# Com. v. Duncan, M. > Superior Court of Pennsylvania · July 7, 2016 URL: https://www.frixlaw.com/law-library/cases/4013972 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** July 7, 2016 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4013972 ## How later opinions describe it (automated extraction) - 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 di… - 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 - holding that impeachment evidence, as well as exculpatory evidence, falls within the Brady rule - stating new and different theory of relief may not be successfully advanced for first time on appeal ## Opinion text J-S37004-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MICHAEL J. DUNCAN Appellant No. 237 WDA 2015 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.: FILED JULY 07, 2016 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.1 We affirm. 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 ____________________________________________ 1 18 Pa.C.S.A. §§ 2502(a), 903, respectively. J-S37004-16 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 -2- J-S37004-16 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, -3- J-S37004-16 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 -4- J-S37004-16 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 -5- J-S37004-16 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. -6- J-S37004-16 5 The [trial court] notes that the caliber of the weapon [had not been] released. Commonwealth v. Duncan, No. 541 WDA 2012, unpublished memorandum at 1-6 (Pa.Super. filed October 30, 2014). 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.2 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 ____________________________________________ 2 Howard Irwin subsequently entered a guilty plea. -7- J-S37004-16 Act (“PCRA”).3 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. 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?[4] 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? ____________________________________________ 3 42 Pa.C.S.A. §§ 9541-9546. 4 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. -8- J-S37004-16 IV. WHETHER THE COMMONWEALTH COMMITTED MISCONDUCT WHEN IT FAILED TO PRODUCE AND DESTROYED THE VICTIM’S CONFIDENTIAL INFORMANT FILE? 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? (Appellant’s Brief at 5). 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 -9- J-S37004-16 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 - 10 - J-S37004-16 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. - 11 - J-S37004-16 THE COURT: You already said that he was at some strip club. I still don’t know the name of it. [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. (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: [COMMONWEALTH]: My objection still stands. [DEFENSE COUNSEL]: I understand what [the Commonwealth] is saying. - 12 - J-S37004-16 [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 - 13 - J-S37004-16 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. - 14 - J-S37004-16 THE COURT: I don’t know what time he went to the strip joint, whatever you call these places. [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. 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 - 15 - J-S37004-16 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. 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.” - 16 - J-S37004-16 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 - 17 - J-S37004-16 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[5] 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). ____________________________________________ 5 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). - 18 - J-S37004-16 “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. 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 - 19 - J-S37004-16 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 Evidence (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. Pa.R.Crim.P. 607(A). “As noted in the comment to Rule 607, the purpose of - 20 - J-S37004-16 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. 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 - 21 - J-S37004-16 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 Miranda6 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 ____________________________________________ 6 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). - 22 - J-S37004-16 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 occurred7; (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 ____________________________________________ 7 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). - 23 - J-S37004-16 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. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/7/2016 - 24 - J Circulated 06/14/2016 11:08 AM IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA CRIMINAL DIVISION ) COMMONWEALTH OF ) PENNSYLVANIA, ) ) ) vs. ) CP-63-CR-0000357-2011 ) 237 WDA2015 MICHAEL DUNCAN, ) ) DEFENDANT/APPELLANT. ) Gary Gilman, J. SEPTEMBER 1, 2015 TRIAL OPINION PURSUANT TO Pa.R.A.P. 1925(a) This Opinion serves as the trial court's Pa.R.A.P. 1925(a) Opinion on the Defendant's appeal regarding the trial court's Order of Sentence dated March 2, 2012 and filed March 5, 2012.1 After a jury trial, Defendant was found guilty of Criminal Homicide, Murder in the First Degree, a felony of the first degree, 18 Pa.C.S.A. § 2501(a); and Criminal Conspiracy to Commit Homicide, Murder in the First Degree, a felony of the first degree, 18 Pa.C.S.A. § 903. (Reproduced Record ["R.R."] #4, 71). The trial court sentenced the Defendant as