Com. v. Rebert, S. ( 2018 )

J-S85033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
STEVEN PATRICK REBERT
Appellant No. 1036 WDA 2017
Appeal from the PCRA Order Entered June 19, 2017
In the Court of Common Pleas of Jefferson County
Criminal Division at No: CP-33-CR-0000386-2010
BEFORE: BOWES, PANELLA, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 28, 2018
Appellant, Steven Patrick Rebert, appeals from the June 19, 2017 order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-46. We affirm.
Pursuant to his January 30, 2012 judgment of sentence, Appellant is
serving consecutive life sentences for the murders of James and Victoria
Shugar. This Court affirmed the judgment of sentence and our Supreme Court
denied allowance of appeal on November 12, 2014. Appellant filed this timely
first PCRA petition on November 16, 2015. Amended, counseled petitions
were filed on February 24, 2017, and May 5, 2017. The PCRA court conducted
a hearing on May 12, 2017. The court entered the order on appeal on June
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18, 2017. This timely appeal followed. Appellant raises two assertions of
error:
1. Did the trial court err in failing to find that [Appellant]
was denied the effective assistance of counsel, and that
he was thereby prejudiced and entitled to a new trial,
when his trial counsel failed to discover and utilize as
impeachment evidence at trial Commonwealth’s witness
Mr. Joel Eagleson’s 2004 felony robbery/attempt crimen
falsi conviction out of Monroe County, New York,
docketed at No. 2004-3012, when Mr. Joel Eagleson was
a key witness for the prosecution and his testimony at
trial linked [Appellant] to having had committed the
murders of the two (husband/wife) victims?
2. Did the trial court err in failing to find that [Appellant]
was denied the effective assistance of counsel, and that
he was thereby prejudiced, when [Appellant’s] trial
counsel failed to assure his presence at the October 26,
2011, pre-trial ‘In Chambers’ hearing held on
[Appellant’s] motion in limine (filed with the lower court
on August 31 ,2011?
Appellant’s Brief at 5.
We must determine whether the record supports the PCRA court’s
findings and whether the court committed any legal error in rendering its
decision. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011),
appeal denied, 42 A.3d 1059 (Pa. 2012). Appellant alleges that trial counsel
was ineffective in several respects. To obtain relief on a claim of ineffective
assistance of counsel, a PCRA petitioner must establish (1) that the underlying
issue is of arguable merit; (2) that counsel had no reasonable strategic basis
in support of the act or omission; and (3) that counsel’s error prejudiced the
petitioner. Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016).
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To prove that counsel’s chosen strategy lacked a reasonable
basis, a petitioner must prove that an alternative not chosen
offered a potential for success substantially greater than the
course actually pursued. Regarding the prejudice prong, a
petitioner must demonstrate that there is a reasonable probability
that the outcome of the proceedings would have been different
but for counsel’s action or inaction. Counsel is presumed to be
effective; accordingly, to succeed on a claim of ineffectiveness the
petitioner must advance sufficient evidence to overcome this
presumption.
Id. (internal citations and quotation marks omitted). Failure to impeach a key
witness without a reasonable strategic basis for doing so can be considered
ineffective assistance of counsel. Commonwealth v. Treiber, 121 A.3d 435,
485 (Pa. 2015). On the other hand, in Commonwealth v. Solano, 129 A.3d
1156, 1175 (Pa. 2015), our Supreme Court found no ineffective assistance in
failing to introduce a prior crimen falsi conviction where the jury was aware of
the witness’ criminal backgrounds and other evidence supported the
defendant’s guilt.
Eagleson, Appellant’s cellmate in prison in New York, testified that
Appellant confessed the Shugars’ murders to him. Appellant’s trial counsel
impeached Eagleson with the fact that Eagleson received favorable treatment
in New York in exchange for information Eagelson provided about the Shugars’
murders. Appellant alleges trial counsel was ineffective for failing to discover
Eagleson’s prior crimin falsi conviction, a 2004 conviction in Monroe County,
New York, for attempted robbery. Appellant argues that counsel’s error was
prejudicial because Eagleson’s testimony was the only direct evidence, other
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than drops of the victims’ blood discovered on Appellant’s boots, implicating
Appellant as the perpetrator.
