Com. v. Caraballo, R. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RAUL CARABALLO :
:
Appellant : No. 1694 EDA 2020
Appeal from the PCRA Order Entered August 10, 2020
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002316-2016
BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED OCTOBER 5, 2022
Raul Caraballo (“Caraballo”) appeals pro se from the order dismissing
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 We
affirm.
This case arises from a December 2015 incident in which Joshua Flores
(“Flores”) was standing outside his house near his parked car, and Caraballo
drove by and nearly struck the car. Flores slapped the back of Caraballo’s car
in anger. Caraballo stopped his car, got out, and shot Flores in the knee. A
jury convicted Caraballo of aggravated assault, and one count of recklessly
endangering another person, and the trial court imposed a term of nine to
twenty years of imprisonment. See Commonwealth v. Caraballo, 2019 WL
1417864 at *1-3 (Pa. Super. 2019) (unpublished memorandum).
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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On direct appeal, through new counsel, Albert Nelthropp, Esquire
(“Nelthropp”), Caraballo asserted that the trial court abused its discretion by
not permitting him to dismiss his trial counsel, David A. Nicholls, Esquire
(“Nicholls”), and proceed pro se. Caraballo alleged that Nicholls repeatedly
sought to withdraw from representation and the trial court had been compelled
to intercede and even participate in questioning witnesses. Caraballo further
alleged that Nicholls cursed at him and that they had an “irreconcilable
relationship” that warranted permission to proceed pro se. See id. at *2. We
determined that the trial court did not abuse its discretion in denying
Caraballo’s request to proceed pro se because he had not timely requested
permission to proceed pro se, and because he acted disruptively at trial. We
additionally noted that the trial court had permitted Caraballo to conduct his
own inquiries of witnesses and encouraged Nicholls to consult with Caraballo
about questions to ask witnesses. Furthermore, in at least one instance
Caraballo’s proposed inquiries actually detracted from the defense. See id.
at *2-3 and n.2.
Caraballo filed a timely PCRA petition pro se, and the PCRA court
appointed PCRA counsel, Sean Thomas Poll, Esquire (“Poll”), to represent him.
Caraballo became dissatisfied with Poll and filed a request to remove him
along with a complaint to the Disciplinary Board. Poll filed a petition to
withdraw, which the PCRA court granted. The PCRA court appointed a new
PCRA attorney, Alfred Stirba, IV, Esquire (“Stirba”). Stirba subsequently filed
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a Finley2 no-merit letter and a request to withdraw as counsel. The PCRA
court issued a notice pursuant to Pa.R.Crim.P. 907 of its intention to dismiss
Caraballo’s petition. Caraballo responded pro se to Stirba’s Finley letter,
asserting that Stirba was ineffective for filing a Finley letter and not alleging,
among other claims, that Caraballo’s “actual conflict” with Nicholls deprived
him of a fair trial. See Motion in Response to Finley letter, 6/23/20, at 22-
40 (unnumbered). The PCRA court dismissed Caraballo’s PCRA petition and
granted Stirba’s petition to withdraw. Caraballo filed a timely notice of appeal,
and both he and the trial court complied with Pa.R.A.P. 1925.
We summarize the issues in Caraballo’s pro se brief as follows: (1)
whether irreconcilable differences between Caraballo and Nicholls existed and
actually or constructively denied Caraballo’s right to counsel at trial; and (2)
whether Stirba was ineffective, on PCRA, for failing to develop Caraballo’s
issue that he was actually or constructively denied the right to counsel. See
Caraballo’s Brief at 3. Additionally, Caraballo’s statement of questions also
raises another issue which he states as follows:
Did this Court err in not correcting the record, when this Court
was made fully aware of the fact prior to petitioner[’s] jury trial,
[that] petitioner sent a very detailed letter to this Court about
various conflicts, and letter to the P.A. [sic] disciplinary board on
counsel.
Caraballo’s Brief at 3 (unnecessary capitalization omitted).
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2 See Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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In his first two issues, Caraballo asserts that the PCRA court erred in
dismissing his petition because Stirba, his most recent PCRA counsel, was
ineffective for failing to develop a claim that trial counsel, Nicholls, operated
under an actual conflict of interest that actually or constructively denied him
his right to counsel. This Court’s standard for reviewing the dismissal of PCRA
relief is well-settled:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the record in the light most favorable to the
prevailing party in the PCRA court. We are bound by any
credibility determinations made by the PCRA court where they are
supported by the record. However, we review the PCRA court’s
legal conclusions de novo.
Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (citations and
quotations omitted). A claim for PCRA review is waived if petitioner could
have raised it but failed to do so before trial, at trial, during unitary review,
on appeal or in a prior state postconviction proceeding. 42 Pa.C.S.A.
§ 9544(b).
Generally, a claim of ineffective assistance of counsel requires a
petitioner to establish that: (1) the underlying issue has arguable merit, (2)
counsel’s actions or inactions lacked a reasonable basis; and (3) counsel’s
actions or inactions resulted in actual prejudice. See Commonwealth v.
Chmiel, 30 A.3d 1111, 1127 (Pa. 2011). A layered ineffectiveness claim
requires a PCRA petitioner to properly establish each prong of the three-prong
ineffectiveness test for each separate attorney. See id. The critical inquiry
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in assessing a layered claim of ineffectiveness is whether the earliest attorney
whose ineffectiveness is being asserted was, in fact, ineffective. If there is no
merit to the claim of the earliest counsel’s ineffectiveness, then all subsequent
counsel cannot be held ineffective for failing to raise and preserve a meritless
claim. See id. at 1128.
Under certain, narrow circumstances a petitioner may claim that
counsel’s ineffectiveness was so manifest that he need not prove the three-
pronged ineffective assistance test. He may do so by showing that there are
circumstances “that are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified.” Commonwealth v.
Reaves, 923 A.2d 1119, 1128 (Pa. 2007) (quoting U.S. v. Cronic, 466 U.S.
at 648, 658 (1984)).
At the outset, we note that the PCRA court dismissed Caraballo’s issue
because Caraballo did not raise it in his pro se PCRA petition and conceded in
his Rule 1925(b) statement that he had not preserved his “actual conflict”
claim. See PCRA Court Opinion, 2/25/21, at 13-15. The PCRA court did not
consider the merits of Caraballo’s actual conflict claim, but found that there
were no irreconcilable differences between Caraballo and trial counsel. See
id. at 15-18.
We respectfully disagree with the PCRA court’s finding that Caraballo
waived his actual conflict claim. Although Caraballo did not raise that claim in
his pro se PCRA petition, he filed a pro se response to PCRA counsel’s Finley
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letter in which he asserted that he identified the actual conflict claim and
asserted that PCRA counsel failed to develop or address the issue. This Court
may therefore review Caraballo’s claim within the framework of a layered
claim that PCRA counsel was ineffective. See Commonwealth v. Bradley,
261 A.3d 381, 405 (Pa. 2021) (holding that PCRA petitioners may have
appellate review of claims of the ineffectiveness of PCRA counsel even when
first raised on appeal).3
We affirm the PCRA court’s dismissal of Caraballo’s petition although on
different grounds than those the court cited.4 To support his claimed
entitlement to the application of Cronic, Caraballo asserts that: he and trial
counsel had a “complete lack of communication”; he notified the trial court of
the problem; he told trial counsel he would accept a twenty-seven-month plea
agreement offer allegedly made by the prosecution; and the PCRA counsel
should not have filed a Finley letter given the existence of this issue. See
Caraballo’s Brief at 10-11, 14-15, 19, 21, 32-37 (unnumbered). Caraballo
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3 We acknowledge that in so doing we are according Caraballo review of a
challenge to PCRA counsel’s filing of a Finley letter, a claim Caraballo failed
to include in his statement of questions presented but included in the text of
his brief. We have determined that it is in the interest of judicial economy for
us to decide that issue, and that we can do so on the existing record without
the need for a remand to the PCRA court. See Bradley, 261 A.3d at 402-03.
4We may affirm a court’s decision if there is any proper basis to support it,
even if we rely on different grounds than those on which the court relied. See
Commonwealth v. Walsh, 125 A.3d 1248, 1253 (Pa. Super. 2015).
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claims he therefore proved an “actual conflict” under Cronic, and need not
prove prejudice.
