Com. v. Siegel, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVEN THOMAS SIEGEL
Appellant No. 1418 WDA 2014
Appeal from the PCRA Order July 22, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001001-2010
CP-25-CR-0002769-2011
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED JULY 17, 2015
Steven Siegel appeals from the dismissal by the Court of Common
Pleas of Erie County of his petition filed under the Post Conviction Relief Act,
42 Pa.C.S.A. §§ 9541-9546. Upon careful review, we affirm.
The PCRA court has set forth the relevant facts and procedural history
of this matter as follows:
On March 20, 2011, a jury found [Siegel] guilty at docket 2769
of 2011 of attempted homicide, robbery, aggravated assault,
criminal conspiracy to commit robbery, recklessly endangering
another person, possession of instruments of a crime, terroristic
threats, theft by unlawful taking or disposition, and receiving
stolen property. All these crimes [arise] out of an incident that
occurred on August 8, 2008 when [Siegel] shot the victim. The
jury acquitted [Siegel] of robbery at docket 2772 of 2011. This
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*
Retired Senior Judge assigned to the Superior Court.
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alleged robbery occurred at the same location, but on a separate
date, i.e., July 18, 2008. On May 1, 2012, the Honorable
Michael E. Dunlavey, now senior judge of this Court, sentenced
the petitioner to an aggregate term of imprisonment of 23 to 50
years plus 20 years of consecutive probation. [Siegel] was also
sentenced to [a] 5 to 10 year sentence at an unrelated docket,
1001-2010. [Siegel] took a direct appeal and the judgment of
sentence was affirmed by the Superior Court on March 22, 2013.
PCRA Court Opinion, 6/24/14, at 1-2.
Siegel filed a pro se petition for PCRA relief on December 20, 2013.
Counsel was appointed and on April 17, 2014 filed an amended petition. On
July 22, 2014, the PCRA court entered an order dismissing the petition
without an evidentiary hearing.
On August 20, 2014, Siegel filed a timely notice of appeal to this
Court, in which he raises the following claims:1
A. Whether trial counsel was ineffective for failing to object to
the recall of Mr. Zierenberg, the victim, after his original
testimony.
B. Whether trial counsel was ineffective for not trying to
suppress [Siegel’s] statements made to Corporal Zeybel
while in custody after requesting an attorney, and not
cross-examining Corporal Zeybel at trial regarding the
circumstances of the same.
C. Whether trial counsel was ineffective for not objecting to
the sentence imposed.
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1
Siegel raised additional claims in his Statement of Questions Presented for
Review. However, his counsel conceded that they are meritless and
therefore, we will consider them abandoned for purposes of appeal. We
have reordered Siegel’s remaining claims for ease of disposition.
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D. Whether the Commonwealth failed to disclose to the jury
all the information concerning a plea bargain with co-
conspirator, Robert Dimon, who testified against [Siegel].
Brief of Appellant, 1/30/15, at 1-2.
The standard and scope of this Court’s review of the PCRA petition
dismissal is as follows:
[I]n reviewing the propriety of an order granting or denying
PCRA relief, we are limited to determining whether the evidence
of record supports the determination of the PCRA court, and
whether the ruling is free of legal error. Great deference is
granted to the findings of the post-conviction court, and these
findings will not be disturbed unless they have no support in the
certified record.
Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002).
In order to be eligible for PCRA relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction resulted from
one or more of the enumerated defects found in 42 Pa.C.S.A. § 9543(a)(2),
and that the allegation of error has not been previously litigated or waived.
42 Pa.C.S.A. § 9543(a)(3). An error has been previously litigated if the
highest appellate court in which the petitioner could have had review as a
matter of right has ruled on the merits of the issue or it has been raised and
decided in a proceeding collaterally attacking the conviction or sentence. 42
Pa.C.S.A. § 9544(a). An issue has been waived if the petitioner could have
raised it but failed to do so before trial, at trial, on appeal, or in a prior state
post-conviction proceeding. 42 Pa.C.S.A. § 9544(b).
Siegel’s first three claims involve allegations of ineffectiveness of
counsel. The law presumes that trial counsel was effective.
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Commonwealth v. Rios, 920 A.2d 790, 805 (Pa. 2007). “In order to
obtain relief under the PCRA premised upon a claim that counsel was
ineffective, a petitioner must establish beyond a preponderance of the
evidence that counsel's ineffectiveness so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002)
(quotation marks omitted) (citing 42 Pa.C.S.A. § 9543 (a)(2)(ii)).
