Opinion
J-S37004-16 No. 237 WDA 2015
07-07-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. MICHAEL J. DUNCAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 2, 2012
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0000357-2011 BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Michael J. Duncan, appeals nunc pro tunc from the judgment of sentence entered in the Washington County Court of Common Pleas, following his jury trial convictions for first-degree murder and criminal conspiracy. We affirm.
18 Pa.C.S.A. §§ 2502(a), 903, respectively.
This Court previously set forth the relevant facts of this case as follows:
John Lynn Newman [("Victim")] was shot to death on February 3, 2003, in California, Pennsylvania. On January 24, 2012, a jury found that [Victim's] death was the result of a conspiracy and/or solicitation between John Ira Bronson, Jr. [("Codefendant") and Appellant]. Any complete summary of the facts for the intervening nine
years must begin with the circumstances that led to this conspiracy and/or solicitation.
In 2002, [Victim] was approached by the PSP [(Pennsylvania State Police)] and informed "that he had been investigated and [that] felony drug charges against him [were] pending." In October of that year, Trooper Aaron Borello ("Trooper Borello") approached [Victim] about becoming a confidential informant ("CI") for the PSP. Trooper Borello and [Victim] then set about performing a buy/bust involving [Victim's] supplier, [Codefendant]. After [Codefendant] was observed selling 200 pills of Oxycodone to [Victim], [Codefendant] was arrested. The PSP searched [Codefendant's] home and found about $384,000 in cash which was seized.1
1 [Codefendant] eventually pled guilty to [federal charges of] drug trafficking and was incarcerated.
After his arrest, [Codefendant] began acting as a C.I., first with the PSP and then for the [FBI]. While working with the PSP, [Codefendant] asked Trooper Borello directly if it was [Victim] who had informed on him. Unfortunately, [Codefendant's] participation as a C.I. was fruitless and ended "within a week" prior to [Victim's] death.
At some point after [Codefendant's] arrest, [Appellant] spoke with his associate, Howard Irwin ("Irwin"), about another man, "[Michael] Bowman [("Bowman"),] having some type of hookup where he [could] make some money...taking care of [an unnamed] snitch." Irwin then witnessed, at his home, a meeting between [Appellant], [Codefendant], and Bowman, a drug dealer and associate of [Codefendant]. During the meeting, [Codefendant] asked [Appellant] to kill [Victim] and [Appellant] agreed. [Codefendant] asked Bowman to cooperate in the killing, but Bowman declined.
Prior to [Victim's] death, Robert Bedner ("Bedner") called Brian Dzurco ("Dzurco"). Phone records revealed that the call occurred on January 20, 2003, about two weeks before the death of [Victim]. Bedner put [Codefendant] on the phone with Dzurco[.] [Codefendant] asked Dzurco to set up a meeting with [Victim]. Dzurco agreed because he
believed the matter to be related to a drug debt. After receiving information that the meeting might be fatal for [Victim], Dzurco chose not to arrange it. Shawn Geletei ("Geletei") testified that, while in jail, [Appellant] approached him and bragged about his intention to murder [Victim]. He recalled that the conversation was prior to [Victim's] death. Geletei specifically testified:
[Appellant] come over and asked if I knew [Victim]. I said, yeah. He says, I'm going to take his ass out. And he started saying something about [Codefendant] and drugs and all this. I said, I'm only in here [in jail] for child support, I don't want to get involved in this. And he kept on running his mouth saying about him being a monster and taking people out before and all this.
Through phone records and witness testimony, the following timeline of February 3, 2003, being the day of the killing, was revealed:
At 7:32 p.m.[,] a call was made from [Victim's] cell phone to Brian Horner ("Horner"), which lasted 3 minutes and 19 seconds. Sometime before 8:00 p.m.[,] [Victim] asked his wife for $300.00, ostensibly for cartons of cigarettes, but was, most likely, to buy heroin. At 7:56 p.m.[,] a call was made from [Victim's] cell phone to Horner, which lasted 1 minute and 9 seconds. Sometime after receiving the money, [Victim] left the house. He met Geletei in the alley between their houses to discuss acquiring Oxycodone. Geletei told [Victim] that he could not locate any Oxycodone. [Victim] told Geletei that he was going to meet Horner.
