J-S37012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 EDGAR CASONOVA                          :
                                         :
                   Appellant             :    No. 88 EDA 2018

               Appeal from the PCRA Order December 4, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0000997-2014


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 17, 2019

      Edgar Casonova appeals from the December 4, 2017 order denying

PCRA relief. We affirm.

      On September 14, 2013, Brian Kane and his two sons went to a

makeshift barbershop located in the basement of 1537 Hunting Park Avenue.

While Mr. Kane was waiting to get his haircut, his cell phone disappeared. Mr.

Kane suspected Appellant of taking the cell phone, and first asked him, and

then accused him, of taking the phone.       According to Mr. Kane, Appellant

denied that he had the phone, and left the barbershop.

      Mr. Kane testified he later confronted Appellant again outside on the

steps leading to the upstairs residence at 1537 Hunting Park Avenue, which

was Appellant’s home. According to Mr. Kane, it started with a shouting match

in the front yard, and when he took a step toward Appellant, Appellant pulled

out a knife hidden behind his back and stabbed Mr. Kane in the back. As Mr.
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Kane struggled with Appellant, Appellant stabbed him eight more times,

puncturing his lung. Upon seeing the victim fall, Appellant dropped the knife

and ran into his home. N.T. (Waiver Trial), 11/20/14, at 32-37, 69.

     Appellant testified in his own defense. He denied that he was in the

barbershop, although he was outside.      He confirmed that Mr. Kane had

accused him of stealing his cell phone.    However, Appellant disputed Mr.

Kane’s account of where the fight took place. Appellant stated that Mr. Kane

entered his home and started yelling at him and punching him in the face. His

friend Meranda Casillas and his two children were there. Appellant testified

that Mr. Kane wrestled him to the floor and was punching and strangling him

when a knife fell out of Mr. Kane’s pocket. Appellant retrieved the knife and

began stabbing Mr. Kane in an effort to force him out of the house. Mr. Kane

stumbled out of the door where he collapsed on the walk. Appellant followed

him outside and dropped the knife next to him.

     Police and emergency medical personnel arrived quickly.             The

responding officer, Officer Keith Stefankiewicz, testified that he knocked on

Appellant’s door and Appellant answered, “covered with blood.” Id. at 75.

The officer could not remember seeing any blood in Appellant’s home other

than on his person. Photographs showed a bloodstain on the walkway leading

to the steps in front of Appellant’s home, and no blood on the steps. Id. at

74-75, 79, 117.




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       At trial, Appellant maintained that he acted in self-defense.1 However,

the trial court credited the victim’s testimony and the photographs showing

the bloodstains on the walk below the steps and concluded, “this incident did

occur on the steps” rather than inside defendant’s home.             Id. at 122.

Accordingly, the Court found defendant guilty of attempted murder,

aggravated assault, possession of an instrument of crime, simple assault, and

recklessly endangering another person, and sentenced him to an aggregate

term of nine to eighteen years of incarceration followed by four years of

probation.

       Appellant did not file a direct appeal. On August 19, 2015, he filed a

timely pro se PCRA petition alleging that trial counsel was ineffective for failing

to seek a postponement to call Meranda Casillas, a crucial eyewitness, as a

defense witness. At the time of trial, Ms. Casillas was in the hospital in labor.

Appellant filed a supplemental amended pro se petition, to which he appended

the statement Ms. Casillas gave to police immediately after the altercation.2
____________________________________________


1 Appellant does not offer any rationale as to why it was legally significant that
the victim entered Appellant’s home and initiated the fight, rather than the
altercation occurring on the front steps. We assume that Appellant was relying
upon the castle doctrine, a specialized component of self-defense, which
recognizes that a person has no duty to retreat from his or her home before
using deadly force as a means of self-defense. See Commonwealth v.
Childs, 142 A.3d 823, 824 (Pa. 2016).

2 In her statement to police, Ms. Casillas told police that “[t]he dude [that]
got stabbed walked into the house and said I don’t have time for this shit and
where is my phone.”         Investigation Interview Record, 9/14/13, at 1.
According to Ms. Casillas, Mr. Kane pushed Appellant against the wall and they



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The court appointed counsel, and counsel filed an amended petition on

February 8, 2017. Appellant pled therein that Ms. Casillas told police that Mr.

Kane confronted Appellant in Appellant’s home, initiated the fight, and

generally corroborated Appellant’s account. Amended Petition, 2/8/17, at ¶6.

