J-S45028-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRON SOMBERGER
Appellant No. 1895 EDA 2013
Appeal from the PCRA Order of June 21, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0902281-2005
BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*
MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 30, 2014
Tyron Somberger appeals the June 21, 2013 order denying his first
counseled petition for relief pursuant to the Post-Conviction Relief Act
-46, without a hearing. We affirm.
On December 10, 2007, following a jury trial, Somberger was
convicted of two counts of attempted murder, four counts of aggravated
assault, one count of carrying a concealed firearm without a license, and one
count of possession of an instrument of crime.1 The PCRA court summarized
On April 9, 2005, [Somberger] and others fought with another
group of boys inside the Wow skating rink. As a result, all [of]
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 901 (2501), 2702, 6106, and 907, respectively.
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the individuals suspected of participating in the fight were
ejected from the premises. The two groups continued their
argument outside[,] at which time the boy with whom
[Somberger] was arguing called out for someone to get his gun.
At that point, [Somberger] left Wow in a dark-colored car
threatening to return to the scene. [Somberger] returned
approximately an hour later and opened fire on the group of
teenagers waiting for a bus outside the Wow skating rink.
[Somberger] wounded thirteen-year-old [T.G.] and fifteen-year-
old [R.H.].3
3
Neither one of the boys who were shot ([R.H.] and
[T.G.]) were part of the fight in the Wow skating rink.
When police arrived after the shooting, they took [T.G.] to the
hospital. A Septa transit police officer took [R.H.] to the
hospital. Detective Thomas Lauf testified that he found shell
casings outside the K&G clothing store near the bus stop.
[R.H.] told police that he saw two cars parked in the K&G lot just
before the shooting. [R.H.] identified [Somberger] as the person
who shot him. [R.H.] also saw [Somberger] and others get into
those vehicles and drive away after the shooting. One vehicle
was a dark-colored Chevrolet Caprice. The other vehicle was a
white Pontiac Bonneville.
Officers subsequently arrested Stephen Baxley for his
involvement in the crime. Upon his arrest, Baxley gave a
statement to Detective [Vincent] Guarna. Baxley told Guarna
that [Somberger] directed Baxley to drive him back to the Wow
rink after the fight. Baxley did so. According to Baxley, when
they arrived at the K&G parking lot, [Somberger] interacted with
boys in a white Bonneville. Shortly thereafter, Baxley watched
[Somberger] approach a group of kids (who were walking from
the Wow toward a bus stop) and open fire on them. After the
shooting, Baxley, [Somberger], and others in the Caprice and
Bonneville entered their vehicles and fled the scene.
Shortly thereafter, Officer [Joseph Hansbury and his partner]
found the Chevrolet Caprice and Pontiac Bonneville in a parking
lot near the Lindenfield Projects. When police investigated, they
discovered [that] the Caprice was vacant with its engine still
running. The police learned that the Caprice belonged to
Stephen Baxley. Police recovered a shotgun from the trunk of
the Caprice. Baxley said in his statement that [Somberger] put
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the gun in his car, but at trial Baxley said he did not know how
the shotgun got into his car.
While [T.G.] and [R.H.] were recovering from their gunshot
wounds in the hospital, Detective Guarna interviewed them.
Detective Guarna also showed them a photo array that included
of the dispute at Wow skating rink. Moreover, [R.H.] identified
[Somberger] as the shooter. As a result, the police
subsequently arrested [Somberger].
PC -4 (citations to the notes of
testimony and some footnotes omitted).
On February 7, 2008, the trial court sentenced Somberger to two
murder convictions,2
imprisonment for the firearm conviction. The trial court also imposed a
consecutive three-year term of probation for the firearm conviction. No
further penalty was imposed for the possession of an instrument of crime
conviction.
judgment of sentence. Commonwealth v. Somberger, No. 720 EDA
2008, slip op. at 1, 18 (Pa. Super. Oct. 1, 2009). On March 23, 2010, the
Pennsylvania Sup
appeal. Commonwealth v. Somberger, 991 A.2d 312 (Pa. 2010) (per
curiam).
____________________________________________
2
The trial court determined that the aggravated assault conviction
merged with the attempted murder conviction.
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On June 14, 2010, Somberger timely filed a first pro se PCRA petition.