Upon returning home, [Victim] informed his wife that Horner needed a ride and he left again. At 8:08 p.m.[,] [Victim] called a drug client named Amelia Pajerski ("Pajerski"). At approximately 8:30 p.m.[,] [Victim] sold Pajerski stamp bags of heroin. He told Pajerski that the heroin was from Horner. Pajerski specifically recalled being home in time to watch a favorite show by 9:05 p.m. At approximately 9:00 p.m.[,] [Victim's] daughter heard the distinctive sound of her father's car pass by their house. At 9:03 p.m.[,] [Victim] called Geletei's landline,
which lasted for 6 seconds. Thereafter, [Victim] was killed by a bullet fired at close range while he was sitting in his car, which was parked down the street from his home.
Next, the record reveals the events of February 4, 2003, as follows: Early in the morning, [Victim's] daughter noticed his car parked down the street from their house. She observed her father inside the car, but the car door was locked. Upon returning to the car with Mrs. Newman, they found [Victim] dead and contacted the authorities. The police searched the scene and located a spent bullet casing inside the car, and an unfired cartridge outside of the vehicle. [Victim] had $115.00 in cash, a marijuana "roach", a cell phone, and ten packets of heroin. Around 12:00 p.m.[,] Ryan Givens called [Appellant] to inform him that [Victim] had been killed, to which [Appellant] responded, "snitches get dealt with." The authorities took Horner in for questioning and tested his hands for gunshot residue. The results allowed the tester to state "that [Horner] could have fired a gun, could have come in contact with something that had gunshot primer residue on it," or "that [Horner] was in very close proximity to a firearm when it was discharged."
It took several years for charges to be filed in this "cold case[."] The relevant events of the years are summarized herein:
In March, 2003, Irwin asked [Appellant] to wire money to him while on vacation. The money, being $931.00, was transferred on March 10, 2003. Also in early March, [Appellant] appeared early one morning at the home of his drug associate, Gerald Hull ("Hull"). Hull's home was used to cook and store crack cocaine. [Appellant] opened a safe located within the Hull residence, to which only he and Irwin had access. At that time, [Appellant] was heard making a call. The exact nature of the call was unclear. However, Hull, who was admittedly high on crack at the time, recalled hearing [Appellant] speak about shooting someone. [Appellant], who appeared "giddy, nervous, [and] agitated," pointed a gun in Hull's face before leaving. When Irwin later returned from vacation, he discovered that [Appellant] had "disappeared[."] Irwin f[ound] that the safe had been emptied. The safe's contents, being
money, drugs and a nine millimeter (9 mm) pistol, were missing, and only a cell phone was left behind.
In April of 2003, while on furlough, Bowman spoke with [Appellant], who told Bowman that he killed [Victim], and explained the manner in which he did it. [Appellant] told Bowman that he was in the rear of [Victim's] car and shot him in the left ear. Between April and June of 2003, Bowman had a three-way call with a woman and [Appellant]. Again, [Appellant] admitted that he killed [Victim].2
2 The [trial court] notes that the testimony regarding this call was elicited from Bowman on cross-examination. Defense counsel asked Bowman "you are saying...that [Appellant] made a three-way call in a recorded jail call where he goes, yeah, that's right, I killed that guy; is that what you are saying to the jury?" Bowman answered "That's exactly what l'm telling the jury."
In September of 2003, PSP Trooper James Monkelis ("Trooper Monkelis") and Trooper Beverly Ashton ("Trooper Ashton") interviewed [Appellant]. [Appellant] denied having ever been in California, PA, and denied knowing [Victim]. When told of [Victim's] death, [Appellant] said that he did not "whack" him, despite not being told the nature of [Victim's] death.3 [Appellant] also identified [Victim] as a snitch. [Victim's] role as a C.I. had not been released to the public. [Appellant] made other inculpatory statements, such as:
1. Stating that "hypothetically" someone, implying [Victim], owed someone else, implying [Codefendant], a lot of money.
2. Stating that he could not do the time and worrying that he would rather not be ["]45, 46 or 46, 47 at the clubs."
3. In response to the interviewer stating that it might have been self-defense, [Appellant] stated "come on, man, you seen that crime scene, it couldn't have been self[-]defense."4
3 The [trial court] notes that it was public knowledge that [Victim] had been killed.
4 The [trial court] notes that no crime scene photos had been released at the time of the interview.
In late 2003, a former corrections officer, Eric DeLong ("DeLong"), encountered [Appellant] in a bar. DeLong overheard [Appellant] state, "yeah, I popped that guy in the back of the head [in] California." A few days later, DeLong reported this incident to the PSP, who put him in touch with the FBI. Despite this report, DeLong "didn't hear anything for, approximately, seven years." Approximately two and a half years after Irwin first discovered that [Appellant] had fled California, PA, he finally spoke to [Appellant]. When Irwin asked [Appellant] why he had left California, PA, [Appellant] gave his reasons, admitting to killing [Victim] and also to Horner's involvement. [Appellant] told Irwin that "Brian Horner was running [Appellant's] name about being involved in the homicide and [Horner] was actually the one that...brought [Victim] out [of] the house and...brought him to the car. And [Appellant] was in the car and [Appellant] whacked [Victim]." [Appellant] went on to tell Irwin that he "whacked," or killed, [Victim] because he was a "snitch".
In January 2011, [Appellant] was arrested in Amherst, Ohio. He was interviewed again by Trooper Monkelis[,] and again made inculpatory statements. [Appellant] stated that "snitches get dealt with." He stated that "he never owned or carried that caliber of a weapon."5 After the interview, [Appellant] was transported back to Pennsylvania. [Appellant], while en route, spoke in further detail about his views on snitches, saying that even "God doesn't like snitches."
In August of 2011, [Codefendant] was housed in the Washington County Correctional Facility ("WCCF") in connection with being charged in this case. In December of 2011, [Codefendant] admitted to Michael McCarthy, a fellow inmate, that he attended the 2002 meeting...at Irwin's house. [Codefendant] admitted that the meeting concerned "offing[,"] or killing, [Victim]. McCarthy then reported the conversation to the authorities.
Commonwealth v. Duncan , No. 541 WDA 2012, unpublished memorandum at 1-6 (Pa.Super. filed October 30, 2014).5 The [trial court] notes that the caliber of the weapon [had not been] released.
On January 13, 2011, the Commonwealth charged Appellant, Codefendant, and Howard Irwin with first-degree murder and criminal conspiracy. The Commonwealth filed a motion to consolidate the three cases, which the trial court granted. On September 22, 2011, Appellant filed two motions to suppress out-of-court statements, which the court granted in part and denied in part on November 2, 2011. On December 19, 2011, the Commonwealth filed a motion in limine seeking to restrict Appellant's cross-examination of certain witnesses, which the court granted on December 29, 2011. On January 24, 2012, a jury convicted Appellant of first-degree murder and conspiracy. The court sentenced Appellant on March 2, 2012, to life imprisonment for first-degree murder, plus a consecutive term of fifteen (15) to thirty (30) years' incarceration for conspiracy. Appellant timely appealed, and this Court affirmed the judgment of sentence on waiver grounds because Appellant's court-ordered Pa.R.A.P. 1925(b) statement was insufficiently concise. See id. On December 3, 2014, Appellant pro se filed a timely petition under the Post Conviction Relief Act ("PCRA"). The PCRA court appointed counsel, who filed an amended petition seeking restoration of Appellant's direct appeal rights nunc pro tunc. The court granted the requested relief on January 30, 2015. On February 6, 2015, Appellant filed a timely notice of appeal nunc pro tunc. On that same date, the court ordered Appellant to file a Rule 1925(b) statement. After the court granted two extensions, Appellant timely complied.
Howard Irwin subsequently entered a guilty plea.
Appellant raises the following issues for our review, which we have reordered for ease of disposition:
I. WHETHER THE TRIAL COURT ERRED WHEN IT STATED THAT THE SUPERIOR COURT HAD PREVIOUSLY ADDRESSED THE MAJORITY OF APPELLANT'S CLAIMS ON APPEAL?