We note that on direct appeal Caraballo asserted a related claim: an
“irreconcilable relationship” with trial counsel, and that the trial court abused
its discretion by not removing trial counsel and permitting Caraballo to
represent himself. This Court rejected Caraballo’s claim, finding that he had
failed to raise it timely and that his own disruptive trial behavior supported
the denial of his request to proceed pro se. See Caraballo, 2019 WL 1417864at *1-3. The PCRA court, which was also the trial court, found Caraballo was
the actual source of his disagreements with trial counsel, and Caraballo was
motivated by a desire to sabotage his trial. See PCRA Court Opinion, 2/25/21,
15-18. The PCRA court further found that Caraballo’s and trial counsel’s
disagreements did not rise to the level of irreconcilable differences. See id.
at 18.
In this PCRA appeal, Caraballo recasts his claim as an assertion under
Cronic that an “actual conflict” with trial counsel existed that deprived him of
his right to a fair trial. A petitioner may only avail himself of Cronic where
there has been an actual or constructive denial of counsel, i.e., (1) trial
counsel entirely failed to subject the prosecution’s case to meaningful
adversarial testing, (2) the state interfered with counsel’s assistance, or (3)
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trial counsel had an actual conflict of interest. See Reaves, 923 A.2d at
1128.5
Caraballo cannot successfully raise a Cronic claim here. He places
primary reliance on his assertion that he had an “actual conflict” with trial
counsel. See Caraballo’s Brief at 14-25. Caraballo misunderstands the law.
A petitioner does not prove an “actual conflict” of interest sufficient to invoke
Cronic where he proves that he and his attorney disagreed and experienced
conflicts.6 Rather, as our Supreme Court explained in Commonwealth v.
King, 57 A.3d 607, 619 (Pa. 2012), the term “actual conflict” in Cronic cases
refers only to dual representation cases, i.e., those in which counsel
simultaneously represents more than one client. In dual representation cases,
there is a concern that an attorney may alter his trial strategy based on
considerations stemming from other loyalties that would not occur if his sole
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5 The Cronic decision itself demonstrates how rarely the standard actually
applies. The Cronic Court found that a defendant was not entitled to the
application of a per se prejudice standard even where he was represented at
his criminal trial by a real estate attorney who had never conducted a jury
trial and had only twenty-five days before trial to prepare to defend a case the
prosecution took more than four years to assemble. See Cronic, 466 U.S. at
665-66.
6 In fact, evidence that a criminal defendant had a strained relationship with
counsel, lacked faith in counsel’s abilities, and had a difference of opinion in
trial strategy is not necessarily sufficient to prove even irreconcilable
differences. See Commonwealth v. Floyd, 937 A.2d 494, 497-498 (Pa.
Super. 2007).
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loyalty were to the defendant. See id.7 Caraballo was tried alone. Trial
counsel did not engage in dual representation. Therefore, he cannot show
that trial counsel operated under an “actual conflict” of interest.
Moreover, to the extent Caraballo has even suggested that counsel
entirely failed to subject the Commonwealth’s case to meaningful adversarial
testing under Cronic (an argument he does not appear to make), that claim
also lacks merit. Trial counsel articulated a unified defense theory of the case
from opening argument forward that accounted for the evidence he knew the
prosecution possessed. Trial counsel argued that Caraballo had been present
at the scene of the shooting (as proved by the cell phone records the
prosecution planned to introduce), but that someone else had committed the
crime. See N.T., 4/11/17, at 33-34. To support that defense, trial counsel
elicited testimony that: one witness told a police officer at the scene that a
person other than Caraballo committed the shooting, the victim could not
identify Caraballo as the shooter, and a trial witness had previously lied to
police about who committed the shooting and was still subject to outstanding
charges for lying to the police relating to her first account of the shooting,
which gave her a motive to testify falsely. See id., at 50, 65, 90, 94-104.
Thus, Caraballo cannot show his entitlement to the Cronic standard because
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7The King Court declared that it was not at liberty to expand the definition of
“actual conflict” to encompass other assertions of actual conflict. See King,
57 A.3d at 621.
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trial counsel entirely failed to subject the prosecution’s case to meaningful
appellate testing.
Nor can Caraballo prove the remaining basis under Cronic: that the
state interfered with counsel’s assistance. To the extent he asserts that the
trial court interfered with his right to counsel, he reiterates claims regarding
his alleged right to remove trial counsel because of their disagreements.
