COMMONWEALTH of Pennsylvania, Appellee, v. Edwin Rios ROMERO, Appellant.
722 A.2d 1014
Supreme Court of Pennsylvania.
January 5, 1999
Reargument Denied February 18, 1999
Argued April 29, 1998.
Theodore R. Racines, Allentown, for Com.
Robert A. Graci, for Office of Atty. Gen.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
OPINION
NIGRO, Justice.
On March 19, 1996, a jury found Appellant Edwin Rios Romero guilty of the first degree murder of David Bolasky and related charges after a joint trial with co-defendant, George Lopez. Following a sentencing hearing, the jury returned a verdict of death against Appellant after finding
For purposes of this appeal, the record below establishes the following relevant facts. On January 3, 1995, David Bolasky, an Allentown architect, went to an Allentown apartment building which he owned in order to collect rent from his tenants. Mr. Bolasky was robbed and killed in the third floor apartment. His body was found on January 6, 1995, hog-tied and wrapped in bed sheets, in the woods along a secluded road in Allentown. Several weeks after the murder, the tenant of the third floor apartment, Miguel Moreno, made statements to the police implicating himself, George Lopez, George Barbosa and Appellant in the robbery and murder of Mr. Bolasky.
At trial, Moreno testified that he, Appellant, George Lopez and Barbosa devised a plan to rob and murder Mr. Bolasky, who was Moreno‘s landlord. Under the pretense that Moreno had rent money for Mr. Bolasky, Moreno brought Mr. Bolasky to his third floor apartment, where Appellant, Lopez and Barbosa were waiting for him. Moreno testified that he then left the apartment, at which time Mr. Bolasky was killed. A short time later, Moreno observed Appellant and Barbosa carrying Mr. Bolasky‘s body, tied and wrapped in bed sheets, down the stairs and placing the body in Mr. Bolasky‘s van. He testified that Lopez, Barbosa and Appellant then drove off and he went to clean up his apartment.
On the witness stand at trial, Barbosa testified that he was previously interviewed by Captain Bucarey and that he had told him that there were other people involved in the robbery and murder of Mr. Bolasky. However, while Barbosa did testify about the involvement of George Lopez and Moreno in the killing of Mr. Bolasky, he excluded any reference to Appellant‘s involvement and further refused to answer questions specifically regarding Appellant‘s involvement. In light of Barbosa‘s refusal to testify against Appellant, the Commonwealth was allowed, over defense objections, to call Captain Bucarey to the stand to read Barbosa‘s transcribed statements from the tape-recorded interview which explicitly implicated Appellant in the murder.
Also at trial, Daniel Lopez, Appellant‘s cellmate in Lehigh County Prison, testified that Appellant had admitted his involvement in the robbery and murder of Mr. Bolasky to him
In his single claim of error presented in this appeal, Appellant argues that the trial court erred in allowing Barbosa‘s prior statements from his interview with Captain Bucarey to be read into evidence because Barbosa was unavailable to be cross-examined on those prior statements. In rejecting Appellant‘s argument, the trial court found that the statements were properly admissible as substantive evidence under Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), and its progeny. Although we agree with Appellant that it was error for the trial court to admit Barbosa‘s prior statements against him, we find that such error was harmless. Accordingly, we affirm Appellant‘s judgment of sentence. See Commonwealth v. Shaw, 494 Pa. 364, 368 n. 1, 431 A.2d 897, 899 n. 1 (1981) (this Court may affirm decision of trial court if result is correct on any ground without regard to grounds which trial court itself relied upon).
In Brady, this Court held that the prior inconsistent statement of a non-party witness can be introduced as substantive evidence as long as 1) it is made under highly reliable circumstances and 2) the declarant is available for cross-examination at trial. Brady at 133, 507 A.2d at 71. The
This Court‘s analysis in Brady indicates that a prior inconsistent statement is not admissible as substantive evidence unless the declarant is not only available for cross-examination, but more pointedly, is available for cross-examination concerning the prior inconsistent statement at issuе. By having the declarant available to explain the discrepancies between his prior inconsistent statement and his testimony at trial to the jury, the danger that the prior inconsistent statement is too unreliable no longer exists. The Brady Court explained:
The availability of cross-examination at trial also assures a meaningful opportunity for the trier of fact to observe the declarant who has been called upon and sworn as a witness and questioned as to the discrepancy between the prior statement and the direct testimony. The trier of fact may bring to bear his or her sensory observations, experience, common sense and logic upon the witness to assess credibility and to determine the truth and accuracy of both the out-of-court declarations and the in-court testimony.
