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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S45028-14


     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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J-S45028-14



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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J-S45028-14



        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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J-S45028-14



                                                                                   -

                   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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J-S45028-14



      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




                                    - 18 -
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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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J-S45028-14




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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J-S45028-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2014




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