Com. v. Cavallero, A.

• Court: Superior Court of Pennsylvania
• Decided: October 6, 2021
• Docket: 2200 EDA 2020
• Status: Unpublished

Opinion

J-S21042-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANGELO CAVALLERO III : : Appellant : No. 2200 EDA 2020

Appeal from the PCRA Order Entered October 20, 2020 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001919-2019

BEFORE: BOWES, J., OLSON, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED OCTOBER 06, 2021

Angelo Cavallero III appeals from the October 20, 2020 order, which

denied his first timely petition filed pursuant to the Post Conviction Relief Act

(“PCRA”) following a hearing. See 42 Pa.C.S.A. §§ 9541-9546. In his petition

and now on appeal, Cavallero singularly argues that his trial counsel was

ineffective for having not objected to certain video interviews of the victim

that were played to the jury. After a thorough review of the record, we

conclude that Cavallero has failed to demonstrate ineffective assistance and

affirm.

In summary, a fifteen-year-old victim reported to police that Cavallero

had sexually assaulted her. Resultantly, the Delaware County Children’s

Advocacy Center (CAC) interviewed the victim, which led to her describing

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 Retired Senior Judge assigned to the Superior Court. J-S21042-21

how Cavallero had touched her inappropriately. During that interview, the

victim identified that Cavallero grabbed her and rubbed her on multiple

occasions, tried to give her alcohol, and requested explicit photographs from

her. The victim also communicated that Cavallero had abused her mother,

explaining further that she was reluctant to tell the police about Cavallero’s

behavior for fear of further injury to her mother.

Approximately one year later, CAC interviewed the victim for a second

time. However, on this occasion, the victim stated that Cavallero had raped

her, which was distinct from anything mentioned in the first interview. In

addition, the victim discussed Cavallero’s consumption of pornography as well

as noting that Cavallero had a previous Protection from Abuse Act order

entered against him. See 23 Pa.C.S.A. §§ 6101-6122.

At trial, both CAC interviews were played without objection albeit with

some agreed-upon redactions. The Commonwealth presented no physical

evidence, relying instead on the credibility of the victim. Ultimately, the jury

found Cavallero guilty of rape by forcible compulsion, unlawful contact with a

minor, statutory sexual assault, sexual assault, and endangering the welfare

of a child.1 Cavallero received an aggregate sentence of seventy-two to one

hundred and forty-four months of incarceration followed by twenty-four

months of probation. Additionally, Cavallero was required to register as a Tier

III sexual offender. ____________________________________________

1 See 18 Pa.C.S.A. § 3121; 18 Pa.C.S.A. § 6318; 18 Pa.C.S.A. § 3122.1; 18

Pa.C.S.A. § 3124.1; and 18 Pa.C.S.A. § 4304, respectively.

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Cavallero did not file a direct appeal. Instead, Cavallero filed a counseled

PCRA petition, asserting that counsel was ineffective for allowing the CAC

interviews to be played for the jury. Correspondingly, the PCRA court held a

hearing on his petition.

During that hearing, trial counsel testified that he did not object to the

jury’s observance of the interviews because it was part of counsel’s trial

strategy. To discredit her testimony using her own words, trial counsel wanted

the jury to see inconsistencies in the victim’s testimony. The PCRA court then

dismissed Cavallero’s petition, finding that trial counsel was not ineffective.

Cavallero timely appealed his petition’s dismissal and presents this

Court with one issue for review: as Cavallero adequately demonstrated trial

counsel’s ineffectiveness, did the PCRA court err by dismissing his PCRA

petition? See Appellant’s Brief, at 4.

Preliminarily, we note our standard of review of an order denying PCRA

relief. “[W]e examine whether the PCRA court's determination is supported by

the record and free of legal error.” Commonwealth v. Mitchell, 141 A.3d

1277, 1283–84 (Pa. 2016) (citation and internal quotation marks omitted).

However, this examination is conducted in the light most favorable to the

prevailing party at the PCRA court level. See Commonwealth v. Mason, 130

A.3d 601, 617 (Pa. 2015). Accordingly, this Court will act only when a PCRA

court’s findings lack any kind of support in the certified record. See

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014).

When PCRA relief is sought under the auspice of ineffective assistance

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of counsel, a petitioner must prove, by a preponderance of the evidence, that

his conviction or sentence resulted from 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 cogently provided the sole successful pathway to successfully establish

ineffective assistance of counsel:

To prevail in a claim of ineffective assistance of counsel, a petitioner must overcome the presumption that counsel is effective by establishing all of the following three elements, as set forth in Commonwealth v. Pierce, … 527 A.2d 973, 975-76 (1987): (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice because of counsel's ineffectiveness.

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (parallel citation

omitted). As to prejudice specifically, a petitioner must demonstrate that there

is a reasonable probability that but for counsel’s error or errors, the result of

the proceeding would have somehow been different. See Commonwealth v.

Reed, 42 A.3d 314, 319 (Pa. Super. 2012).

All three Pierce prongs must be met in order to succeed; failing to meet

even one of the prongs dooms the entire claim. See Commonwealth v.

Williams, 863 A.2d 505, 513 (Pa. 2004). Although implicitly identified above,

we note that the burden of proof is exclusively on the petitioner at every point

in this challenge. See Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa.

2007).

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Cavallero avers that had trial counsel contemporaneously objected to

the Commonwealth moving for permission to play the CAC interviews, the trial

court would have sustained that objection. See Appellant’s Brief, at 10.