II. WHETHER THE TRIAL COURT ERRED WHEN...APPELLANT WAS NOT PERMITTED TO TESTIFY TO ALIBI EVIDENCE DURING HIS DIRECT EXAMINATION?
III. WHETHER THE TRIAL COURT ERRED IN GRANTING THE COMMONWEALTH'S MOTION IN LIMINE?
IV. WHETHER THE COMMONWEALTH COMMITTED MISCONDUCT WHEN IT FAILED TO PRODUCE AND DESTROYED THE VICTIM'S CONFIDENTIAL INFORMANT FILE?(Appellant's Brief at 5).
V. WHETHER THE VERDICTS OF GUILTY WERE AGAINST THE WEIGHT OF THE EVIDENCE?
VI. WHETHER THE TRIAL COURT ERRED WHEN IT DISCOVERED THAT A JUROR HAD OUTSIDE COMMUNICATION WITH AN ATTORNEY REGARDING THE TRIAL?
VII. WHETHER THE EVIDENCE PRESENTED WAS SUFFICIENT TO CONVICT...APPELLANT OF CRIMINAL HOMICIDE AND CONSPIRACY?
VIII. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTIONS TO SUPPRESS?
IX. WHETHER THE COMMONWEALTH COMMITTED MISCONDUCT WHEN IT FAILED TO DISCLOSE TO THE JURY THAT A WITNESS WAS OFFERED IMMUNITY TO PROSECUTION IN EXCHANGE FOR HIS TESTIMONY?
X. WHETHER THE TRIAL COURT ERRED IN GRANTING THE COMMONWEALTH'S MOTION TO JOIN/CONSOLIDATE [APPELLANT'S] TRIAL WITH...CO-DEFENDANT?
In Appellant's first appeal, this Court determined Appellant had waived all issues because prior appellate counsel had filed an excessively long and vague Rule 1925(b) statement. The PCRA court then reinstated Appellant's direct appeal rights nunc pro tunc based on prior counsel's ineffective assistance with respect to his failure to file a proper Rule 1925(b) statement. Under these circumstances, where Appellant was effectively deprived of his right to a direct appeal, this Court's previous disposition does not preclude merits review of any claims Appellant raises in the instant appeal. See Commonwealth v. Halley , 582 Pa. 164, 870 A.2d 795 (2005) (stating duplicative review is permissible following reinstatement of defendant's direct appeal rights nunc pro tunc on ground that counsel was ineffective for failing to perfect direct appeal). Thus, we dispose of Appellant's first issue.
In his second issue, Appellant argues his personal testimony regarding his whereabouts on the night of the murder was admissible despite his failure to file a notice of intent to present an alibi defense pursuant to Pa.R.Crim.P. 567. Appellant contends the lack of Rule 567 notice would justify exclusion only of alibi evidence other than Appellant's own testimony. Appellant concludes the trial court's exclusion of his alibi testimony was highly prejudicial and warrants a new trial. We cannot agree.
"The admission or exclusion of evidence is within the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion." Commonwealth v. Rosarius , 771 A.2d 29, 32 (Pa.Super. 2001). An alibi is "a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party." Commonwealth v. Kolenda , 544 Pa. 426, 431, 676 A.2d 1187, 1190 (1996). Pennsylvania Rule of Criminal Procedure 567 states in relevant part:
Rule 567. Notice of Alibi Defense
(A) Notice by Defendant. A defendant who intends to offer the defense of alibi at trial shall file with the clerk of courts not later than the time required for filing the omnibus pretrial motion provided in Rule 579 a notice specifying an intention to offer an alibi defense, and shall serve a copy of the notice and a certificate of service on the attorney for the Commonwealth.
(1) The notice and a certificate of service shall be signed by the attorney for the defendant, or the defendant if unrepresented.
(2) The notice shall contain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses whom the defendant intends to call in support of the claim.
(B) Failure to File Notice.