After numerous appointments (and withdrawals) of counsel, Somberger filed
a counseled amended PCRA petition on June 29, 2012, in which Somberger
May 10, 2013, the PCRA court issued notice to Somberger indicating the
to Pa.R.Crim.P. 907. On June 21, 2013, the PCRA court formally dismissed
On June 27, 2013, Somberger filed a notice of appeal. On November
18, 2013, Somberger filed a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).3 On December 17, 2013, the PCRA
court issued an opinion pursuant to Pa.R.A.P. 1925(a).
Somberger presents the following three issues for our consideration:
I.
statement through the officer violated the Confrontation
Clause?
II. Was the PCRA cour
legal error because prior counsel was ineffective when
counsel failed to demonstrate at trial or argue on appeal
officer was a violation of the rules of evidence and the
Confrontation Clause?
III.
inconsistent with the record because Mr. Stewart never
____________________________________________
3
The PCRA court did not direct Somberger to file a concise statement.
Nonetheless, Somberger elected to file a statement on his own volition.
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er in
the night?
Brief for Somberger at 5.
Our review of a PCRA court order dismissing a petition under the PCRA
is subject to the following standard:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court
the record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford
no such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012)
(quoting Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012);
internal citations omitted).
without a hearing is as follows:
If the judge is satisfied from this review [of the petition] that
there are no genuine issues concerning any material fact and
that the defendant is not entitled to post-conviction collateral
relief, and no purpose would be served by any further
proceedings, the judge shall give notice to the parties of the
intention to dismiss the petition and shall state in the notice the
reasons for the dismissal.
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hearing on a PCRA petition, and if the PCRA court can determine from the
record that no genuine issues of material fact exist, then a hearing is not
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008).
as substantive evidence. Hence, we commence with a brief discussion of
trial.
As noted earlier, after the shooting at the roller skating rink, the police
located two vehicles that they believed were involved in the shooting.
Baxley was observed by a police officer running away from one of the
vehicles, the Chevrolet Caprice. Baxley later admitted that the Caprice
belonged to him. Regardless, Baxley was apprehended while fleeing the
vehicle. Detective Vincent Guarna interviewed Baxley about his involvement
in the crime. Detective Guarna transcribed the details provided by Baxley
during the interview, which Baxley then reviewed and signed.
In the interview, Baxley told Detective Guarna that Somberger
instructed Baxley to drive back to the skating rink after the initial dispute
that got them ejected from the premises. When they got to the vicinity of
that were waiting in the awaiting Bonneville. Shortly thereafter, Baxley
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explained, Somberger approached a group of kids who were walking away
from the rink (including R.H. and T.G.) and opened fire on them. Baxley told
Detective Guarna that Somberger returned to the area where the two
vehicles were parked, deposited a shotgun in the trunk of the Caprice, and
that they all fled the scene in the two vehicles.
At trial, Baxley testified that he did not remember giving the statement
to the police. Baxley alleged that, at the time, he had been drinking alcohol
and ingesting narcotics on a daily basis. He also asserted that he did not
remember signing the statement after being interviewed by Detective
Guarna. Baxley testified that, although he knew Somberger, he was not
with him at the skating rink on the night in question. Baxley also did not
remember how the shotgun got into the trunk of his car. Baxley testified
again on cross-examination that he did not remember making the
statement, being arrested, or being interviewed by Detective Guarna.
After brief argument at sidebar, the Commonwealth introduced
statement question-by-question with the detective, introducing to the jury
introduction of the prior inco
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basis upon which the Commonwealth moved for admission of the statement
was Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992) (discussed infra).
The trial court admitted the statement in its entirety as substantive evidence
pursuant to Lively.
claims. In his first issue, Somberger presents a direct challenge to the
admis
the Sixth Amendment to the United States Constitution, and Article 1,
Section 9 of the Pennsylvania Constitution. See Brief for Somberger at 16.
We first must consider whether this claim is cognizable, or whether it is
waived for PCRA purposes.
based upon subsection § 9543(a)(2)(i) of the PCRA, which provides as
follows:
To be eligible for relief under this subchapter, the petitioner
must plead and prove by a preponderance of the evidence . . .
