Com. v. Cabassa, L.

• Court: Superior Court of Pennsylvania
• Decided: November 13, 2024
• Docket: 2603 EDA 2023
• Status: Unpublished

Opinion

J-S31035-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LUCAS JOSEPH CABASSA : : Appellant : No. 2603 EDA 2023

Appeal from the PCRA Order Entered September 8, 2023 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0002799-2013

BEFORE: BOWES, J., McLAUGHLIN, J., and BECK, J.

MEMORANDUM BY BECK, J.: FILED NOVEMBER 13, 2024

Lucas Joseph Cabassa (“Cabassa”) appeals from the order entered by

the Northampton County Court of Common Pleas denying his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 In the instant appeal,

Cabassa contends that his trial counsel was ineffective for failing to raise the

Stewart defense at trial.2 Because we find no error in the PCRA court’s

findings, we affirm the order denying Cabassa’s PCRA petition.

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1 42 Pa.C.S. §§ 9541-9546.

2 In Commonwealth v. Stewart, 394 A.2d 968, 971 (Pa. 1978), our Supreme Court allowed the introduction of evidence of prior acts of the victim or of a group the victim is a member to be used to confirm a defendant’s knowledge of the violent character of the group or victim to establish that the defendant had reasonable belief of his life being in danger. J-S31035-24

On June 1, 2013, Cabassa, then seventeen years old, and three of his

friends, Jonathan “Big John” Martinez, Zach Oritz, and Edwin “Boobie”

Rodriquez, spent the day together drinking, smoking marijuana, taking Xanax

pills, playing video games, swimming in the Saucon Creek, and playing

basketball. During the day, Cabassa also showed his friends a .22 caliber

revolver he had obtained. At approximately 2:30 a.m. on June 2, 2013, the

group gathered around an electric junction box on Argus Circle in Bethlehem,

Pennsylvania, where Jose Reyes (“Reyes”) joined them.

Cabassa and his friends started to make fun of Reyes, and Reyes started

to leave for his grandparents’ house. “Big John” called him back to the group

and, when Reyes returned, “Boobie” punched Reyes. “Big John” then punched

Reyes, knocking him to the ground, and started kicking him. Cabassa initially

offered Reyes a hand to stand up, but instead punched Reyes. Reyes’

grandparents came outside, and Cabassa and his friends ran away.

Reyes smoked a cigarette outside, during which Joseph Rodriguez

(“Rodriguez”) and some other men approached, and he explained to them

what had just transpired. As Rodriguez and the other men were leaving, they

ran into Cabassa and his friends. Rodriguez confronted “Big John,” and then

hit him despite the fact Big John was much larger than him. While “Big John”

was fighting with Rodriguez, Reyes started fighting with “Boobie.” After “Big

John” hit Rodriguez a few times, Cabassa fired a single shot at Rodriguez,

striking him in the right temple. Cabassa and his friends then fled.

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Police arrived shortly after the shooting, finding Rodriguez still alive,

face down in the grass. Shortly thereafter, Rodriguez died in the hospital.

Police eventually arrested Cabassa.

The case proceeded to a jury trial, at which Cabassa claimed self-

defense and defense of others based upon his belief that Rodriguez and the

men he was with were members of the Latin Kings, a violent street gang.

Ultimately, the jury found Cabassa guilty of first-degree murder and

possession of a firearm by a minor. Separately, Cabassa pled guilty to one

count of persons not to possess a firearm. The trial court sentenced him to an

aggregate term of fifty-one years to life in prison.

Cabassa appealed his judgment of sentence, and this Court affirmed in

part and vacated in part. See Commonwealth v. Cabassa, 739 EDA 2015,

2016 WL 1408224 (Pa. Super. Apr. 11, 2016) (non-precedential decision),

appeal denied, 145 A.3d 723 (Pa. 2016). Specifically, this Court found the

trial court imposed an illegal sentence on the persons not to possess firearms

charge and remanded for resentencing. On December 2, 2016, the trial court

resentenced Cabassa to an aggregate term of forty-eight years to life in

prison. Cabassa did not file a post-sentence motion or appeal after

resentencing.