We will confine our analysis to the prejudice prong, as the parties do not
dispute that Eagleson’s prior conviction was admissible under Pa.R.E. 609 and
trial counsel offered no strategic basis for failing to introduce it. Counsel
simply failed to discover the conviction. The pertinent facts, which are not in
dispute, are as follows. On April 12, 2010, James and Victoria Shugar, were
found dead in their home on Coal Tipple Road near Brockway, Pennsylvania.
The murders took place on April 10 or 11, 2010. The Shugars had been the
owners of a flower shop in Brockway. Shortly prior to the victims’ murders,
Appellant had a job laying fiber optic cable on Coal Tipple Road. In addition,
Appellant was in a relationship with Michelle Bright, an employee at the
victims’ flower shop, prior to the murders. Appellant visited Bright at the
flower shop on several occasions, but his relationship with Bright ended at
some point prior to the murders. The Commonwealth introduced surveillance
footage from a Sheetz store in Brockway which showed Appellant at the store
on April 10, 2010, in contradiction to his statements that he was not in
Brockway when the murders occurred.
Police executed search warrants on Appellant’s home, home computer,
and car in April and May, 2010. In Appellant’s home, they discovered a red
seal 1953 two-dollar bill, gold Sacagawea dollars and Morgan silver dollars.
The victims commonly provided similar coinage and paper currency to their
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children as gifts. The victims kept a large amount of such currency in their
home. Crumpled envelopes that would have contained some of the money
were found in the victims’ home after the murders. A search of Appellant’s
computer revealed that, in the early morning hours of April 11, 2010,
Appellant began running Google searches related to the prices of old paper
currency and coinage. No similar searches occurred prior to that time. In the
trunk of Appellant’s car police discovered a pair of work boots with blood on
them. Forensic testing revealed that the blood belonged to victim James
Shugar. Eagleson testified that Appellant told him he murdered the victims
because he knew they had a stash of old money in their home.
Given the foregoing, we disagree with Appellant’s assessment of the
significance of additional crimen falsi impeachment evidence. Defense counsel
introduced the fact that Eagleson received favorable treatment in New York
for his testimony against Appellant in Pennsylvania. The jury was therefore
presented with a basis for questioning Eagleson’s credibility based on his
criminal background, even without evidence of the 2004 conviction. We
conclude that Treiber is inapposite because counsel did not fail to impeach
Eagleson.
Furthermore, we disagree with Appellant’s assessment of the strength
of the evidence against him. Surveillance footage placed Appellant in
Brockway when the murders occurred, despite his statements to the contrary.
Police found in Appellant’s home coinage and paper currency of exactly the
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type the victims were known to collect and give as gifts. Google search related
to the currency began to occur on Appellant’s computer shortly after the
murders were believed to have occurred. In summary, the Commonwealth’s
case included much more than Eagleson’s testimony and the (highly
incriminating) blood stain on Appellant’s boots. The record does not support
Appellant’s argument that Eagleson’s testimony was the only “solid link” other
than the bloody boots linking Appellant to the murders. Appellant’s Brief at
18. Rather, the Commonwealth produced a body of circumstantial evidence
powerfully demonstrating Appellant’s guilt.