[a] violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States 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. § 9543(a)(2)(i). Although Somberger raises a violation of both
the United States and Pennsylvania Constitutions, which are facially
cognizable
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waived if the 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
could have been raised at trial. It was not. As noted earlier, the only
challenge that counsel raised to Baxley
claim could have been raised at trial, but was not, it is waived for PCRA
purposes pursuant to the clear terms of subsection 9544(b).
Regardless of whether his direct challenge is waived, Somberger raises
a similar challenge in the context of ineffective assistance of counsel in his
second claim. See Commonwealth v. Collins, 888 A.2d 564, 573 (Pa.
2005). Indeed, Somberger contends (1) that trial counsel was ineffective for
violation of his Confrontation Clause rights, and (2) that counsel was
ineffective for failing to pursue the issue of whether the statement was
admissible under our rules of evidence or our constitutions on direct appeal.
See Brief for Somberger at 20-23.
In Pennsylvania, counsel is presumed effective, and a defendant
bears the burden of proving otherwise. In order to be entitled to
relief on a claim of ineffective assistance of counsel, the PCRA
petitioner must plead and prove by a preponderance of the
evidence that (1) the underlying claim has arguable merit;
(2) counsel whose effectiveness is at issue did not have a
reasonable basis for his action or inaction; and (3) the PCRA
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omissions were reasonable, we do not question whether there
were other more logical course of actions which counsel could
decisions had any reasonable basis. Further, to establish
prejudice, a petitioner must demonstrate that but for the act or
omission in question, the outcome of the proceedings would
have been different. Where it is clear that a petitioner has failed
to meet any of the three, distinct prongs . . . , the claim may be
disposed of on that basis alone, without a determination of
whether the other two prongs have been met.
Commonwealth v. Steele, 961 A.2d 786, 796-97 (Pa. 2008) (citations and
internal quotation marks omitted; emphasis in original).
We begin with the arguable merit prong of the IAC test. Although
Somberger presents distinct claims under our constitutions and our rules of
evidence, resolution of this prong of the IAC test in this case boils down to a
single inquiry: whether Baxley was subject to cross-examination at trial
about his prior out-of-court statement. Accordingly, we consider
The Confrontation Clause of the Sixth Amendment to the United States
Constitution, applicable to the states through the Fourteenth Amendment,
Similarly, Article 1, Section 9 of the Pennsylvania
all criminal prosecutions the accused hath a right . . . to be confronted with
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In Crawford v. Washington, 541 U.S. 36 (2004), the United States
Supreme Court held that the Confrontation Clause prohibits the government
at trial, unless the Commonwealth can demonstrate that the witness is
unavailable to testify and that the defendant had an opportunity to cross-
examine the witness about the hearsay statements. However, the
long as the declarant testifies at trial and is subject to cross-examination,
without running afoul of the Confrontation Clauses. Id.
the declarant appears for cross-examination at trial, the Confrontation
Clause places no constraints on the use of his prior testimonial
state California v. Green, 399 U.S. 149,
162, (1970)); see also Commonwealth v. Barnett, 50 A.3d 176, 189 n.6
apply where the out-of-court speaker is available for cross-examination in
was testimonial. See Brief for Somberger at 17. Thus, our sole inquiry is
whether Baxley was subjected to cross-examination sufficient to satisfy the
Confrontation Clauses in our constitutions.
The United States Supreme Court has explained that the Confrontation
-examination
that is effective in whatever way, and to whatever extent, the defense may
United States v. Owens
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-
Id. (quoting Kentucky v. Stincer, 482 U.S. 730, 739
(1987)).
We now turn our atte
prior inconsistent statement did not meet the requirements set forth in the
Pennsylvania Rules of Evidence to be admissible as substantive evidence. In
Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992), our Supreme Court held
formal legal proceeding; or the statement had been reduced to a writing
signed and adopted by the witness; or a statement that is a
Id. at
10. The rule from Lively was codified in our rules as Pennsylvania Rule of
Evidence 803.1(1). Rule 803.1 provides that prior inconsistent statements
are admissible as substantive evidence if the declarant is subject to cross-
penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;
(B) is a writing signed and adopted by the declarant; or (C) is a verbatim
contemporaneous electronic, audiotaped, or videotaped recording of an oral
Instantly, Somberger admits that the contested statement was written
and that it was signed by Baxley, satisfying subsection (B) of Rule 803.1(1).