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On January 4, 2018, Cabassa filed a timely pro se PCRA petition.3 The

PCRA court appointed Cabassa counsel, who filed a supplemental PCRA

petition, raising multiple claims of ineffective assistance of counsel and

violations of his due process rights. The Covid-19 pandemic delayed the

scheduling of an evidentiary hearing on the petition, which was ultimately held

on February 8, 2022. At the hearing, both Cabassa and his trial counsel,

Attorney Steven Mills, testified.

The PCRA court denied Cabassa’s request for relief and this timely

appeal followed. Cabassa raises the following question for our review:

“Whether trial counsel was ineffective for failing to present the claim that

Cabassa was a scared juvenile confronted with a violent gang of adults at the

time of the shooting?” Cabassa’s Brief at 7.

“This Court’s standard of review regarding a PCRA court’s denial of a

PCRA petition is whether the PCRA court’s decision is supported by the

evidence of record and is free of legal error.” Commonwealth v. Felix, 303

A.3d 816, 819 (Pa. Super. 2023). “An appellate court cannot substitute its

judgment for that of the finder of fact.” Commonwealth v. Collins, 70 A.3d

1245, 1251 (Pa. Super. 2013). “With respect to the PCRA court’s legal

3 Cabassa mailed his PCRA petition on December 29, 2017, rendering it timely.

See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (noting that under the “prisoner mailbox rule,” a document is deemed filed on the date an inmate deposits the mailing with prisoner authorities or places it in the prison mailbox).

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conclusions, we apply a de novo standard of review.” Commonwealth v.

Lopez, 249 A.3d 993, 998 (Pa. 2021) (citation omitted).

To establish a claim for ineffective assistance of counsel, a PCRA

petitioner must plead and prove, by a preponderance of evidence, that

(1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice as a result of counsel’s action or inaction. Counsel is presumed to be effective, and the burden is on the appellant to prove otherwise. A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim.

Felix, 303 A.3d at 819 (citations and quotation marks omitted). “The failure

to satisfy any one of the ineffectiveness prongs precludes relief.”

Commonwealth v. Drayton, 313 A.3d 954, 960 (Pa. 2024) (citation

omitted).

Cabassa argues that Attorney Mills was ineffective for failing to present

the Stewart defense, as he contends the evidence would have supported a

finding that Cabassa was a scared juvenile confronted with a violent gang of

adults at the time of the shooting. Cabassa’s Brief at 7, 8-10, 12. Cabassa

baldly asserts that his underlying claim has arguable merit, contending that

the PCRA court failed to consider the totality of the evidence as required. Id.

at 7, 8. He maintains that Attorney Mills did not have a reasonable basis to

present the Stewart defense, as Attorney Mills testified to being familiar with

the Stewart case at the evidentiary hearing; because Cabassa was justifiably

afraid of the Latin Kings, he thus reasonably feared for his life and that of his

friend, Big John. Id. at 8-9, 12. He further contends that Attorney Mills’

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failure to raise the Stewart defense subjected Cabassa to prejudice as the

evidence, contending that the defense would have established his and Big

John’s lives were in danger. Id. at 9-12.4

We have reviewed Cabassa’s arguments and conclude that he fails to

establish that his underlying claim has arguable merit. Although Cabassa

states that the PCRA court did not reweigh or consider the totality of the

evidence, he fails to provide any analysis regarding the applicability of the

Stewart defense claim. See Pa.R.A.P. 2119(a) (noting that argument must

contain “such discussion and citation of authorities as are deemed pertinent”).