(1) If the defendant fails to file and serve the notice of alibi as required by this rule, the court may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the
defendant, may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.Pa.R.Crim.P. 567 (emphasis added). "Although an alibi defense is generally presented with accompanying alibi witnesses or other evidence placing the defendant at a place other than the scene of the crime at the time of its commission, the testimony of the accused may, by itself, be sufficient to raise an alibi defense and entitle him to an appropriate jury instruction." Commonwealth v. Pounds , 490 Pa. 621, 631-32, 417 A.2d 597, 602 (1980). Where an alibi defense is raised and counsel requests the relevant jury instruction, "The strength of the Commonwealth's case does not render the absence of an instruction harmless error." Commonwealth v. Kolenda , 544 Pa. 426, 432, 676 A.2d 1187, 1190 (1996).
* * *
Instantly, Appellant testified at trial in his own defense. Defense counsel asked Appellant where he was on the night Victim was killed. Appellant said he went to a strip club. When defense counsel asked Appellant what time he went there, the Commonwealth objected and the following exchange occurred at sidebar:
[COMMONWEALTH]: We had no notice of alibi in this case. The date of death has been in discovery and known since 2003. We cannot get into this. It's improper. It's impermissible, frankly. We can't do it.
[DEFENSE COUNSEL]: Just to talk about whether he was [at the strip club] that evening is not impermissible.
THE COURT: You already said that he was at some strip club. I still don't know the name of it.(N.T. Trial, 1/23/12, at 1845-46). Shortly thereafter, defense counsel again elicited testimony from Appellant regarding his whereabouts on the night of the homicide. Appellant testified that he went to Gerald Hull's house "between 3:00 [a.m.] and 4:00 [a.m.] or 4:30 [a.m.]" Id. at 1850. Appellant further stated: "I had stopped at Denny's to get something to eat after I left the strip club, Denny's in Belle Vernon. I left the strip [club] around 2:00, 2:30 in the morning, so it had to be around 4:00 [a.m.]" Id. The Commonwealth again objected to Appellant's alibi testimony, based on lack of Rule 567 notice, and requested a cautionary instruction. At sidebar, the following discussion took place:
[DEFENSE COUNSEL]: Filly Corral.
THE COURT: Where is that?
[COMMONWEALTH]: It's in New Stanton.
THE COURT: I don't know. I never heard of that. You can't go any further on that subject.
[DEFENSE COUNSEL]: We will move ahead.
THE COURT: You can't go any further without notice.
[DEFENSE COUNSEL]: We will move ahead.
[COMMONWEALTH]: My objection still stands.
[DEFENSE COUNSEL]: I understand what [the Commonwealth] is saying.
[COMMONWEALTH]: You just gave [Appellant] an alibi for the entire --
[DEFENSE COUNSEL]: Who should I respond to first?
THE COURT: And then where after Denny's?
[COMMONWEALTH]: Gerald Hull's.
THE COURT: I took it to mean that the Commonwealth was complaining, as they did earlier object, that you were trying to get in an alibi defense.
[COMMONWEALTH]: We are.
[DEFENSE COUNSEL]: It's not - it's a time.
[COMMONWEALTH]: [Defense counsel], you have just alibied him out for the time of the homicide.
[DEFENSE COUNSEL]: Absolutely not.
[COMMONWEALTH]: Are you kidding me? Are you kidding me?
THE COURT: You are trying to get an alibi defense in through the back door without a notice.
[DEFENSE COUNSEL]: We did not. I'm asking - the question was did he go to Gerald Hull's house that evening.
THE COURT: He should have just answered yes.
[DEFENSE COUNSEL]: He answered what he answered.
THE COURT: What he answered provided an alibi for certain times that are important as to --
[DEFENSE COUNSEL]: I understand what you are saying. We will move ahead.
THE COURT: And you didn't put on a notice
of an alibi.
[DEFENSE COUNSEL]: Absolutely right. Absolutely right.
THE COURT: Had you done so, you would have been permitted to present this testimony, but [the] Commonwealth would have had notice and they could have done interviews and investigations.
[COMMONWEALTH]: Just moving ahead is not good enough. The Commonwealth believes that a cautionary instruction should be given.
THE COURT: What cautionary instruction are you requesting?
[COMMONWEALTH]: [Appellant's] testimony should be stricken and not considered.
THE COURT: I'm not going to repeat that testimony because we have all heard it differently.