These claims are similar to the claim on direct appeal. Caraballo also asserts
that his conflict with trial counsel was so significant that he told trial counsel
that he would accept an alleged plea offer of twenty-seven months of
imprisonment rather than proceed to trial. See Caraballo’s Brief at 15, citing
Exhibit J to his brief. Caraballo did not file Exhibit J, a handwritten letter that
he attaches to his brief, in the court of common pleas. See Caraballo’s Brief,
Exhibits A-C. There is no proof that he sent Exhibit J to trial counsel or the
trial court. Exhibit J is thus not of record and does not become of record
simply by being attached to an appellate brief or a reproduced record. See
Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (en banc)
(stating than any document which is not part of the officially-certified record
is deemed “‘non-existent’ – a deficiency which cannot be remedied merely by
including copies of the missing documents in a brief or in the reproduced
record”).
Even if considered, Exhibit J would not prove that the trial court
interfered with Caraballo’s right to counsel. Caraballo asserts that the letter
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shows that he would have accepted a plea offer rather than proceed to trial.
His own trial testimony defeats that assertion. While being cross-examined
at trial, Caraballo interjected his assertion that he was “[f]acing - - 15 to 30
years I’m facing to prove my innocence when you offer me a measly 27
months . . .. And I’m not going to take 27 months . . . because this is important
to me.” See N.T., 4/12/17, at 161 (court and counsel interjections omitted).
Accordingly, Caraballo cannot show that the trial court interfered with his right
to counsel.8
In sum, because Caraballo’s Cronic claim of trial counsel’s
ineffectiveness is meritless, PCRA counsel Stirba (and direct appeal counsel
Nelthropp, whose ineffectiveness Caraballo would also have to prove to
present a properly layered ineffectiveness claim) cannot have been ineffective
for failing to preserve it. See Chmiel, 30 A.3d at 1128. Thus, Caraballo’s
first two issues merit no relief.
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8 Exhibits A-C to Caraballo’s brief, the only letters that he filed below, do not
prove the trial court’s interference with his representation. Exhibit A, a letter
Caraballo sent to the clerk of court asserts that he wants trial counsel to file
certain motions; Exhibit B, a letter Caraballo sent to trial counsel seeks to
address “a few issue and concerns that I have,” and Exhibit C, which Caraballo
sent to the trial court, requests a court conference prior to trial with the trial
court and trial counsel relating to trial counsel’s handling of the case.
However, as the PCRA court found, Caraballo did not assert at trial any
disagreement with counsel until the second day of a two-day trial, and the
assertions he raised even then did not rise to the level of irreconcilable
differences. See PCRA Court Opinion, 2/25/21, 15-18. Nothing in the record,
therefore, demonstrates Caraballo’s right to relief due to the trial court’s
interference with his right to representation under Cronic.
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Caraballo’s other appellate issue asserts that “this” Court erred in not
correcting the record pursuant to Pa.R.A.P. 1926 and 1931 when this Court
knew that prior to trial he sent a detailed letter to this Court about “various
conflicts,” and a letter to the disciplinary board.9 Caraballo failed to raise this
claim in his Rule 1925(b) statement. It is, therefore, unreviewable. See
Commonwealth v. Shreffler, 249 A.3d 575, 582 (Pa. Super. 2021).10
Order affirmed.
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9 The text of Caraballo’s argument demonstrates that “this Court” refers to
the trial court and the Lehigh County clerk of courts. See Caraballo’s Brief at
29.
10 We note that the vast majority of the documents Caraballo claims are absent
from the record are copies of handwritten letters he allegedly sent to trial
counsel and PCRA counsel that were not filed in the trial court. See Caraballo’s
Brief, Exhibit BB. The Pennsylvania Rules of Appellate Procedure provide for
correction or modification of the record where the record fails to truly disclose
what occurred in trial court, and provide means by which the parties can
stipulated to what is missing from the certified record. See Pa.R.A.P. 1926(a),
(b)(2), 1931(f). Neither of the rules Caraballo cites permits a party to
supplement the record unilaterally with not-of-record, unauthenticated
materials, and they do not become of record by being attached to Caraballo’s
appellate brief. See Preston, 904 A.2d at 6. Caraballo, accordingly, cannot
demonstrate his entitlement to have unauthenticated materials included in the
certified record of this case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/05/2022
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