See Brief for Somberger at 22. Accordingly, we turn our attention to the
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lone question that we must resolve: whether Baxley was subject to cross-
examination sufficient to satisfy Pa.R.E. 803.1 and the Confrontation Clauses
enshrined in our constitutions. For the reasons that follow, we hold that the
cross-examination of Baxley was sufficient.
To this point, Somberger relies almost exclusively upon the
Commonwealth v. Romero, 722
A.2d 1014 (Pa. 1999). In Romero, a landlord, who went to collect rent
from tenants at an apartment building that he owned, was robbed and killed
inside of the building. Id. at 1015. His body was later found hog-tied,
wrapped in sheets, and discarded on the side of a secluded road. A few
weeks after the robbery and murder, Romero and three other individuals
were arrested.
One of the individuals arrested was a man named George Barbosa.
Prior to trial, Barbosa confessed to his role in the crimes. Id. at 1016.
Barbosa explained to police that he, Romero, and two others all were
involved in the planning and execution of the crimes. Barbosa told police
that he and Romero hid in a third-floor bathroom while another individual
brought the landlord up to the third floor, where Romero attempted to kill
the landlord by hitting him on the head with a pistol. When that technique
and then he, Romero, and another individual took turns tightening the towel
until the landlord was dead. Barbosa explained to the police that they then
wrapped the body in bed sheets, and dumped it in a desolate area. Id.
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In exchange for a guilty plea for a life sentence (instead of the death
Barbosa acknowledged during his testimony that he had provided a
statement to the police that implicated other men in the robbery and
murder. However, he did not name Romero as one of those men.
testimony a transcription of the tape-recorded statement that Barbosa had
provided to the police that implicated Romero. Id.
Romero was convicted of first-degree murder and related charges, and
was sentenced to death. On direct appeal to the Pennsylvania Supreme
Court, Romero argued that the trial court erred in permitting the
because Romero was not able to cross-examine Barbosa due to his outright
ent in the crimes.
The Court agreed with Romero that admission of the statement was error.
Id. at 1016-17. The Court noted that, for a prior inconsistent statement to
be admissible as substantive evidence, the declarant does not only have to
be available for cross-examination generally, but the declarant specifically
must be available for cross-examination concerning the prior statement at
issue. Id. at 1017. Quoting Commonwealth v. Brady, 507 A.2d 66 (Pa.
1986), the Court explained that such examination provides the trier of fact
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with a meaningful opportunity to observe the sworn witness while being
questioned about the discrepancy between the prior statement and the
testimony that he was providing in open court. Romero, 722 A.2d at 1017
(quoting Brady, 507 A.2d at 69).
refused to answer questions about the prior statement as it related to
cross-examine Barbosa on the veracity of his prior statement implicating
Romero. Id. at 1017-18. Nonetheless, the Court ultimately held that the
Somberger steadfastly maintains that the circumstances of this case
mirror those in Romero
was inadmissible. We disagree. In Romero, the testifying witness
intentionally refused to answer questions, effectively preventing meaningful
cross-examination. Instantly, Baxley did not refuse to answer questions, but
rather testified under oath that he did not remember being at the skating
rink, being arrested, providing a statement to the police, or identifying
Somberger as being the shooter. Refusing to answer questions and not
being able to remember certain facts differ qualitatively, a distinction that
was illustrated in Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super.
2002).
In that case, Carmody was arrested after his girlfriend went to a local
police station and reported that Carmody had assaulted her earlier that
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evening. Id. at 145. The girlfriend showed physical signs that corroborated
girlfriend then provided the police with a written statement describing the
assault in detail. Specifically, she explained that Carmody hit her
repeatedly, and threatened to kill her while holding a knife to her throat.
Carmody was arrested shortly thereafter. Id.
hearing. She denied that Carmody hit her, and informed the court that she
had sent a letter to the court asking that the charges against Carmody be
dropped. She further explained that she had been drinking heavily on the
night in question, and could not remember anything that happened on that
night. She maintained that nothing that she wrote for the police was reliable
due to her intoxication. Id.
The Commonwealth sought, and was permitted, to introduce the
hearing. The police officer who took the statement testified as to the
contents of the statement, and to his opinion that the girlfriend was not
intoxicated when she provided the statement. Id. at 145-46.
After Carmody was held over for trial, he filed a pre-trial habeas
corpus motion seeking to dismiss the charges against him. The habeas
court concluded that the prior written statement was inadmissible, and
dismissed one of the charges against Carmody. The Commonwealth
appealed. Id. at 146.