In order to succeed on an ineffectiveness of counsel claim, “[a]ppellant
must demonstrate that: (1) the claim is of arguable merit; (2) counsel had
no reasonable strategic basis for his or her action or inaction; and (3)
counsel's ineffectiveness prejudiced him.” Commonwealth v. Michaud, 70
A.3d 862, 867 (Pa. Super. 2013). “Counsel cannot be deemed ineffective
for failing to pursue a meritless claim.” Payne, 794 A.2d at 906. When it is
clear that the appellant has not met the prejudice prong of the
ineffectiveness standard, the claim may be dismissed on that basis alone
without an analysis of the first two prongs. Commonwealth v. Travaglia,
661 A.2d 352, 357 (Pa. 1995).
Siegel’s first alleges that trial counsel was ineffective for failing to
object to the Commonwealth’s recalling of Stephen Zierenberg, the victim,
after his original testimony. At the trial, Siegel alleges that all of the
witnesses were sequestered. Siegel argues that he was prejudiced when
Zierenberg re-took the stand after witnessing the remainder of the
Commonwealth witnesses’ testimony. After Zierenberg’s initial testimony,
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an audiotaped statement given by Siegel to Trooper O’Neill and Trooper Van
Horn was played for the jury while Zierenberg was present in the courtroom.
N.T. Trial, 3/20/12, at 50-53. After being recalled, Zierenberg testified that
he approached the assistant district attorney upon hearing the tape and
indicated that he recognized the voice as the man who shot him. Id. at 99.
Zierenberg testified that he could identify Siegel by his voice, which was
relevant as Siegel wore a mask during the robbery and could not be
identified by his appearance. Id. at 100. Siegel’s allegation, however, lacks
merit as there is no evidence in the record that the court ever issued a
sequestration order. Accordingly, counsel cannot be held ineffective for
failing to object to a violation of a non-existent order.
Even assuming, arguendo, there had been such an order, Siegel still
cannot prevail. First, the decision whether to allow a party to recall a
witness is left to the trial court’s discretion and is not reversible error unless
it constitutes a palpabe abuse of discretion. Commonwealth v. Crosby,
297 A.2d 114, 116 (Pa. 1972) (citation and quotation marks omitted).
Second, this Court has held that a witness may testify to a person’s identity
from his voice alone. Commonwealth v. Jones, 954 A.2d 1194, 1195 (Pa.
Super. 2008). The weight to be accorded to the voice identification
testimony is a question for the trier of fact. Id.Here, because Zierenberg could not identify Siegel by appearance, it
would have been reasonable for the trial court to allow Zierenberg to be
recalled and to allow the jury to weigh the voice identification testimony,
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regardless of whether there had or had not been a sequestration order.
Accordingly, the court’s action cannot be said to constitute a palpable abuse
of discretion and Siegel’s allegation of ineffectiveness fails.
Siegel next claims that trial counsel was ineffective for not attempting
to suppress his statements made to Corporal Zeybel while in custody after
requesting an attorney, and for not cross-examining Corporal Zeybel
regarding the circumstances surrounding the statements.
Siegel’s first claim, that his trial counsel was ineffective for not trying
to suppress his statements to Corporal Zeybel, was not raised in the PCRA
court and is, therefore, waived for purposes of appeal under 42 Pa.C.S.A. §
9544(b). As for the issue of the failure to cross-examine Corporal Zeybel,
Siegel argues that had trial counsel cross-examined Corporal Zeybel, the
jury would have known that Siegel was illegally questioned, which would
have affected the credibility of Corporal Zeybel’s testimony.
Here, Siegel must show that the outcome of the proceedings would
have been different had trial counsel cross-examined the witness in
question. However, Siegel provides no argument as to how a cross-
examination would have tested Corporal Zeybel’s credibility, how it would
have supported his allegation as to the illegality of his questioning by police,
or how it would have changed the outcome of the trial. Therefore, this claim
lacks merit.
Siegel next claims that trial counsel was ineffective for not objecting to
the sentence imposed. The trial judge had originally sentenced Siegel to a
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term of twelve (12) to twenty-four (24) years in prison for the attempted
murder conviction, but upon the urging of the Assistant District Attorney, the
trial judge added an additional six (6) to twelve (12) years to the attempted
murder conviction. N.T. Sentencing, 5/1/12, at 21-26. Siegel argues that
trial counsel failed to object to this increase in sentence, where the court did
not provide sufficient reasons for doing so on the record. This claim is
meritless.
