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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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