Com. v. Romero

• Decision Date: 05 January 1999
• Citation: 722 A.2d 1014,555 Pa. 4
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Edwin Rios ROMERO, Appellant.
• Court: Pennsylvania Supreme Court

555 Pa. 4

722 A.2d 1014

COMMONWEALTH of Pennsylvania, Appellee, v. Edwin Rios ROMERO, Appellant.

Supreme Court of Pennsylvania.

Argued April 29, 1998.

Decided January 5, 1999.

Reargument Denied February 18, 1999.

Daylin B. Leach, Allentown, E. Romero.

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 four aggravating factors and no mitigating circumstances.¹ On April 17, 1996, the trial court formally imposed the death sentence. This direct appeal followed.² For the reasons presented herein, we affirm the judgment of sentence.

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. George Barbosa was also called as a Commonwealth witness. Prior to Appellant's trial, Barbosa had confessed to his role in the murder in statements made to Captain Anthony Bucarey of the Somerset County Prosecutor's Office. The confession was tape recorded by Captain Bucarey. In his confession, Barbosa also implicated Appellant, Lopez and Moreno in the planning and execution of Mr. Bolasky's murder. Barbosa specifically indicated that he and Appellant hid in the bathroom while Moreno brought Mr. Bolasky to the third floor apartment. According to Barbosa's statement, once Mr. Bolasky was inside, Appellant struck his head with a .22 pistol. Barbosa admitted that he attempted to break Mr. Bolasky's neck with a string. When this failed, however, Barbosa stated that he then put a towel around Mr. Bolasky's neck and took turns with Appellant and Lopez tightening the towel around his neck until he was dead. Barbosa stated that he and Appellant then wrapped Mr. Bolasky's body in bed sheets, carried it down the stairs, and placed the body in Mr. Bolasky's van. He, Lopez and Barbosa then drove to a desolate area of Lehigh County, dumped Mr. Bolasky's body and abandoned the van. Barbosa pled guilty and received a life sentence.

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 during his incarceration. Daniel Lopez recounted that Appellant told him that he had gone to Moreno's apartment and hid in the bathroom with another individual while they waited for Mr. Bolasky to arrive. Once Mr. Bolasky arrived, Appellant told Daniel Lopez that they took approximately $300.00 in cash that Mr. Bolasky was carrying. Mr. Bolasky was then struck in the head with a gun and strangled by placing and twisting a towel around his neck. According to Daniel Lopez's testimony, however, Appellant told him that he "did not agree with what was happening there." N.T., March 12, 1996, at 163. After Mr. Bolasky was dead, the conspirators searched him for additional valuables. Daniel Lopez further testified that Appellant reported to him that they then wrapped Mr. Bolasky's body in bed sheets and he and another carried the body down the stairs to Mr. Bolasky's van. Appellant told Daniel Lopez that he and the others then took the van and dumped Mr. Bolasky's body.

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 Court explained that hearsay concerns are virtually non-existent where an out-of-court declarant is a witness in a judicial proceeding. Id. at 130, 507 A.2d at 69. Appellant does not dispute that the first prong of Brady is satisfied. Barbosa's prior statement was tape-recorded and was therefore made under reliable circumstances. See Commonwealth v. Wilson, 550 Pa. 518, 707 A.2d 1114 (1998) (for purposes of Brady, verbatim account of prior inconsistent statement that is tape-recorded is made under highly reliable circumstances). In terms of the second prong, the trial court found that Barbosa, despite his refusal to testify either about his prior confession as it related to Appellant or about Appellant's involvement in the murder, was available for cross-examination because he had taken the stand at trial. Thus, the trial court found that his prior inconsistent statements were admissible under Brady. We disagree.

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 issue. 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 A...