He attached her certification confirming that she did not testify at the

November 20, 2017 trial because she was in labor, but that she had intended

to testify on Appellant’s behalf. Appellant alleged that counsel was ineffective

as he knew that Ms. Casillas was instrumental to his defense and unable to

appear, but did not seek a continuance or a bifurcation to permit her to testify.

Id.

       The court ordered an evidentiary hearing, which took place on December

4, 2017.3     Ms. Casillas testified that she was with Appellant and his two

children at his 1537 Hunting Park Avenue residence on the date of the


____________________________________________


started fighting. Id. There was blood on the clothes of both men.              Id.
However, Ms. Casillas stated that she did not see the stabbing. Id.

3 After counsel for the Commonwealth introduced himself, he reminded the
court “as a brief aside,” that the court “had stated that at this hearing [it] only
wanted to hear from the potential witness, you didn’t want to hear from trial
counsel, and that’s why the Commonwealth didn’t produce trial counsel
today.” N.T. Hearing, 12/4/17, at 2-3. The record does not disclose the PCRA
court’s reason for limiting the hearing. We note that, in order to prevail,
Appellant was required to prove that trial counsel had no reasonable strategic
basis for his inaction, and that the court’s restriction may have impeded
Appellant in satisfying that prong of the ineffectiveness test.                See
Commonwealth v. Jones, 596 A.2d 885, 888 (Pa.Super. 1991) (holding it
is the appellant who has he burden to call trial counsel to testify at a PCRA
hearing). However, there is no indication that Appellant objected to the
procedure utilized by the PCRA court.

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altercation. She stated, “[t]his guy came into the house and hit Edgar and

then they started fighting.”       Id. at 4.      She testified that the intruder was

yelling, “I don’t got time for this, where’s my phone?” Id. at 6. She turned

her attention to the children, and she did not actually see what occurred

between the two men.          Id. at 12.       When she next had an opportunity to

observe, “they were fighting in between the doorway and on the step.” Id.

She saw blood on Appellant and the intruder. Id. at 13. Appellant returned

to the house to check on the children and then went back outside where the

police handcuffed him. Id. Ms. Casillas testified that she was willing to come

to court to testify about what happened, but she went into labor. Trial counsel

called her at the hospital while she was delivering her daughter. Id. at 9.

       Following the hearing, the Commonwealth moved to dismiss Appellant’s

PCRA petition, contending that Ms. Casillas’s testimony was contradicted by

photographic evidence and would have had no impact on the verdict. Hence,

it argued, trial counsel was not ineffective for failing to request a continuance

or to seek bifurcation to allow her to testify.

       The PCRA court found Ms. Casillas’s testimony “not credible” and

further, that her statements contradicted Appellant’s testimony at trial.4 PCRA

Court Opinion, 7/17/18, at 5. The court also concluded that Appellant failed
____________________________________________


4 After a review of the notes of testimony from the waiver trial and the PCRA
hearing, as well as Ms. Casillas’s statement to police, we disagree with the
PCRA court’s conclusion that her version of the events “contradicts”
Appellant’s account and would not have supported Appellant’s claim of self-
defense. Nonetheless, the PCRA court found her testimony “not credible,” and
we are bound by credibility determinations supported by the record.

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to show arguable merit or prejudice as Ms. Casillas’s testimony did not support

Appellant’s version of the events and would not have supported his self-

defense theory. Id. at 5 (citing Commonwealth v. Matias, 63 A.3d 807

(Pa.Super. 2013)). PCRA relief was denied. Order, 12/4/17. Appellant timely

appealed, new counsel was appointed after PCRA counsel was permitted to

withdraw, and Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant presents one issue for our review: Did defense counsel Amato

T. Santo, Esquire, provide ineffective assistance of counsel by failing to call a

crucial eyewitness Meranda Casillas as a defense witness?” Appellant’s brief

at 3 (unnecessary capitalization omitted).

      Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Lane, 81 A.3d 974, 977 (Pa.Super. 2013).         “The PCRA court’s credibility

determinations, when supported by the record, are binding on this Court;

however, we apply a de novo standard of review to the PCRA court’s legal

conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014).