Brady at 129, 507 A.2d at 69 (emphasis added). In finding that the declarant‘s prior inconsistent statement in Brady was admissible as substantive evidence, this Court then stated:
Moreover, and more importantly, the declarant testified at trial and was extensively questioned by both the prosecutor and defense counsel as to the respective validity of each statement and as to the discrepancy between them. The jury had more than adequate opportunity to observe the witness’ demeanor, hear her testimony and explanations and assess her credibility.
Id. at 133, 507 A.2d at 71 (emphasis added). See also Commonwealth v. Wilson, 550 Pa. at 522, 707 A.2d at 1116 (Brady held that prior inconsistent statement was properly admitted as substantive evidence when it was rendered under highly reliable circumstances and the witness was subject to examination as to the validity of each statement). This safeguard was simply not available to Appellant under the circumstances of this case. On the stand at trial, Barbosa explicitly and repetitively refused to answer questions about the prior statement as it related to Appellant, even after he was held in contempt of court.3 In effect, Appellant was never given any meaningful opportunity to cross-examine Barbosa on the veracity of his custodial statement which implicated Appellant in the murder. Thus, we agree with Appellant that Barbosa, while present to testify at trial, was simply not available for
In addition to violating the mandate of Brady, Appellant correctly maintains that the admission of Barbosa‘s out-of-court statement violated his confrontation rights. Evidence admitted under a well-recognized exception to the hearsay rule and supported by sufficient indicia of reliability does not raise confrontation problems. Commonwealth v. Ransom, 446 Pa. 457, 461, 288 A.2d 762, 764 (1972). However, as in this case, whеre the evidence at issue does not satisfy an exception to the hearsay rule,4 confrontation rights are implicated. Id. at 464, 288 A.2d at 765. See also Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (when the prosecution seeks to introduce hearsay evidence which is not admissible under any firmly-rooted exception to the hearsay rule, it must show that the evidence has sufficient indicia of reliability to withstand scrutiny under the Confrontation Clause).
A similar claim was addressed in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). In Douglas, the defendant‘s accomplice, who had been tried previously, was called by the state to testify at the defendant‘s trial. When the accomplice refused to testify on Fifth Amendment grounds, the statе was permitted to read the accomplice‘s custodial confession, which expressly inculpated the defendant, to the jury during cross-examination. The state then called three police officers to identify the document as the custodial confession made and signed by the accomplice. In reviewing the defendant‘s conviction, the United States Supreme Court found that the indirect admission of the accomplice‘s out-of-court inculpatory statement violated the defendant‘s confrontation rights because the defendant had been unable to cross-examine the accomplice as to its truth. Id. at 419, 85 S.Ct. at 1077. The Court further stated that the opportunity to cross-examine the police officers was not adequate to redress the
Like the accomplice in Douglas, Barbosa refused to answer questions regarding the truth of his custodial statement as it related to Appellant‘s involvement in the murder of Mr. Bolasky. Thus, under the rationale of Douglas, it was error to admit Barbosa‘s extrajudicial statement, through the testimony of Captain Buсarey, as substantive evidence against Appellant. See also Commonwealth v. McDowell, 460 Pa. 474, 333 A.2d 872 (1975) (police officer‘s reading of non-testifying accomplice‘s confession, which explicitly implicated defendant, was inadmissible hearsay and violated defendant‘s right of confrontation); Commonwealth v. Ransom, 446 Pa. 457, 288 A.2d 762 (1972) (admission, through testimony of police officer, of accomplices’ custodial statements implicating defendant, where accomplices were tried separately from defendant and did not testify at defendant‘s trial, violated defendant‘s confrontation rights under Douglas); U.S. v. Gomez-Lemos, 939 F.2d 326 (6th Cir.1990) (introduction of co-defendant‘s prior testimony implicating defendant violated defendant‘s right of confrontation where co-defendant, who pled guilty prior to defendant‘s trial, refused to testify about defendant‘s involvement in crime on Fifth Amendment grounds).5
Here, we find that the evidence of Appellant‘s involvement in the murder thаt was extracted from the erroneous admission of Barbosa‘s statements was merely cumulative of other, properly admitted evidence indicating his guilt. Moreno testified that when he brought Mr. Bolasky to his third floor apartment, George Lopez, Barbosa and Appellant, as planned, were in the apartment, waiting for Mr. Bolasky‘s arrival. A short time later, Moreno then saw Barbosa and Appellant carrying Mr. Bolasky‘s body, wrapped in bed sheets, down from his apartment. Moreover, Daniel Lopez, Appellant‘s cellmate, testifiеd that Appellant had confessed to him that he was waiting for Mr. Bolasky in Moreno‘s apartment with others and that, once he arrived, Mr. Bolasky was assaulted, robbed and strangled by ligature. Given both Moreno‘s and Daniel Lopez‘s properly admitted testimony, which also clearly
Although we find that Appellant‘s sole issue raised on appeal fails to provide him with a basis for relief, our review of Appellant‘s verdict and death sentence does not end with the disposition of his claim. While Appellant does not challenge the sufficiency of the evidence, this Court is required in all cases in which a death sentence has been imposed to independently review the record to determine whether the Commonwealth has established the еlements necessary to sustain a conviction for first-degree murder. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983).