Instead, “prejudicial and damaging evidence was heard during the course of

the [t]rial.” Id. In support, Cavallero highlights the admissions from trial

counsel, obtained during the PCRA hearing, that the interviews contained: (1)

statements implicating Cavallero in what was remembered to be multiple

Protection from Abuse Act orders; (2) references to Cavallero’s abusive

behavior against the victim’s mother; (3) a mentioning of Cavallero supplying

alcohol to the victim and other minors; (4) a noting of Cavallero’s abnormal

tendencies, such as standing over the victim’s mother and staring at her while

she was apparently sleeping; (5) a remark identifying Cavallero’s infidelity

with other women at the expense of the victim’s mother; and (6) an indication

that Cavallero consumed pornography. See id., at 10-13. Cavallero also

illuminates that his trial counsel declined any curative instruction connected

to the interviews when apparently offered one by the trial court. See id., at

13-14.

In his analysis of the Pierce factors, Cavallero states that all parties

agree that the first prong is met: that his claim is of arguable merit. See, e.g.,

Trial Court Opinion, 2/22/21, at 4. As to the second prong, Cavallero contends

that counsel had no reasonable basis to not object. See Appellant’s Brief, at

16 (identifying that had there been an objection, the CAC video would not

have been played to the jury. Moreover, Cavallero emphasizes the dialogue

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between the trial court and Commonwealth at sidebar regarding the damaging

nature of the videos). Cavallero concludes this prong by stating that “said

damaging evidence far outweighed any benefit from showing inconsistencies

as to the victim’s prior testimony.” Id., at 17 (conceding that “[t]his is a

matter resting almost exclusively as to the issue of credibility[]”). On the third

element, Cavallero simply argues that trial counsel’s inaction prejudiced

Cavallero’s case “to the extent that the outcome of the proceeding would have

been different had [t]rial [c]ounsel opted to exclude said evidence.” Id.

As to what constitutes “reasonable basis” in trial counsel’s action or

inaction, the PCRA court “does not question whether there were more logical

courses of action which counsel could have pursued; rather, the court must

examine whether counsel’s decisions had any reasonable basis.” Mason, 130

A.3d at 618 (internal brackets and citation omitted) (emphasis added).

Additionally, the fact that a strategy ultimately proves to be unsuccessful does

not make it unreasonable. Commonwealth v. Spotz, 896 A.2d 1191, 1235

(Pa. 2006).

As Cavallero, himself, acknowledges, this case was “almost exclusively”

decided based on credibility. Trial counsel determined the best course of action

would be to let the jury hear both interviews and, when taken in tandem with

the victim’s testimony at trial, observe for itself any kind of inconsistent

statements. Trial counsel’s strategy is readily apparent in his closing

argument:

I didn’t have to let you see any of [the interviews], but I wanted

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you to see that. And you would think, why would those wild accusations against … Cavallero, why would I want the jury to see those? And that’s because as you saw through the different stories, the different testimony, the different dates, the story changes, expands, shrinks, and honestly, matures along with [the victim]. She changes the story.

Trial Transcript, 8/15/19, at 5-6. Trial counsel continued: “The reason why I

wanted [you] to see that video beyond the fact that she’s making wild

accusations at this point throughout the investigation three years. Accusations

have changed, shift[ed].” Id., at 8.

An evaluation of trial counsel’s closing argument yields a finding that he

attempted to accentuate every single dissimilarity between the victim’s

statements, spanning multiple years, or points to an attack on her credibility,

supported namely from content derived from the interviews. For example, trial

counsel stressed the fact that at the victim’s first interview, she made claims

that could have led to Cavallero’s criminal prosecution. However, Children and

Youth Services found no merit to her assertions, and no law enforcement

action was taken at that time. See id., at 7-8. In addition, trial counsel noted

the calm demeanor the victim had throughout the first interview, which was

in sharp contrast to her state at trial. The victim’s second interview focused,

in part, on Cavallero having raped her, which was not indicated in the first

interview. However, other bad acts she insisted Cavallero committed were

omitted from this subsequent interview. From all of this, trial counsel believed

his best strategy was to shine a light on the victim’s inherent inconsistencies

and ambiguities to discredit her underlying allegations.

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We further note that trial counsel did, in fact, request the redaction of

specific portions of the interview, and the Commonwealth coalesced around

this demand. See PCRA Hearing, 10/14/20, at 17-18.

A defendant is not entitled to have exclusively neutral or positive

information be entered into the record or observed by the jury. Despite the

unfavorable portions of the interviews, there was a rational basis for trial

counsel to desire these videos to be of record and viewed. Trial counsel saw

this evidence as the best refutation of the crimes in which his client was

charged, and we see no strong basis to contradict his determination. The fact

that trial counsel was ultimately unsuccessful is of no moment so long as it

was reasonable for counsel to act in this manner. Given his clear explanation

both at trial and in the subsequent PCRA hearing, we cannot say that it was

unreasonable for him to pursue this pathway by not objecting to the

introduction of the interviews. Accordingly, the second Pierce prong fails.

While not necessary to discuss given the failure of another prong,

Cavallero has also failed to demonstrate prejudice. Cavallero dedicates one

sentence of his brief to a bald assertion that the outcome of the proceeding

would have been different had there been an objection and subsequent

exclusion of the video interviews. Therefore, given this insufficiency, his claim

that he has suffered prejudice necessarily fails. See Paddy, 15 A.3d at 443

(identifying that “boilerplate allegations and bald assertions of … ensuing

prejudice cannot satisfy a petitioner's burden to prove that counsel was

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ineffective[]”).

As we have determined that Cavallero has failed to demonstrate that his

counsel was ineffective, we are constrained to affirm the PCRA court’s order.

Order denying PCRA relief affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/6/2021

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