follows: 1. Criminal Homicide, Murder in the First Degree, to pay his pro rata share of restitution of $226.50 to the Pennsylvania State Police ("PSP") Harrisburg Laboratory; to complete all rehabilitative treatment recommended by the I The trial was conducted by Judge Janet Moschetta Bell. Further, Judge Bell sentenced the Defendant. Judge Bell retired on January 4, 2013. Consequently, the case was reassigned to then President Judge, Debbie O'Dell Seneca. Judge O'Dell Seneca, the judge who authored the first 1925(a) opinion in this case, retired on January 4, 2015. Therefore, the case was reassigned to Judge Gary M. Gilman. Judge Gilman reinstated the Defendant's direct appeal rights. After the Defendant filed a concise statement of matters complaint, Judge Gilman authored the within opinion. Pennsylvania Department of Corrections ("DOC"); and to be sentenced to a state prison for a mandatory period of life imprisonment. (R.R. 4). 2. Criminal Conspiracy to Corrunit the Crime of Homicide, Murder in the First Degree, to pay his pro rata share of restitution of $226.50 to the PSP Harrisburg Laboratory; to pay his pro rata share of restitution of $1,842.50 to the PSP Greensburg Regional Laboratory; to complete all rehabilitative treatment recommended by the DOC; and to be sentenced to a state prison for a minimum of fifteen (15) years to a maximum of thirty (30) years consecutive to Count One above. (R.R. 4). The Defendant's aggregate sentence was life in prison plus a consecutive fifteen (15) to thirty (30) years. (R.R. 4). Initially, this court appointed Defendant's current counsel, Attorney Stephen Paul, to assist the Defendant with a Post-Conviction Relief Act ("PCRA") Petition. However, after this court re-instated Defendant's direct appeal rights nunc pro tune, Attorney Paul filed a notice of appeal and drafted Defendant's Concise Statement of Matters Complained of on Appeal ("Concise Statement"). Of the twenty (20) issues raised in Defendant's current Concise Statement, fifteen (15) were raised in Defendant's prior Concise Statement and addressed by the trial court in the 2013 1925a Opinion. Thus, where appropriate and relevant, this court incorporates sections of the 2013 1925a Opinion with the current 1925a Opinion. Factual Background The facts of this case were comprehensively described in the 2013 1925a Opinion. That text and accompanying references and citations are incorporated herein immediately below: John Lynn Newman ("Newman") was shot to death on February 3, 2003, in California, Pennsylvania. (Trial Transcript ["T.T."] 123.) On January 24, 2012, a jury found that Newman's death was the result of a conspiracy and solicitation between John Ira Bronson, Jr. ("Bronson"), the defendant herein, and his co- defendant at trial, Michael J. Duncan C'Duncan"). (Docket 67). Any complete 2 summary of the facts for the intervening nine years must begin with the circumstances that led to his conspiracy and solicitation. In 2002, Newman was approached by the PSP and informed "that he had been investigated and [that] felony drug charges against him [were] pending." (T.T. 733). In October of that year, Trooper Aaron Borello ("Trooper Borello") approached Newman about becoming a confidential informant ("C.I.") for the PSP. (T.T. 733). Trooper Borello and Newman then set about performing a bust involving Newman's supplier, Bronson. (T.T. 736:22). After Bronson was observed selling 200 pills of Oxycodone to Newman, he was arrested. (T.T. 737:20). The PSP searched Bronson's home and found about $384,000 in cash which was seized' (T.T. 748:15). After his arrest, Bronson began acting as a C.I., first with the PSP and then for the Federal Bureau of Investigation ("F.B.I.") (T.T. 883:22-25). While working with the PSP, Bronson asked Trooper Borello directly if it was Newman who had informed on him. (T.T. 755-756). Unfortunately, Bronson's participation as a C.I. was fruitless and ended "within a week" prior to Newman's death. (T.T. 888: 25). At some point after Bronson's arrest, Duncan 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 unarmed] snitch." (T.T. 1467: 21-22). Irwin then witnessed, at his home, a meeting between Duncan, Bronson, and Bowman, a drug dealer and associate of Bronson. (T.T. 1466: 7-14). During the meeting, Bronson asked Duncan to kill Newman and Duncan agreed. Bronson asked Bowman to cooperate in the killing, but Bowman declined. (T.T. 1031: 7-18). Prior to Newman's death, Robert Bedner ("Bedner") called Brian Dzurco ("Dzurco"). (T.T. 1213). Phone records revealed that the call occurred on January 20, 2003, about two weeks before the death of the victim. (T.T. 1238: 22-23). Bedner put Bronson on the phone with Dzurco, who asked Dzurco to set up a meeting with Newman. (T.T. 1226). Dzurco agreed because he believed the matter to be related to a drug debt. After receiving information that the meeting might be fatal for Newman, Dzurco chose not to arrange it. (T.T. 1230, 1231). Shawn Geletei ("Geletei") testified that, while in jail, Duncan approached him and bragged about his intention to murder Newman. He recalled that the conversation was prior to Newman's death. Geletei specifically testified: [Duncan] come over and asked if I knew Newman. I said, yeah. He says, I'm going to take his ass out. And he started saying something about Bronson 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 running his mouth saying about him being a monster and taking people out before and all this. (T.T. 794: 4-12). Through phone records and witness testimony, the following timeline of February 3, 2003, being the day of the killing, was revealed: 2 Bronson eventually pled guilty to drug trafficking and was incarcerated. (T.T. 1777-1778). 