Most notably, Cabassa does not address this Court’s previous ruling that

Cabassa was not entitled to a self-defense or defense of others claim:

Cabassa was a minor in possession of a firearm, meaning Cabassa was in possession of an illegal firearm, and Rodriquez never displayed or otherwise used a firearm or any other purportedly lethal weapon. Because Cabassa was not allowed to defend himself with an illegal firearm, nor use lethal force against a person who did not visibly possess a lethal weapon, it appears he was not entitled to so defend “Big John.”

Cabassa, 2016 WL 1408224 at fn. 9.

4 We note that Cabassa raises different ineffectiveness claims in his reply brief.

Specifically, he argues that Attorney Mills failed to argue that the victim’s text messages should be admitted at trial, object to jury instructions, and investigate and call witnesses. See Cabassa’s Reply Brief at 8, 11, 12. It is well settled that “[a] claim is waived if it is raised for the first time in a reply brief.” Commonwealth v. Collins, 957 A.2d 237, 259 (Pa. 2008) (citation omitted).

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Moreover, Attorney Mills testified that he did, in fact, attempt to

introduce evidence regarding the violent nature of Rodriguez and the men he

was with through text messages, and even went so far as to try and find the

person who received the text messages with a private investigator. N.T.,

2/8/2022, at 11, 12. The trial court, however, precluded the admission of this

evidence, and this Court affirmed the decision to exclude this evidence on

appeal. Id. at 11, 28. The law is clear that an attorney cannot be deemed to

have provided ineffective assistance under these circumstances.

Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa. 1994) (stating that a

trial judge refusing to admit evidence does not create an ineffective assistance

claim if attempting to introduce the evidence seems to be a reasonable

strategic choice based on the circumstances).

Cabassa also fails to establish that Attorney Mills did not have a

reasonable basis for not raising a Stewart defense. The record reflects

Attorney Mills testified that he did not believe it would be wise to present

evidence regarding violent gangs at trial because Cabassa testified at trial that

he was a member of the Bloods, a separate gang. N.T., 2/8/2022, at 30, 31.

Cabassa also testified that both the Latin Kings and the Bloods have a

reputation for violence. Id. at 48, 49. Plainly, Attorney Mills made a strategic

choice in attempting to prevent the introduction of Cabassa’s own violent

history at the expense of the history of the Latin Kings. We cannot conclude

that Attorney Mills’ choice was unreasonable. Commonwealth v. Johnson,

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289 A.3d 959, 979 (Pa. 2023) (citations and quotations omitted) (holding that

a claim of ineffectiveness will not succeed in comparing alternative trial

strategies).

Finally, Cabassa does not establish prejudice. As noted above, Cabassa

fails to show that he was entitled to present a justification defense. See

Cabassa, 2016 WL 1408224 at *3, n.9. Cabassa restates that his knowledge

of the Latin Kings’ violent nature should have allowed him to raise a Stewart

defense, without demonstrating there is a reasonable probability that the

outcome would have been different had the evidence been presented at trial.

See Commonwealth v. Reid, 259 A.3d 395, 405 (Pa. 2021) (stating that a

showing of prejudice must demonstrate that there is “a reasonable probability

that for counsel’s act or omission, the outcome of the proceeding would have

been different.”) (citations and quotation marks omitted). Therefore, we

conclude that Attorney Mills was not ineffective for failing to raise the Stewart

defense.

Cabassa also states that Attorney Mills was ineffective for failing to

introduce the victim’s conviction for resisting arrest, a crime of violence, to

show that Cabassa had reasonable fear of danger. Cabassa’s Brief at 12.

Cabassa fails to address the three prongs of the ineffectiveness test in relation

to this claim; therefore, his claim fails. See Commonwealth v. Spotz, 18

A.3d 244, 282 (Pa. 2011) (concluding that where the appellant fails “to set

forth all three prongs of the ineffectiveness test and [to] meaningfully discuss

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them, he is not entitled to relief, and we are constrained to find such claims

waived for lack of development”) (citation omitted).

Accordingly, the PCRA court did not err in denying his petition.

Order affirmed.

Date: 11/13/2024

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