Contrary to Siegel’s claim, the trial court provided ample reasoning for
its sentences, which were all within the guidelines. The trial court stated:
This crime was cold. It was calculating, and showed a total
disregard for the life of the victim in this case. And I think, Mr.
Siegel, you know the harm that you have inflicted on this man
for no good reason. I can remember clearly his testimony to
how he remembered what happened to him, that he was looking
at the barrel of a bolt action .22 caliber rifle, and as he
remembers it, a round was fired and skimmed his skull as he
tried to duck down, and he watched you pull the bolt back,
charge another live round into the chamber, lean over the
counter, a counter that you actually were familiar with the layout
because of your prior employment at another location, and shoot
him in the head where that bullet remains today.
It’s only through the grace of God and his perseverance that he
survived. And he survives with the knowledge that there is a
bullet in his brain. He survives with the knowledge that he
cannot function as he had before. He survives with what we
have heard twice, three times in his testimony now that I heard
it, of incalculable pain that will never go away.
I do not know what motivates you. I don’t know what the cause
of this was, because as part of the sentence, I’m ordering you
complete a psychological work-up of you, and am recommending
that you will receive whatever appropriate treatment is
necessary to help you with whatever the problems are that you
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suffer from, but this case, in my mind showed a total disregard
for the safety and the life of another human being.
I look at this knowing full well that you’re already serving, I
believe, five to ten years for an aggravated assault that
happened subsequent to this incident.
I don’t do this lightly, because you are still [an] extremely young
man.
N.T. Sentencing, 5/1/12, at 20-21.
As the trial court clearly stated its reasons for the sentences, and
because the sentences themselves are reasonable under the circumstances,
this claim is meritless.
Finally, Siegel claims that the Commonwealth failed to disclose to the
jury all the information concerning an alleged plea bargain with his co-
conspirator, Robert Dimon, who testified against Siegel at trial. Siegel
asserts that the Commonwealth’s failure to disclose the terms of its
agreement with Dimon resulted in a violation of Siegel’s Due Process rights
under United States v. Giglio, 405 U.S. 150 (1972). There, the Supreme
Court held that when the reliability of a witness may well be determinative of
guilt or innocence, nondisclosure of evidence affecting that witness’
credibility justifies a new trial, irrespective of the good faith or bad faith of
the prosecution. Id. at 153-54. A new trial is required if “the false
testimony could . . . in any reasonable likelihood have affected the judgment
of the jury[.]” Id., quoting Napue v. Illinois, 360 U.S. 264, 271 (1959).
The Commonwealth argues that, in order to trigger the disclosure
requirement under Giglio, there must be an actual agreement in place. See
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Commonwealth v. Burkhart, 833 A.2d 233 (Pa. Super. 2003). In this
case, the Commonwealth asserts, Dimon testified at Siegel’s trial that the
plea bargains he had entered into with the Commonwealth were not agreed
to in exchange for his testimony against Siegel. Specifically, Dimon testified
that “[he] doesn’t believe that [his reduced charges] were in consideration of
[his] testimony” and that the “plea was before [he had] agreed to testify.”
N.T. Trial, 11/18/10, at 17. In short, claims the Commonwealth, there is
nothing in the record to support Siegel’s claim that there existed an
“understanding” between Dimon and the Commonwealth.
Siegel, however, cites to the opinion of the trial court, in which the
court states that “[p]rior to trial, Robert Dimon entered into a plea
agreement whereby he would testify at [Siegel’s] trial in exchange for a
guilty plea to two counts of Robbery, with all remaining counts being nolle
prossed.” Trial Court Opinion, 9/19/12, at 2. In support of that statement,
the trial court cites to the guilty plea entered by Dimon at docket numbers
2056 and 2049 of 2011.2
Essentially, this is an after-discovered evidence claim in which
information contained in the trial court’s Rule 1925(a) opinion on direct
appeal is the “evidence” forming the basis of the claim. Pursuant to
Pa.R.Crim.P. 720(C), “[a] post-sentence motion for a new trial on the
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2
The transcripts of those proceedings are not included in the certified record
transmitted to this Court.
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ground of after-discovered evidence must be filed in writing promptly after
such discovery.” Id. When such evidence is discovered during the direct
appeal process, the appellant “should include a request for a remand to the
trial judge.” Id., note.
Under the PCRA, “an issue is waived if the petitioner could have raised
it but failed to do so before trial, at trial, . . . on appeal, or in a prior [PCRA]
proceeding.” 42 Pa.C.S.A. § 9544(b). As Siegel could have, and should
have, raised this claim after discovering it during the direct appeal process,
he has waived it for purposes of PCRA review.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2015
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