3 At 7:32 p.m. a call was made from Newman's cell phone to Brian Homer (''Homer"), which lasted 3 minutes and 19 seconds. (T.T. 571: 5-12). Sometime before 8 :00 p.m. Newman asked his wife for $300.00, ostensibly for cartons of cigarettes, but was, most likely to buy heroin. (T.T. 103: 7-12). At 7:56 p.m. a call was made from Newman's cell phone to Homer, which lasted 1 minute and 9 seconds. (T.T. 571: 17-23). Sometime after receiving the money, Newman left the house. (T.T. 74:11-25). He met Geletei in the alley between their houses to discuss acquiring Oxycodone. Geletei told Newman that he could not locate any Oxycodone. Newman told Geletei that he was going to meet Homer. (T.T. 786-787). Upon returning home, Newman informed his wife that Homer needed a rise and he left again. (T.T. 45: 6-10). At 8:08 p.m. Newman called a drug client named Amelia Pajerski ("Pajerski"). (569: 24-25). At approximately 8:30 p.m. Newman sold Pajerski stamp bags of heroin. (T.T. 320-321). He told Pajerski that the heroin was from Homer. (T.T. 331: 4-5). Pajerski specifically recalled being home in time to watch a favorite show by 9:05 p.m. (T.T. 320-321). At approximately 9:00 p.m. Newman's daughter heard the distinctive sound of her father's car pass by their house. (T.T. 76-77). At 9:03 p.m. Newman called Geletei's landline, which lasted 6 seconds. Thereafter, Newman 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. (T.T. 130-131). Next, the record reveals the events of February 4, 2003, as follows: Early in the morning, Newman'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. (T.T. 78: 4-12). Upon returning to the car with Mrs. Newman, they found the victim dead and contacted the authorities. (T. T. 104-105). The police searched the scene and located a spent bullet casing inside the car, (T.T. 143:10), and unfired cartridge outside the vehicle. (T.T. 175: 18). Newman had $115.00 in cash, (T.T. 185: 18-21), a marijuana "roach", (T.T. 1620:19), a cell phone, (T.T. 1620: 20), and ten packets of heroin. (T.T. 1620: 18). Around 12:00 p.m. Ryan Givens called Duncan to inform him that Newman had been killed, to which Duncan responded, "snitches get dealt with." (T.T. 1280: 10). The authorities took Horner in for questioning and tested his hands for gunshot residue. The results allowed the tester to state "that [Homer] could have fired a gun, could have come in contact with something that had gunshot primer residue on it," (T.T. 664: 12-14), or "that [Horner] was in very close proximity to a firearm when it was discharged." (T.T. 690: 8-10). 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 Duncan to wire money to him while on vacation. (T.T. 1470: 5-10). The money, being $931.00, was transferred on March 10, 2003. (T.T. 163 9: 17-21). Also in early March, Duncan 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. Duncan opened a safe located within the Hull residence, to which only he and Irwin had access. At that time, Duncan was heard making a call. (T.T. 1353: 16-23). The exact nature of the call was unclear. However, Hull, who was admittedly high on crack at the time, recalled hearing Duncan speak about shooting someone. (T.T. 1355: 25; 1356: 3-4). Duncan, who appeared "giddy, nervous, [and] agitated," (T.T. 1353: 18), pointed a gun in Hull's face before leaving. (T.T. 1375: 17-18). When Irwin later returned from 4 vacation, he discovered that Duncan had "disappeared". (T.T. 1471: 18). Irwin found that the safe had been emptied. The safe's contents, being money, drugs and a nine millimeter (9mm) pistol, were missing, and only a cell phone was left behind. (T.T. 1472: 8-14; 1592: 19-20). In April of 2003, while on furlough, Bowman spoke with Duncan, who told Bowman that he killed Newman, and explained the manner in which he did it. (T.T. 1032: 11-12). Duncan told Bowman that he was in the rear of Newman's car and shot him in the left ear. (T.T. 1032: 19-21). Between April and June of 2003, Bowman had a three-way call with a woman and Duncan. (T.T. 1105). Again, Duncan admitted that he killed Newman. (T.T. 1113: 5-8).3 In September of 2003, PSP Trooper James Monkelis ("Trooper Monkelis") and Trooper Beverly Ashton ("Trooper Ashton") interviewed Duncan. (T.T. 1639-1640). He denied having ever been in California, PA, and denied knowing Newman. (T.T. 1640: 16, 24). When told of Newman's death, Duncan said that he did not "whack" him, despite not being told the nature of Newman's death.4 (T.T. 1641: 8). Duncan also identified Newman as a snitch. (T.T. 1641: 15). Newman's role as a C.I. had not been released to the public. (T.T. 1641: 16-25). Duncan made other inculpatory statements, such as: 1. Stating that "hypothetically" someone, implying Newman, owed someone else, implying Bronson, a lot of money. (T.T. 1641: 8-12). 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." (T.T. 1642: 15-16). 3. In response to the interviewer stating that it might have been self-defense, he stated "come on, man, you seen that crime scene, it couldn't have been self defense."5 In late 2003, a former corrections officer, Eric DeLong ("DeLong"), encountered Duncan in a bar. (T.T. 847: 16-20). DeLong overheard Duncan state, "yeah, I popped that guy in the back of the head [in] California." (T.T. 850: 9-12). A few days later, DeLong reported this incident to the PSP, who put him in touch with the FBI. (T.T. 851: 5-8). Despite this report, DeLong "didn't hear anything for, approximately, seven years." (T.T. 851: 7-8). Approximately two and a half years after Irwin first discovered that Duncan had fled California, PA, he finally spoke to Duncan. When Irwin asked Duncan why he had left California, PA, Duncan gave his reasons, admitting to killing Newman and also to Homer's involvement. Duncan told Irwin that "Brian Horner was running [Duncan's] name about being involved in the homicide and [Homer] was actually the one that ... brought [Newman] out [of] the house and ... brought him to the car. And [Duncan] was in the car and [Duncan] whacked [Newman]." (T.T. 1472: 22-25; 1473: 3-4). Duncan went on to tell Irwin that he "whacked," or killed, Newman because he was a "snitch". (T.T. 1473: 11-13). 