      In order to prevail on a claim that trial counsel was ineffective, a

petitioner “must show, by a preponderance of the evidence, ineffective

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.” Commonwealth v. Turetsky,


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925 A.2d 876, 880 (Pa.Super. 2007) (citation omitted).        As we recently

reiterated in Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44

(Pa.Super. 2019), in order to prove ineffectiveness, the petitioner has the

burden of establishing all three of the following prongs: “(1) the underlying

claim is of arguable merit; (2) that counsel had no reasonable strategic basis

for his or her action or inaction; and (3) but for the errors and omissions of

counsel, there is a reasonable probability that the outcome of the proceedings

would have been different.”    Id.   “A failure to satisfy any prong of the

ineffectiveness test requires rejection of the claim of ineffectiveness.”

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).

      A claim has arguable merit when the factual averments, if true, would

entitle the petitioner to relief. See Commonwealth v. Jones, 876 A.2d 380,

385 (Pa. 2005). This is a legal question. The test for determining whether

counsel had a reasonable basis for his action is an objective one: whether no

competent counsel would have chosen that course or, the alternative not

chosen offered a significantly great likelihood of success. Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa.Super. 2013). In order to establish prejudice,

a petitioner must demonstrate a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different.       Id.   “A

reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. If a petitioner fails to satisfy the prejudice prong, “the

claim may be dismissed on that basis alone and the court need not first


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determine     whether     the    first   and   second   prongs   have   been    met.”

Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007).

       Appellant contends that Ms. Casillas was a crucial witness because she

saw Mr. Kane enter the house without permission and attack Appellant

therein. Her corroboration of Appellant’s testimony in this regard was critical

to his defense of self-defense.5 Appellant alleges that trial counsel had no

reasonable basis for his failure to call her as a witness, and that he should

have obtained a continuance to permit her to offer testimony.                  Finally,

____________________________________________


5  The castle doctrine creates an evidentiary presumption relevant to the
evaluation of a claim of self-defense. Commonwealth v. Childs, 142 A.3d
823, 824 n.1 (Pa. 2016) (citations omitted). The doctrine applies under
circumstances enumerated in 18 Pa.C.S. § 505(b)(2.1), which provides:

       Except as otherwise provided in paragraph (2.2), an actor is
       presumed to have a reasonable belief that deadly force is
       immediately necessary to protect himself against death, serious
       bodily injury, kidnapping or sexual intercourse compelled by force
       or threat if both of the following conditions exist:

              (i)       The person against whom the force is used is in the
                        process of unlawfully and forcefully entering, or
                        has unlawfully and forcefully entered and is present
                        within, a dwelling, residence or occupied vehicle;
                        or the person against whom the force is used is or
                        is attempting to unlawfully and forcefully remove
                        another against that other's will from the dwelling,
                        residence or occupied vehicle.

              (ii)      The actor knows or has reason to believe that the
                        unlawful and forceful entry or act is occurring or
                        has occurred.

18 Pa.C.S. § 505(b)(2.1) (as amended by Act 2011-10, on June 28, 2011).



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Appellant maintains that there is a reasonable probability that the outcome

would have been different but for counsel’s ineffectiveness in this regard.

        The Commonwealth counters that Appellant “was unable to establish

prejudice.”    Commonwealth’s brief at 7.        It directs us to the PCRA court’s

finding that Ms. Casillas was not credible and that her story and Appellant’s

“did not match.”      N.T. Hearing, 12/4/17, at 33-34; see also PCRA Court

Opinion, 7/17/18, at 4 (citing N.T. Hearing, 12/4/17, at 32) (“I do not find the

information provided today to be credible, nor do I find that it would have

made a difference to the fact finder at trial.”).6

        We note that Ms. Casillas’s testimony corroborated Appellant’s account

that Mr. Kane entered Appellant’s home and was the aggressor in the fight

that ensued.       In these critical respects, her testimony was relevant to

Appellant’s claim of self-defense, and specifically, the applicability of the castle

doctrine.     However, the PCRA court did not find the witness credible, and

concluded that Ms. Casillas’s testimony would not have made a difference

during the bench trial. As the ultimate arbiter of fact at trial, the court believed

Mr. Kane’s account that the entire altercation occurred outside Appellant’s

home. The court found photographs depicting bloodstains on the walk leading

to the steps, and the absence of evidence of bloodstains on the steps or in

Appellant’s home, to be persuasive in arriving at that conclusion.



____________________________________________


6   The PCRA court was the factfinder at the waiver trial.

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     After a thorough review of the record, we find support for the credibility

determination of the PCRA court. Hence, we may not disturb it. See Mitchell,

supra. Since Appellant could not prove prejudice, no relief is due.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/19




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