 9.)     According to

appellant, Androkovich’s testimony would have confirmed his claim that he

was innocent of the charges because he was sleeping in his vehicle prior to

the incident.   (Id. at 10.)   Appellant claims that Attorney Garofalo knew

about Androkovich prior to trial and that she was available and willing to

testify. (Id. at 9-10.)

            To establish ineffectiveness for failure to call a
            witness, Appellant must establish that:        (1) the
            witness existed; (2) the witness was available;
            (3) counsel was informed of the existence of the
            witness or counsel should otherwise have known of
            him; (4) the witness was prepared to cooperate and
            testify for Appellant at trial; and (5) the absence of
            the testimony prejudiced Appellant so as to deny him
            a fair trial. A defendant must establish prejudice by

6
  Appellant withdrew an allegation that trial counsel was ineffective for failing
to file a direct appeal. (Notes of testimony, 12/8/16 at 3-4.)


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             demonstrating that he was denied a fair trial because
             of the absence of the testimony of the proposed
             witness.

Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal

denied, 860 A.2d 123 (Pa. 2004) (citations omitted).

       To put appellant’s ineffectiveness claim into context, we will briefly

summarize the evidence presented at trial.        Linda Kelly testified that at

approximately 1:40 p.m. on November 29, 2014, she looked out the living

room window and saw appellant’s van coming through her yard. (Notes of

testimony, 10/6-7/15 at 15-17.) The van smashed through their wall. (Id.

at 17-18.) Linda’s husband David suffered cuts on his arm and leg. (Id. at

23.)   Linda testified that appellant was seated in the driver’s seat of the

vehicle, behind the wheel. (Id. at 23-24, 30.) The impact from appellant’s

vehicle left a large hole in the side of the house. (Id. at 26.) The Kellys had

to live in a hotel for approximately one month. (Id. at 26, 31.)

       David Kelly testified that he was in the living room with Linda and their

dog when appellant’s van plowed through the side of the house.          (Id. at

33-34.) David testified that it was “like a bomb went off.” (Id. at 34.) The

force of the impact threw him against the wall. (Id. at 34, 36.) David got

the fire extinguisher from the garage because the front end of the van

landed on top of two 275-gallon oil tanks. (Id. at 37, 39.) David saw some

smoke and used the fire extinguisher on appellant’s vehicle. (Id. at 39-40.)

The police arrived approximately 10 minutes later. (Id. at 41.) David saw



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appellant exit the driver’s side of the vehicle.   (Id. at 37-38.)    The living

room was destroyed, necessitating $43,000 in repairs. (Id. at 38-40.)

       Officer Brandon Zuraw testified that when he arrived on the scene, he

observed a white van through the east side of the Kellys’ residence. (Id. at

45.) Officer Zuraw testified that appellant appeared to be intoxicated. (Id.

at 47.)   He had an odor of alcohol, slurred speech, and trouble standing.

(Id.) Appellant admitted that he was intoxicated. (Id. at 48.) Appellant

claimed he could not remember how the accident occurred. (Id. at 47-48,

51.)

       Appellant testified that he worked a night shift and arrived at

Androkovich’s house at approximately 7:30 a.m. on November 29, 2014.

(Id. at 59-60.)   Appellant testified that he had a few drinks and they got

into an argument.     (Id. at 60-61.)     At approximately 8:30-9:00 a.m.,

appellant went outside to sleep in the van “to avoid a confrontation.” (Id. at

61.)   Appellant testified that at some point, he woke up, was cold, and

turned the ignition on to warm up the van. (Id.) Appellant testified that he

was sleeping, lying across the two front seats.       (Id.)    The next thing

appellant remembered was a jolt and waking up to residential siding in his

windshield. (Id. at 62.) Appellant testified that he had to climb out of the

driver’s side window because the door was jammed.             (Id.)   Appellant

claimed that he was asleep and did not drive the van into the Kellys’ house.

(Id. at 68.)



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      At the PCRA hearing, appellant testified that he gave Attorney Garofalo

Androkovich’s name, address, and phone number 11 months before trial.

(Notes of testimony, 12/8/16 at 6, 14.)      Attorney Garofalo acknowledged

that he was aware of Androkovich but had decided not to call her as a

witness because the offenses with which appellant was charged do not

require an intentional act. (Id. at 22-23.) Furthermore, at the preliminary

hearing, no one actually identified appellant as the driver of the van, just

that he was at the scene. (Id. at 23.) So, Attorney Garofalo did not want to

put Androkovich on the stand to testify that appellant was in the van. (Id.

at 23, 26.)

      Androkovich testified that several hours before the incident on

November 29, 2014, she saw appellant in the van sleeping. (Id. at 15-17.)

She unsuccessfully tried to wake him up. (Id. at 16.) Androkovich testified

that, “I went back into my house, laid [sic] back down, and then in a little bit

after that my mother came screaming and running over [to] my house

pounding on my door saying the van’s in the neighbor’s house.”          (Id. at

16-17.) Androkovich did not see the collision. (Id. at 19.)

      We agree with the PCRA court that appellant was not prejudiced by

Attorney Garofalo’s decision not to call Androkovich as a witness where she

would not have offered relevant testimony. (PCRA court opinion, 1/11/17 at

3.)   Androkovich saw appellant sleeping in the van two hours prior to the

incident. (Id. at 2-3.) She did not see appellant immediately prior to the



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incident, and she did not witness the incident.    Therefore, her proffered

testimony was irrelevant.

      In addition, the offenses with which appellant was charged required

only recklessness, not an intentional criminal act. Even if the jury believed

appellant’s testimony that he had been sleeping in the front seat of the van

and did not intentionally drive it into the Kellys’ living room, it would not

have compelled a different result.   The PCRA court did not err in denying

appellant’s petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/14/2017




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