3 The Court notes that the testimony regarding this call was elicited from Bowman on cross-examination. Defense counsel asked Bowman "you are saying ... that [Duncan] 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 I'm telling the jury." (T.T. 1078-1079). 4 The Court notes that it was public knowledge that Newman had been killed. 5 The Court notes that no crime scene photos had been released at the time of the interview. (T.T. 1643: 16-20). 5 In January 2011, Duncan was arrested in Amherst, Ohio. He was interviewed again by Trooper Monkelis (T.T. 1644: 4-7), and again made inculpatory statements. He stated that "snitches get dealt with." (T.T. 1645: 4). He stated that "he never owned or carried that caliber of a weapon.?" (T.T. 1645: 5-6). After the interview, Duncan was transported back to Pennsylvania. Duncan, while en route, spoke in further detail about his views on snitches, saying that even "God doesn't like snitches." (T.T. 1646: 5-21). In August of 2011, Bronson was housed in the Washington County Correctional Facility ("WCCF'') in connection with being charged in this case. In December of 2011, Bronson admitted to Michael McCarthy, a fellow inmate, that he attended the 2002 meeting with Duncan and Bowman at Irwin's house. (T.T. 1428: 12-13). He admitted that the meeting concerned "offing", or killing, Newman. (T.T. 1429: 15-16). McCarthy then reported the conversation to the authorities. (T.T. 1429: 20-23). Procedural History The procedural history was set forth in the 2013 1925a Opinion. That text and accompanying references and citations are incorporated herein immediately below: These charges were initiated with a Washington County Grand Jury presentment dated December 8, 2010, recommending that Michael J. Duncan, John Ira Bronson, Jr., and Howard Edward Irwin, Jr. be charged with specific crimes. The recommendation with respect to Michael J. Duncan was Count One; Criminal Homicide, 18 Pa.C.S.A. § 2502(a), First Degree Murder, and Count Two: Criminal Conspiracy, 18 Pa.C.S.A. § 903. (Docket 6). On January 13, 2011, by Order of this Court, the Commonwealth was granted leave to disclose the Presentment as an attachment to the affidavit of probable cause to an issuing authority and the presentment was ordered unsealed and filed with the Clerk of Courts of Washington County. (Docket 6). Charges were filed on January 13, 2011. Defendant Duncan's preliminary arraignment was held on January 14, 2011, and after a preliminary hearing on February 2, 2011, Defendant was held for court on both charges. (Docket 10). The case was assigned to now-retired Judge Janet Moschetta Bell and she conducted a formal arraignment on April 14, 2011. (Docket 11, 18). The Commonwealth filed its two-count Criminal Information on April 7, 2011. (Docket 12). On May 6, 2011, Attorney David S. Shrager filed a formal entry of appearance on behalf of defendant and entered a plea of not guilty on all charges on defendant's behalf. (Docket 14). On July 8, 2012, defense counsel filed a Motion to Produce Additional Discovery and for an Extension of Time to File Pre-Trial Motions. (Docket 19). The Court granted that Motion by Order dated July 8, 2012. (Docket 19). The Commonwealth filed a Discovery Response on July 25, 2011. (Docket 20). On August 26, 2011, defense counsel filed a Motion for Extension of Time to File Pre-Trial Motions and that Motion was granted by Court Order. (Docket 21). On August 31, 2011, upon request of the Warden of the WCCF and for administrative 6 The Court notes that the caliber of the weapon was never released, (T.T. 1645: 7-12). 6 and security reasons, the Court issued an Order permitting the transfer of defendant Duncan from the WCCF to the Fayette County Jail. (Duncan 22). Defense counsel filed an Omnibus Pretrial Motion- Motion to Compel the Grand Jury Transcript and by Order dated September 22, 2011, this Court granted that Motion compelling the Commonwealth to turn over the Grand Jury Testimony. (Docket 23). The Commonwealth did so without objection. Also on September 22, 2011, defense counsel filed numerous Omnibus Pre-Trial Motions, Motions in Limine, and other miscellaneous motions separately: Motion to Transfer (Docket 24); Omnibus Pre-Trial Motion- Motion to Suppress (Docket 25); Omnibus Pre-Trial Motion - Motion to Suppress Extra-Judicial Statements (Docket 26); and seven (7) different Omnibus Pre-Trial Motions- Motions in Limine (Docket 27-33). The Court scheduled all of these Pre-Trial Motions for a hearing on October 27, 2011. The Commonwealth filed its responses to the numerous defense pre-trial motions listed above in Docket 37-48. Meanwhile, the Commonwealth on September 3 0, 2011, filed a Motion to consolidate all three pending cases, Commonwealth of Pennsylvania v. Michael J Duncan, 357-2011; Commonwealth of Pennsylvania v. John Ira Bronson, Jr., 2217-2011; and, Commonwealth of Pennsylvania v. Howard Edward Irwin, Jr., 358-2011 (Docket 35). The Commonwealth's Motion was scheduled