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On appeal, this Court rejected the habeas
d, she was
unavailable for cross-examination. To the contrary, this Court noted the
following:
We cannot agree that there was no opportunity to cross-examine
[the girlfriend] on her prior statement. Both Carmody and the
Commonwealth were permitted to question [her] as to why she
said one thing on the night she fled from Carmody and
something entirely different at the preliminary hearing. Those
inquiries constituted classic cross-examination regarding prior
statements. The substance of [her] answers does not dictate
whether she was subject to cross-examination. The question
is whether she testified about the prior statement, not what she
responded when she testified.
Id. at 149 (emphasis in original). Additionally, we noted that, by accepting
and rulin
remember anything from that night, the habeas court functionally assessed
her credibility, which is an exercise that is reserved solely for a fact finder.
Id. For these reasons, we reversed the habeas court, and remanded the
matter for trial on all charges.
Returning to the present case, we must conclude that Baxley was
subject to cross-examination sufficient to satisfy our constitutions, Pa.R.E.
803.1(1), and Lively. This case is more akin to Carmody than it is to
Romero. The most obvious distinction is that Baxley did not outright refuse
to answer questions regarding Somberger like Barbosa did in Romero.
Rather, Baxley alleged that he was using drugs and alcohol on a daily basis,
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and that the use of those substances totally impaired his ability to recall the
events in question, much like the girlfriend in Carmody.
More importantly,as in Carmody, Baxley was cross-examined about
the statement. On direct examination, Baxley claimed not to remember any
of the details of the night in question. N.T., 12/6/2007, at 88-91. The
prosecutor confronted Baxley with the statement, and went through the
statement in detail. Baxley continued to assert that he did not remember
the details of the night in question due to his intoxication. Id. at 92-111.
On cross-examination, defense counsel questioned Baxley about his use of
drugs, his inability to remember the details of the night in question, the fact
that his initials and signature appear on the written statement, and the
shotgun that was found in his car. Id. at 112-118.
Thus, Somberger was able to cross-examine Baxley about the prior
statement. He may not be content with the answers that he received, but,
as we stated in Carmody substance
not dictate whether [the witness] was subject to cross-examination.
The question is whether [the witness] testified about the prior statement,
Carmody,
799 A.2d at 149 (emphasis in original). Upon the weight of this precedent,
Baxley clearly was subject to cross-examination. Consequently,
stimony, as well as his claim that
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testimony on direct appeal based upon Pa.R.E. 803.1(1) and Lively, lack
arguable merit. As such, his entire IAC claim necessarily fails. See Steele,
supra.
In his last issue, Somberger contends that trial counsel was ineffective
for failing to object to a factually erroneous jury instruction given by the trial
court. H.S. was inside of the skating rink during the initial melee that
resulted in numerous individuals being ejected from the rink. In fact, H.S.
mistakenly was included in the group of people that were ejected. H.S. was
able to identify Somberger as one of the individuals who was involved in the
fight inside of the skating rink. However, H.S. was not able to identify
Somberger as one of the shooters outside of the rink later that evening.
Nonetheless, in its instructions to the jury, the trial court stated the
any of the three, distinct prongs . . . , the claim may be disposed of on that
basis alone, without a determination of whether the other two prongs have
Steele, 961 A.2d at 797. Hence, we proceed directly to the
prejudice prong of the IAC test. To satisfy the prejudice prong, Somberger
his trial would have been different. Id. Somberger cannot make such a
demonstration.
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was not repeate
more importantly, the isolated misstatement was overwhelmingly
outweighed by the evidence against Somberger at trial. H.S. identified
Somberger as being inside of the skating rink during the initial fight. H.S.
also observed as the fight continued briefly outside of the rink, as well as
to return to the rink for additional violence. In his statement to the police,
Baxley i
identification, the police constructed a photo array. R.H. identified
Somberger as the shooter from the array.
The evidence at trial identifying Somberger as the shooter of R.H. and
T.G. was subst
isolated, but mistaken, statement that R.S. also identified Somberger carried
such influence that, had counsel objected, the result of the trial would have
been different. Somberger has not satisfied the prejudice prong of the IAC
test, and his claim must fail in its entirety.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2014
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