After reviewing the record, we find that there was sufficient evidence from which the jury could have found each element of an intentional killing beyond a reasonable doubt. See
Having concluded that Appellant‘s conviction for first degree murder was proper, we are statutorily required to perform an automatic review of his sentence of death. Pursuant to this review, we must affirm the sentence of death unless we determine that:
- the sentence of death was the product of passion, prejudice or any other arbitrary factor;
- the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or
- the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record оf the defendant.
Upon careful review of the record, we conclude that the sentence of death was not the product of passion, prejudice or any other arbitrary factor, but rather was based upon the evidence that Appellant participated in the planning and execution of the premeditated killing of Mr. Bolasky during the robbery. We also conclude that the evidence was sufficient to support the finding of at least one aggravating factor, that Appellant has a significant history of felony convictions involving the use or threat of violence against the person pursuant to
Accordingly, we affirm the verdict and sentence of death.10
Justice SAYLOR files a Concurring Opinion in which Chief Justice FLAHERTY joins.
SAYLOR, Justice, concurring.
I respectfully disagree with the majority‘s conclusion that prosecution witness George Barbosa was not available for cross-еxamination by Romero‘s counsel. In this regard, I note that Barbosa‘s refusals to answer questions occurred during his direct examination by the Commonwealth. On cross-examination, however, Barbosa provided answers which, although punctuated by equivocations and memory lapses, were generally responsive to the questions posed by defense counsel. Indeed, Romero‘s counsel was able to elicit helpful testimony from Barbosa that suggested a motive for fabricating his prior inculpatory statement (Barbosa testified that рolice had told him that Romero had implicated him in the murder). Accordingly, I would hold that Romero‘s rights under the confrontation clause were not violated, and that the admission
Thus, I would not reach the difficult question of whether, for purposes of a harmless error analysis, evidence of an inculpatory eyewitness statement is merely cumulative of the testimony of others, none of whom was an eyewitness to the crime, particularly where such testimony is that of a co-conspirator and a jailhouse informant.
Chief Justice FLAHERTY joins this Concurring Opinion.
Notes
Q: The involvement of Edwin Riоs Romero in the murder of David Bolasky, what did you tell Mr. Bucarey?
A: I don‘t expect to answer any question that has to do with the involvement of Mr. Romero.
N.T., March 15, 1996, at 56. See also id. at 58-59 (again refusing to testify about Appellant‘s involvement or the prior statement implicating Appellant). After Barbosa consulted with his attorney, Barbosa‘s attorney stated to the court:The problem, [Barbosa] is not going to testify against Romero. Any question that‘s going to be asked about Romero, he just told me specifically that he is not going to say anything or answer anything concerning Mr. Romero. He doesn‘t have to worry about contempt of court. I‘m sorry, your Honor. I mean you can‘t get anything worse from this court. He has no fear of punishment and he will not testify and he has his own reasons not to do that... I spoke with my client and he made it very clear on that, he is not going to say anything and he‘s not going to make any statement against Mr. Romero or answer any questions against Mr. Romero.
Id. at 63-64.