for argument on October 21, 2011; all defense attorneys presented arguments against the consolidation while the Commonwealth argued in favor of its Motion. (Docket 34). The Motion to Consolidate all three cases was granted by Court Order dated October 25, 2011. (Docket 36). After a hearing and arguments on October 27, 2011, addressing the numerous pending defense pre-trial motions, the Court issued a lengthy Order dated October 31, 2012, denying or granting the pending motions. (Docket 49). In Docket numbers 50 and 52, the Commonwealth filed Supplemental Discovery Responses. The Court filed an Order scheduling the consolidated cases of Commonwealth v. Michael J Duncan and Commonwealth v. John Ira Bronson, Jr. for jury trial on January 9, 2012. (Docket 51). The third co-defendant, Howard Edward Irwin, Jr. pursuant to a plea agreement, pled guilty to one count of Hindering Apprehension or Prosecution - False Informationto Law Enforcement, a felony of the third degree, 18 Pa.C.S.A. § 5105(a)(5), on December 14, 2011. Irwin testified in the Commonwealth's case-in-chief in the consolidated cases of Commonwealth of Pennsylvania v. Michael J Duncan and Commonwealth of Pennsylvania v. John Ira Bronson, Jr.. On December 2, 2011, Attorney Shrager filed three additional Omnibus Pre-Trial Motions- Motion in Limine (Docket 53-55) which the parties agreed did not require a scheduled hearing but would be considered at the appropriate time during trial. On December 8, 2011, the Court issued a Case Management Order. (Docket 56). The Commonwealth filed additional Supplemental Discovery Responses on December 12 and December 1, 2011. (Docket 57-58). On December 19, 2011, the Commonwealth filed its Proposed Jury Questionnaire and Vair Dire. (Docket 59). The Commonwealth also filed a Motion in Limine #1 (Docket 60) which was heard by the Court on December 20, 2011. The Court issued an Order on December 27, 2011, granting the Commonwealth's Motion in 7 Limine #1. (Docket 62). The cases were scheduled for a final pre-trial conference on January 3, 2012. (Docket 61). On December 29, 2011, defense counsel filed his Proposed Vair Dire Questions. (Docket 63). The Commonwealth filed additional Supplemental Discovery Responses on January 5, 2012 (Docket 64), January 6, 2012 (Docket 65), and January 9, 2012 (Docket 66). On January 10, 2012, the Court issued an Order denying Attorney Shrager's oral motion to sanction the Commonwealth for the alleged late discovery of a Western Union document citing Pa.R.Crim.P. 573 (D) and (E) and the lack of showing of prejudice to the defendant. (Docket 67). On January 12, 2012, defense counsel filed another Omnibus Pre-Trial Motion- Motion to Suppress Statement (Docket 68) for which the Court issued an Order dated January 12, 2012, after hearing arguments of counsel on January 10- 11, 2012. In that Order, the Court denied defense counsel's request that the defendant's video and recorded statements of January 14, 2011, be, suppressed citing pertinent case law and the Court's rationale. (Docket 69). Jury selection began on January 9, 2012, and was completed on January 10, 2012. The jury trial commenced on January 11, 2012 and concluded on January 23, 2012. The jury was charged on January 24, 2012, and on the same date, found Michael J. Duncan guilty on both counts, Criminal Homicide- Murder in the First Degree and Criminal Conspiracy to Commit Criminal Homicide O Murder in the First Degree. (Docket 71). On March 2, 2012, the Court sentenced the defendant to state prison for an aggregate sentence of life in prison plus a consecutive fifteen to thirty (15-30) years. (Docket 74). On March 22, 2012, Attorney Shrager filed a Notice of Appeal to the Pennsylvania Superior Court. (Docket 76). On April 2, 2012, the Court issued its 1925(b) Order requesting the filing of a Concise Statement of Matters Complained of on Appeal. (Docket 78). Upon request of defense counsel, the Court granted Attorney Shrager two continuances to file his Concise Statement. (Docket 80, 91). Upon receipt of and payment for the approximate 2,000 page trial transcript by defense counsel, the Court granted Attorney Shrager's Motion to Withdraw as counsel for Michael J. Duncan on August 22, 2012, and in the same order, appointed Attorney Jeffrey Watson to represent the defendant on appeal and to file defendant's 1925(b) statement. (Docket 93). With no objection from the Commonwealth, the Court granted Attorney Watson's Motion for Extension of Time to File Concise Statement filed September 10, 2011. (Docket 94). On October 9, 2012, Attorney Watson filed a twenty (20) page Concise Statement of Matters Complained of on Appeal. (Docket 95). This Court issued an Order on January 2, 2013, appointing Attorney Mary Bates to represent the defendant on appeal as Attorney Watson had accepted a position as an administrative law judge. (Docket 96). On January 4, 2013, the trial judge, the Honorable Judge Janet Moschetta Bell, retired after seven (7) years on the bench. 