[DEFENSE COUNSEL]: If the [c]ourt feels it's sustainable, I have no problem with you sustaining the objection.
THE COURT: I sustained it. But they are going one step beyond that. They want a cautionary instruction.
[DEFENSE COUNSEL]: It can be stricken.
THE COURT: That's part of a cautionary instruction. [Appellant's] response or answer to the last question regarding his whereabouts on --
[DEFENSE COUNSEL]: At 4:30.
[COMMONWEALTH]: February 3rd into February 4th.
[DEFENSE COUNSEL]: I think the theory is [the homicide] happened at 9:00 or 9:30. This is hours, hours, hours and they can cross-examine on him.
THE COURT: I don't know what time he went to the strip joint, whatever you call these places.Id. at 1852-54. The Commonwealth objected to Appellant's testimony on the ground that Appellant failed to file Rule 567 notice of an alibi defense. In response to the Commonwealth's objection, defense counsel did not claim Appellant's testimony was admissible under the Rule 567(B)(1) exception regarding a defendant's personal alibi testimony. Instead, defense counsel asserted the testimony was not alibi evidence per se because it did not necessarily cover the time of the homicide. On appeal, Appellant changes course and attempts to characterize the testimony as alibi evidence to take advantage of the Rule 567 exception. Appellant's failure at trial to raise the admissibility of his testimony under that exception, however, constitutes waiver of the issue on appeal. See Pa.R.A.P. 302(a) (stating issues not raised in trial court are waived and cannot be raised for first time on appeal); Commonwealth v. York , 465 A.2d 1028, 1032 (Pa.Super. 1983) (stating new and different theory of relief may not be successfully advanced for first time on appeal). Moreover, defense counsel at one point stated he had "no problem" with the court sustaining the objection and conceded the testimony could be stricken, which arguably provides an additional basis for waiver. Therefore, we decline to address Appellant's second issue on waiver grounds.
[DEFENSE COUNSEL]: This answer is absolutely part of their theory in their case. It's seven, eight hours.
THE COURT: You haven't laid that foundation, [defense counsel].
[COMMONWEALTH]: Let's be 100 percent up front. Your client just said that the prior evening, which stands to reason that means sometime before midnight.
[DEFENSE COUNSEL]: No, it doesn't.
[COMMONWEALTH]: He was at this strip club and went to Denny's and then to Gerald Hull's house. If you knew that's where he was, then you were required to file a notice of alibi. This date was a date certain from the very moment you took this case. And furthermore, saying that we can cross-examine him on this is disingenuous because that then gets an alibi defense even more -
[DEFENSE COUNSEL]: I'm not trying to be disingenuous. I'm simply putting my response on the record. That's it. That's all I want to do. You make a ruling.
In his third issue, Appellant argues the court should have permitted him to cross-examine the Commonwealth's police witnesses regarding the names of individuals other than Codefendant whom Victim might have informed on in his capacity as a CI. Appellant asserts that line of questioning could have affected the jury's evaluation of the officers' credibility and exposed other people with a motive to kill Victim. Appellant concludes the court's grant of the Commonwealth's motion in limine restricting Appellant's cross-examination in this regard was improper and warrants a new trial. We disagree.
"Generally, a trial court's decision to grant or deny a motion in limine is subject to an evidentiary abuse of discretion standard of review." Commonwealth v. Reese , 31 A.3d 708, 715 (Pa.Super. 2011) (en banc). Evidence that someone other than the defendant might have committed the charged crime is admissible. Commonwealth v. Rivers , 537 Pa. 394, 405, 644 A.2d 710, 715 (1994). Nevertheless, "Merely suggesting that someone else may have had a motive is not evidence." Id. (holding trial court properly prevented defense counsel, during cross-examination of detective, from eliciting inference that another individual had been suspect in investigation, absent evidence to support that inference).
Instantly, the Commonwealth filed a pretrial motion in limine to prohibit Appellant from cross-examining law enforcement officers regarding the names of people other than Codefendant who might have been a target of Victim's work as a CI. The court granted the motion based on Appellant's lack of supporting evidence for his theory that Victim informed on other individuals who were aware of Victim's cooperation with police and had a motive to kill Victim. In other words, the proposed cross-examination would be just a fishing expedition. The court's order made clear that Appellant was permitted to present evidence that a specific someone else had committed the homicide. Therefore, the court properly exercised its discretion when it granted the Commonwealth's motion in limine. See id .; Reese , supra.
