J-S22021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




____________________________________________


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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