8 Consequently, President Judge O'Dell-Seneca authored a 1925a Opinion in response to the Defendant's Concise Statement. (R.R. #97). The Superior Court issued an opinion regarding Defendant's appeal on October 30, 2014. (R.R. #108). The Honorable T. Bender stated, Here, we ascertain that Appellant's disregard of both the spirit and explicit text of Rule 1925(b)(4) is too egregious to be overlooked, despite the trial court's valiant efforts at tackling Appellant's claims in its Rule 1925(a) opinion. Accordingly, we conclude that all of the claims raised in Appellant's Rule 1925(b) statement have been waived for his failure to comply with Rule 1925(b)(4), and we affirm his judgment of sentence on that basis. After the Superior Court issued its Opinion concerning Defendant's direct appeal, Defendant filed a PCRA Petition with the trial court on December 3, 2014. (R.R. #105). The court appointed Attorney Stephen Paul to assist Defendant with his first PCRA Petition on December 3, 2014. (R.R. #106). Attorney Paul filed an Amended PCRA Petition on behalf of Defendant on January 30, 2015. (R.R. #112). On January 30, 2015, the court granted Defendant permission to file a direct appeal nunc pro tune. (R.R. #112). Consequently, Attorney Paul filed a Notice of Appeal on February 6, 2015. (R.R. #113). The court granted Attorney Paul's Motion for Extension of Time to File Concise Statement on February 24, 2015 and Motion for Extension of Time to File Concise Statement on May 13, 2015. (R.R. #120). Defendant's Concise Statement of Matters Complained of on Appeal was filed July 13, 2015. (R.R. #121). Legal Analysis Defendant raises twenty (20) issues in the instant Concise Statement. Of the twenty arguments, fifteen (15) were raised in the prior Concise Statement and were addressed in the I prior trial court's l 925a Opinion. The Superior Court stated in Footnote 5 of the Memorandum Opinion issued on October 30, 2014 in case 541 WDA 2012, "[n]evertheless, were we to reach the claims that Appellant raised in his brief to this Court, we would affirm based upon the trial 9 court's well-reasoned Rule 1925(a) opinion." Consequently, this court respectfully requests the Superior Court review the prior 1925(a) Opinion for a well-reasoned response to Defendant's repeated arguments. (R.R. #97). In Paragraph 15 of the Concise Statement, Defendant claims that the Commonwealth committed prosecutorial misconduct and violated Defendant's due process rights under the U.S. and the Pennsylvania Constitutions when it did not disclose to the jury that witness Michael Bowman was offered immunity to prosecution in exchange for testimony during grand jury proceedings. "Due process is offended when the prosecution withholds material evidence favorable to the accused." Commonwealth v. Weiss, 622 Pa. 663, 690-91, 81 A.3d 767, 783 (2013) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963); see also Commonwealth v. Weiss (Weiss II), 604 Pa. 573, 583-84, 986 A.2d 808, 814 (citing Commonwealth v. Strong, 563 Pa. 455, 761 A.2d 1167 (2000)). "The Brady rule encompasses impeachment evidence such as information as to any potential understanding between the prosecution and a witness, because such information is relevant to the witness's credibility." Weiss, 622 Pa. at 691, 81 A.3d at 783; see United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (holding that impeachment evidence, as well as exculpatory evidence, falls within the Brady rule); Commonwealth v. Spotz, 616 Pa. 164, 47 A.3d 63, 84 (2012); see also Strong, 563 Pa. at 469, 761 A.2d at 1175 ("Impeachment evidence which goes to the credibility of a primary witness against the accused is critical evidence and it is material to the case [even when] that evidence is merely a promise or an understanding between the prosecution and the witness."). To prove that a Brady violation has occurred, the Pennsylvania Supreme Court has explained that "an appellant must prove three elements: (1) the evidence at issue is favorable to 10 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." Weiss, 622 Pa. at 691, 81 A.3d at 783; see also Spotz, 616 Pa. at 200, 47 A.3d at 84. "Moreover, there is no Brady violation when the defense has equal access to the allegedly withheld evidence." Weiss, 622 Pa. at 691, 81 A.3d at 783; see Commonwealth v. Spotz (Spotz II), 587 Pa. 1, 96, 896 A.2d 1191, 1248 (2006) (holding "[i]t is well established that no Brady violation occurs where the parties had equal access to the information or if the defendant knew or could have uncovered such evidence with reasonable diligence." (internal citation omitted)). In the instant case, the Defendant alleges that the Commonwealth committed prosecutorial misconduct by not disclosing to the trial jury that it offered witness Michael Bowman immunity in exchange for testifying in a grand jury proceeding. Although there is no document concerning an offer of immunity in the reproduced record, the Commonwealth's immunity agreement to Mr. Bowman is memorialized in the transcript of the Grand Jury proceeding. At the grand jury proceeding, Judge Katherine Emery stated to Mr. Bowman that District Attorney Toprani had handed her a petition for a grant of immunity. (Grand Jury Transcript ["G.J.T."] pp. 125-26). Further, Mr. Bowman was asked "And do you also understand that we provided you with an order granting immunity, which the judge signed? Do you understand what that consists of?" Mr. Bowman answered "Yes." (G.J.T. p. 130). In addition, Mr. Bowman was asked, "Do you understand that · the order of immunity will prevent the prosecution from any matters that you may testify before this Grand Jury." Mr. Bowman responded, "Yes." Id. Thus, it app~ars that the Defendant is correct that the prosecution offered Mr. Bowman immunity at some point prior to Defendant's trial. 