In his fourth issue, Appellant argues the PSP's eradication of Victim's CI file constituted a bad faith destruction of potentially useful defense evidence. Appellant contends the information in the file was central to the Commonwealth's theory that Codefendant approached Appellant to carry out an execution of Victim because Victim had informed on Codefendant. Appellant asserts the file would have revealed whether Victim had provided information on other individuals involved in the drug trade. Appellant claims the PSP should have deviated from its record destruction protocol in light of the ongoing investigation into Victim's death. Appellant concludes the destruction of Victim's CI file violated Appellant's due process rights. We cannot agree.
"Under Brady and subsequent decisional law, a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature." Commonwealth v. Roney , 622 Pa. 1, 22, 79 A.3d 595, 607 (2013). "To establish a Brady violation, an appellant must prove three elements: (1) the evidence at issue was favorable to the accused, either because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued." Id. When the Commonwealth fails to preserve "potentially useful" evidence, as opposed to materially exculpatory evidence, no due process violation occurs unless the defendant can prove the Commonwealth acted in bad faith. Commonwealth v. Chamberlain , 612 Pa. 107, 30 A.3d 381 (2011). "Potentially useful evidence is that of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." Id. at 143, 30 A.3d at 402.
Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Instantly, Codefendant filed a pretrial motion to compel production of Victim's CI file. The court denied the motion as moot because the PSP had purged the file in 2009. There is no indication in the certified record that Appellant joined in Codefendant's motion. Further, that motion merely sought production of the CI file. Appellant was aware during trial that the police had maintained a file pertaining to Victim's work as a CI. Yet, Appellant fails to cite any part of the record where he raised a Brady or due process claim in connection with the PSP's destruction of the file. Therefore, Appellant waived his due process challenge on appeal. See Pa.R.A.P. 302(a).
Moreover, Appellant concedes the information in the file was "potentially useful" at best, which required a showing of bad faith on the part of the police. See Chamberlain , supra. In its initial Rule 1925(a) opinion, the trial court reasoned:
Presuming that [Appellant] adopted [Codefendant's] Petition, [Appellant] still did not raise bad faith on the part of the Commonwealth. The [t]rial [c]ourt found by its December 27, 2011 Order that "the Commonwealth indicated that the [PSP], following standard state police practice regarding a person's confidential informant file, purged [Victim's] confidential informant file in 2009 (following a five (5) years requirement to maintain this type of file)[.]" As the PSP destroyed this file two years prior to the filing of charges in this case and pursuant to a
standard document retention policy, the [c]ourt cannot characterize the Commonwealth's failure to preserve the evidence as being done in bad faith.(Trial Court Opinion, filed June 6, 2013, at 30). Consequently, even if Appellant had preserved the issue, we would accept the trial court's bad faith analysis and conclude Appellant's due process challenge merits no relief.
In his fifth issue, Appellant argues the Commonwealth failed to produce any physical evidence linking him to the murder. Appellant contends the Commonwealth relied on circumstantial evidence, including testimony from witnesses who were high on drugs or inside a loud club. Appellant asserts the Commonwealth failed to show any evidence of a conspiratorial agreement between Appellant and Codefendant outside of a single alleged meeting. Appellant concludes the verdict was against the weight of the evidence. We cannot agree.
Generally, an appellant must preserve a weight of the evidence challenge by filing a motion in the trial court:
Rule 607. Challenges to the Weight of the EvidencePa.R.Crim.P. 607(A). "As noted in the comment to Rule 607, the purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived." Commonwealth v. Gillard , 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal denied, 581 Pa. 672, 863 A.2d 1143 (2004). A claim challenging the weight of the evidence cannot be raised for the first time in a Rule 1925(b) statement. Commonwealth v. Burkett , 830 A.2d 1034 (Pa.Super. 2003). An appellant's failure to avail himself of any of the prescribed methods for presenting a weight of the evidence issue to the trial court constitutes waiver of that claim, even if the trial court responds to the claim in its Rule 1925(a) opinion. Id.