In the foregoing respects, we find Solano instructive:
[W]e agree with the PCRA court that Solano is not entitled
to relief on this claim. As the Commonwealth notes, counsel
attempted to impeach these witnesses by other means on cross-
examination, and the Commonwealth had already brought to the
jury’s attention the fact that Carrasquillo was incarcerated and
had gun and drug charges pending in federal court[.] Jose Aquino
had an open charge of receiving stolen property at the time of the
shooting, to which he pled guilty and served a sentence, and
Rosario pled guilty and served a sentence for illegally possessing
a gun at the time of the shooting[.] Although Santiago’s prior
crimen falsi conviction and probation status were not made known
to the jury, we cannot say the absence of this information denied
Solano a fair trial, as Santiago was merely one of several
identification witnesses; thus, Solano’s guilt did not depend solely
on this testimony. In light of the overall testimony of these
witnesses, counsel did not act unreasonably by not impeaching
them with crimen falsi convictions or introducing ballistics
evidence to rebut Rosario's testimony.
Solano, 129 A.3d at 1175 (record citations omitted). Here, as in Solano, the
jury was aware of criminal charges against the witness in question and a
substantial body of evidence other than the witness’ testimony support the
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guilty verdict. We conclude that Appellant has failed to establish any
probability that the outcome of trial would have been different had counsel
introduced Eagleson’s prior crimen falsi conviction. Appellant’s first argument
lacks merit.
Next, Appellant claims trial counsel was ineffective for failing to procure
Appellant’s presence during an in-chambers discussion of Appellant’s pretrial
motion. On two occasions, police visited Appellant at his home and asked him
to accompany them to the police station for an interview. On both occasions,
Appellant spoke to police but he declined to go to the police station. Among
the issues Appellant raised in his pre-trial motion was a motion in limine to
exclude evidence of these two conversations and evidence of his refusal to go
to the police station. Appellant was present in the courtroom for the hearing
on his pretrial motions, but the trial court heard argument from counsel in
chambers.1
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1 Appellant’s case was the subject of significant media attention. The
PCRA court explained the in chambers proceeding in its opinion:
[Appellant] filed motions in limine on August 31, 2011, at
which point a second omnibus hearing was already scheduled to
address evidence the police gathered from various sources in the
state of New York. Much of the evidence was inculpatory and bore
the very real potential of polluting the jury pool if it became public
knowledge. For that reason, the court decided to bring counsel
and Trooper David Ray into chambers for a pre-hearing
conference to flesh out the issues and reach a stipulation of facts
so that members of the press waiting in the small courtroom would
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In chambers, the prosecutor represented that Appellant, during his
conversations with police at his home, never asked for an attorney or refused
to talk. Appellant claims that he would have contradicted the prosecutor had
he been present in chambers. He claims he told police he wanted to speak
with an attorney and that he demanded that the police officers obtain a search
warrant before coming into his home. The trial court denied Appellant’s
motion in limine.
Criminal Rule 602(A) provides that “[t]he defendant shall be present at
every stage of the trial including the impaneling of the jury and the return of
the verdict, and at the imposition of sentence, except as otherwise provided
by this rule.” Pa.R.Crim.P. 602(A). Appellant notes that, when the defendant
is charged with a capital offense, the right is not waivable. He cites
Commonwealth v. Ford, 650 A.2d 433, 440 (Pa. 1994), cert. denied, 540
U.S. 1114 (1995), wherein the Court held that the trial court did not err in
refusing to allow defendant to be absent from the courtroom during trial (due
to his menacing appearance) because the defendant was charged with capital
offenses. As the PCRA court notes, however, Ford by its terms applies to the
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not become privy to potentially prejudicial information. As events
unfolded, counsel were able to stipulate to all the relevant facts,
thereby eliminating the need for a public hearing. [Appellant] was
not present to witness or offer his assessment of those
stipulations.
PCRA Court Opinion, 6/20/17, at 2-3.
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trial stage. Ford did not address a pretrial, in chambers legal argument, and
Appellant does not develop any argument in support of such a broad reading
of Ford.
We observe that the comment to rule 602 explains that the “defendant’s
right to be present in the courtroom is not absolute.” Pa.R.Crim.P. 602,
comment. While the comment is not binding law, it cites binding precedent
from our Supreme Court. In Commonwealth v. Boyle, 447 A.2d 250, 253
n.7 (Pa. 1982), the Supreme Court held that a defendant’s presence in
chambers and at sidebar is not necessary where the defendant is represented
by counsel. The Court wrote that “[defendant] contends that the court erred
in refusing to allow him to be present at in-chambers and sidebar conferences.