11 In assessing whether the Commonwealth committed prosecutorial misconduct by not disclosing the existence of the immunity agreement to the jury, this court looks to the three elements of the Brady test. First, the court finds that the evidence at issue (here, the immunity agreement) is favorable to the Defendant. A jury may question Mr. Bowman's credibility or motives because he received an immunity agreement. As to the second element of the Brady test, however, the court finds no indication that the Commonwealth suppressed or withheld the evidence. Unlike in Strong, the existence of an agreement was apparent on the face of the grand jury transcript. In addition, Defendant's counsel possessed a copy of said transcript prior to the jury trial. It is clear that Defendant's counsel had a copy of the grand jury transcript because he frequently refers to the transcript during Defendant's jury trial. In fact, before beginning to cross examine Mr. Bowman during the jury trial, Defense Attorney Shrager stated the following: "Your honor, before we begin, I want to make sure the Court has a copy of the preliminary hearing transcript and for the Grand Jury. I think there is [sic] extra copies. So we can give it to Judge Moschetta Bell. I want to make sure you have a copy because I am going to be referring to it." (R.R. #86, p. 1066, LL. 9-14). Defense Attorney Shrager proceeded to refer to the grand jury transcript repeatedly during his cross-examination of Mr. Bowman. (Id. at pp. 1066-1103). For example, Attorney Shrager cross-examined Mr. Bowman regarding his testimony at the grand jury proceeding and what details, if any, he gave concerning the jail phone call (Id. at pp. 1075- 77). Therefore, Defense Attorney Shrager had equal access to the immunity agreement between the Commonwealth and Mr. Bowman before trial commenced. Correspondingly, with respect to the third element of the Brady test, prejudice did not ensue because Defense Attorney Shrager had the opportunity to and did cross examine Mr. Bowman concerning his possible bias against the Defendant.7 See, e.g., id. at pp. 1087, 1092-94. 7 The issue of Mr. Bowman's potential bias in favor of the Conunonwealth was addressed several times on the 12 For the above-mentioned reasons, there is no Brady violation present in the instant case - the Defendant had equal access to the allegedly deprived information. The Defendant's argument lacks merit. In Paragraph 16 of the Concise Statement, Defendant alleges the trial court erred during the testimony of Mr. Bowman when it overruled Defendant's objection to questions related to a police interview report written by Corporal Beverly Ashton of the PSP, dated June 10, 2003. During re-direct examination, Assistant District Attorney Newberry (A.D.A. Newberry) asked Mr. Bowman, "[n[ow, with respect to Michael Duncan, during those two hearings, were you ever 8 asked about a three-way phone call?" (Id. at p. 1099, LL. 14-16.) Mr. Bowman responded "I was not." (Id. at p. 1099, L. 17). Then, A.D.A. Newberry stated, "Mr. Bowman, I'm going to hand you what I'm marking as Commonwealth's Exhibit 35, I believe." (Id. at p. 1099, LL. 18- 19). Next, A.D.A. Newberry asked, "Mr. Bowman, can you identify the date on that document?" (Id. at p. 1099, LL. 24-25). At that point, Defense Attorney Shrager objected to A.D.A. Newberry's question. (Id. at p. 1100, LL.7-8). During a side-bar conference regarding Defense Attorney Shrager's objection, A.D.A. Newberry explained that Commonwealth's Exhibit 35 is a report Corporal Ashton composed regarding a June 10, 2003 interview with Mr. Bowman. (Id at p. 1100, LL. 11-19). In addition, A.D.A. Newberry stated, "Mr. Shrager, on cross, asked Mr. Bowman if he had testified in front of the Grand Jury about a three-way phone call indicating that this is new information, that he is record during the jury trial with respect to a plea offer that Mr. Bowman received for a separate case. Both Defense Attorney Emerick (counsel for co-defendant John Bronson) and Defense Attorney Shrager cross-examined Mr. Bowman regarding that plea offer to attempt to establish some motive for Mr. Bowman's testimony. See R.R. #86, pp. 1056-62, 1087-94. The fact that both defense attorneys had the opportunity and did cross examine Mr. Bowman as to his potential bias further substantiates this court's conclusion that Brady was not violated in this case. 8 The two hearings being referred to are the grand jury proceeding and the preliminary hearing. 13 making it up. Well, on June 10, 2003, he was interviewed and talks about a three-way phone call with this woman from the jail. That can certainly come in." (Jd.). Although Defense Attorney Shrager claimed "I didn't ask him about this report," A.D.A. Newberry replied, "You opened the door to this." (Id. at p. 1101, LL. 19-20). Defense Attorney Shrager asserted, "I'm making an objection and whatever you rule, I'm good with either way. Didn't ask about that report. Asked about the Grand Jury. This is now going into something afield. Didn't ask about this. I stayed away from this report. If this report was not brought up - - I didn't ask him about that report. That's why I didn't. Does it open it up? I think it's a reversible error. Whatever?" (Id. at p. 1102, LL. 6-14). The trial court made the following ruling. "I think Mr. Shrager has made an objection and Mr. Newberry has responded and there was a question on cross by Mr. Shrager regarding this phone call to the girl, three-way phone call, and I'm going to permit some re-direct. Objection overruled." (Id. at p. 1102, LL. 19-23). The law is clear that "the scope of redirect examination is largely within the discretion of the trial court." Commonwealth v. Gonzalez, 109 A.3d 711, 730 (Pa. Super. Ct. 2015) (citing Commonwealth v. Dreibelbis, 493 Pa. 466, 479, 426 A.2d 1111, 1118 (1981). "Moreover, when a party raises an issue on cross-examination, it will be no abuse of discretion for the court to permit re-direct on that issue in order to dispel any unfair inferences." Dreibelbis, 