(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Instantly, Appellant failed to raise his weight claim at sentencing or in a post-sentence motion. Instead, Appellant raised his weight claim for the first time in his Rule 1925(b) statement in his initial appeal. Therefore, Appellant waived his challenge to the weight of the evidence. See id.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Gary M. Gilman and the Honorable Debbie O'Dell-Seneca, we conclude Appellant's remaining issues merit no relief. The trial court opinions comprehensively discuss and properly dispose of those questions. ( See Trial Court Opinion, filed September 2, 2015, at 10-13, 18-19; Trial Court Opinion, filed June 6, 2013, at 14-18, 20-23, 47-48 (incorporating in part Order of Court, filed November 2, 2011)) (finding: (6) attorney, who was not involved in case and who knew juror, approached juror and asked whether he was serving on case; juror replied that he could not discuss it and walked away; attorney disclosed to Codefendant's counsel that juror was involved in county politics and had supported Washington County district attorney's campaign in 2011; all attorneys agreed juror's politics had no bearing on whether he should be removed; parties reached consensus that there were no grounds to remove juror; (7) Commonwealth witnesses' testimony established Codefendant set up meeting in Mr. Irwin's home, where Appellant agreed to kill Victim at Codefendant's request; while in jail, Appellant told fellow inmate of plan to kill Victim; evidence established Appellant willfully and deliberately shot and killed Victim; numerous witnesses testified that Appellant admitted killing Victim; when viewed in light most favorable to Commonwealth, evidence was sufficient to convict Appellant of first-degree murder and conspiracy; (8) prior to police interviews on September 24, 2003 and January 14, 2011, officers orally read Miranda warnings to Appellant; in each instance, Appellant refused to sign written waiver form but orally agreed to waive his Miranda rights and speak to police; Appellant's oral waivers were sufficient; during second interview, police ceased all questioning immediately when Appellant requested attorney; Appellant voluntarily initiated subsequent conversation with police mostly on subjects unrelated to murder investigation; court suppressed Appellant's response to officer's question during that conversation on whether Victim deserved to die; all of Appellant's other statements were admissible; (9) prosecution offered Michael Bowman immunity in exchange for his testimony at Appellant's trial; disclosure of immunity agreement to jury would have been favorable to Appellant; nevertheless, there is no indication Commonwealth suppressed or withheld evidence of agreement; existence of agreement was apparent on face of grand jury transcript; defense counsel received copy of grand jury transcript before trial and repeatedly referred to it during cross-examination of Mr. Bowman; therefore, Appellant had equal access to allegedly withheld information and no Brady violation occurred; (10) Appellant and Codefendant were alleged to have participated in same series of acts or transactions constituting charged offenses; both were charged with conspiracy; evidence was not so complex as to render jury incapable of separating evidence as it applied solely to one defendant versus Appellant and Codefendant collectively; evidence and testimony was extensive but it all pointed toward Commonwealth's simple theory of case, i.e., Codefendant had Appellant kill Victim in retaliation for Victim's cooperation with police as CI, which resulted in Codefendant's arrest; all evidence of solicitation was presented as to Codefendant; all evidence of shooting was presented as to Appellant; evidence of conspiracy was presented as to both Appellant and Codefendant; Appellant failed to establish he was prejudiced by consolidation of cases). Therefore, we affirm Appellant's issues six through ten on the basis of the trial court opinions. Based on the foregoing, Appellant is not entitled to relief on any of his issues on appeal. Accordingly, we affirm.
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
To the extent Appellant complains he did not receive a copy of the immunity agreement itself, that document was duplicative of the evidence Appellant possessed regarding the existence of the agreement, i.e., the grand jury transcript. See Commonwealth v. Lambert , 584 Pa. 461, 474, 884 A.2d 848, 856 (2005) (holding no Brady violation occurred where Commonwealth did not disclose police activity sheet indicating witness had changed his story after he failed polygraph examination, because that information was reflected in other evidence turned over by Commonwealth during pretrial discovery).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/7/2016
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