[Defendant’s] counsel attended the sidebar conferences and he was not
limited in the right to confer with [defendant] prior to, during and after these
discussions.” Id. In Boyle, as in the instant matter, the defendant was
charged with multiple counts of first-degree murder. Id. at 252. The
comment also cites Commonwealth v. Hunsberger, 58 A.3d 32, 39 (Pa.
2012), in which the Court found no error where counsel examined a
prospective juror at sidebar out of the defendant’s hearing. “[T]he
defendant’s consultation with his or her counsel regarding these proceedings
may certainly serve as an adequate basis upon which to conclude that the
defendant’s right to be present during jury impanelment [sic] has been
respected.” Id. at 40.
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Appellant relies on Commonwealth v. McLaurin, 437 A.2d 440 (Pa.
Super. 1981), in which this Court held that counsel was ineffective for
permitting a suppression hearing to take place when the defendant was not
present. We find McLaurin distinguishable in several respects. In McLaurin,
the defendant was absent during a courtroom proceeding, as opposed to a
sidebar or in chambers meeting, in which the Commonwealth elicited
testimony. Id. at 441-42. Counsel did not inform the defendant of the
hearing, nor did counsel ask the defendant if he wished to waive his right to
be present. Id. In addition, we observe that McLaurin predates our Supreme
Court’s opinions in Boyle and Hunsberger.
Appellant also cites Commonwealth v. Molina, 33 A.3d 51 (Pa. Super.
2011) (en banc), affirmed, 104 A.3d 430 (Pa. 2014) (plurality), in which a
trooper testified that a defendant declined to engage in discussions with him.
We held that the Commonwealth could not use a defendant’s pre-arrest, pre-
Miranda2 silence as substantive evidence of guilt. Id. at 53. Appellant claims
Molina supports his argument that, had he been present in chambers, he
could have established that he invoked his Fifth Amendment and, in turn, that
the Commonwealth produced evidence of his pre-arrest silence as substantive
evidence of his guilt.
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
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We conclude that neither the law nor the record supports Appellant’s
argument. As noted above, our Supreme Court has held that Rule 602 is not
implicated where a defendant’s counsel participates in sidebars or chambers
discussions outside of the defendant’s presence. In Boyle, as in the instant
matter, there was nothing to suggest that Appellant was unable to consult
with counsel both before and after the in chambers proceeding. McLaurin is
inapposite because Appellant was not excluded from the entire suppression
hearing, as was the defendant in that case.
Furthermore, Appellant’s current argument is based on information he
never shared with his attorneys. At the hearing on Appellant’s PCRA petition,
both of his trial attorneys stated that Appellant never told them he asked for
an attorney during his pre-arrest conversations with police. N.T. Hearing,
5/12/17, at 78-79, 124. Similarly, Appellant never told them that he
demanded that police obtain a warrant before returning to his home. Id. The
PCRA court found this testimony credible. Thus, in denying Appellant’s pre-
trial motion in limine, the trial court simply admitted evidence of statements
Appellant voluntarily provided to the police when no charges were pending
against him and when he was not in custody. This case is therefore distinct
from Molina in that there is no record support for Appellant’s argument that
the Commonwealth improperly introduced evidence of his pre-arrest silence.
In summary, Appellant has not established that his absence from an in
chambers discussion implicated Rule 602, nor has he established a factual
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basis in support of his argument that, had he been present, he would have
prevailed on his motions in limine. See Commonwealth v. Williams, 9 A.3d
613, 618-19 (Pa. 2010) (holding that a violation of Rule 602 does not result
in presumed prejudice). His assertion of ineffective assistance of counsel fails
for lack of arguable merit.
For all of the foregoing reasons, we affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2018
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