493 Pa. at 479, 426 A.2d at 1118 (citing Commonwealth v. Lewis, 472 Pa. 235, 372 A.2d 399 (1977)). Thus, it is not an abuse of discretion for a court to permit re-direct on an issue raised during cross- examination. In the instant case, the portion of the witness examination under scrutiny occurred during A.D.A. Newberry's re-direct examination of a witness, Mr. Bowman. The issue AD.A. 14 Newberry was addressing in Corporal Ashton's report, which was identified as Commonwealth's Exhibit 35, was in response to an issue Defense Attorney Shrager raised during cross- examination of Mr. Bowman. A.D.A. Newberry was correct that during Defense Attorney Shrager's cross-examination of Mr. Bowman, he questioned Mr. Bowman regarding the three- way phone call. Specifically, during cross-examination, Defense Attorney Shrager asked Mr. Bowman, "[y ]ou never testified about making a jail phone call and this guy that you barely knew is supposed to have said, yeah, I did it, you never said a word about that in front of the Grand Jury?" (R.R. #86, p. 1075, LL. 9-12). Mr. Bowman told Attorney Shrager, "I wasn't questioned about it." (Id. at p. 1075, L. 13). Defense Attorney Shrager then asked "[y]ou never said a word about that at the preliminary hearing; did you?" (Id. at p. 1075, LL. 14-15). Mr. Bowman testified "No, the initial interview." (Id. at p. 1075, L. 16). Defense Attorney Shrager raised this issue a second time during his cross-examination of Mr. Bowman. Specifically, Defense Attorney Shrager asked "[w]hat you're saying to the jury is this guy you hardly know, and we have the exact words, I hadn't known him long, you are saying now that he 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?" (Id. at p. 1076, LL. 23-25; p. 1077, LL. 3-5). Mr. Bowman answered, "[tjhat's exactly what I'm telling the jury." To which, Defense Attorney Shrager responded "[b]ut you didn't say that, not a word about a jail call and recorded jail call when you testified in front of the grand jury?" (Id. at p. 1077, LL. 7-9). Mr. Bowman replied, "I wasn't asked." (Id. at p. 1077, L. 10). Also during Defense Attorney Shrager's cross-examination of Mr. Bowman, he asked Mr. Bowman about his meeting with Corporal Ashton. Defense Attorney Shragerasked "[d]id you ever talk to Corporal Ashton?" (Id. at p. 1078, L. 15). Mr. Bowman replied "[u]m, sometime 15 in the summertime. After I wrote the letter, she came to see me." (Id. at p. 1078, LL. 18-19). When Defense Attorney Shrager asked "[d]id you tell Corporal Ashton about the letter?," Mr. Bowman replied "Yes. She knew about the letter. I wrote it to Silbaugh." (Id. at p. 1078, LL. 20- 23). Attorney Shrager then asked "Now, did she- - do you know if you mentioned that you told Corporal Ashton that you got $1,200 and three ounces of cocaine to set these guys up?" (Id. at p. 1078, LL. 24-25; p. 1079, L. 3). Mr. Bowman replied, "No, I didn't tell her that." (Id. at p. 1079, L. 4). Mr. Shrager then asked "But she knew about the letter?" (Id. at p. 1079, L. 5). Mr. Newberry then objected by stating, "Judge, I'm going to object at this point. I believe Mr. Shrager is referring to an interview that took place June 10, 2003. The letter is postmarked February 11, 2011. Clearly he couldn't talk about a letter that hadn't been written." (Id. at p. 1079, LL. 6-11). The Court sustained A.D.A. Newberry's objection. (Id. at p. 1079, L. 12). Because Defense Attorney Shrager questioned Mr. Bowman concerning the three-way phone call during his cross-examination, it was proper for the court to permit A.D.A. Newberry to question Mr. Bowman about the three-way phone call on re-direct. Not only did Defense Attorney Shrager ask Mr. Bowman about the three-way phone call multiple times, but he also asked about Mr. Bowman's interview with Corporal Ashton. Therefore, Attorney Shrager clearly raised this issue during his cross-examination of Mr. Bowman. Consequently, the trial court did not abuse its discretion in permitting A.D.A. Newberry to question Mr. Bowman on re-direct examination regarding Mr. Bowman's phone call mentioned in Corporal Ashton's report. Thus, Defendant's argument lacks merit. In Paragraph 17 of the Concise Statement, Defendant argues the Commonwealth committed prosecutorial misconduct during Defendant's cross-examination when it stated Trooper Monkelis never testified that he informed Defendant that the victim was a confidential 16 informant. Specifically, the relevant portion of A.D.A. Newberry's cross-examination of Defendant is as follows: Q. How did you know that John Newman was a confidential informant? A. When Mr. Monkelis said he was a silent partner. Q. Please explain that to me. A. What do you mean explain it, it's self explanatory. He said the man was a silent partner? Q. And that means? A. He was working with the police. He didn't use the word confidential informant. Q. Mr. Duncan, he never indicated to you that he was working with the police; isn't that correct? A. He indicated that he was a silent partner. I believe the trooper testified that he indicated Mr. Newman was a silent partner. Q. Actually, Mr. Duncan, he did not testify to that. You're testifying to that right now. (R.R. #90, p. 1873, LL. 20-25; p. 1874, LL. 3-13). The standard for determining whether prosecutorial misconduct has warranted a mistrial is well established. The standard is as follows. To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant's right to a fair trial. The touchstone is the fairness of the trial, not the culpability of the prosecutor ... Not every unwise, intemperate, or improper remark made by a prosecutor mandates the grant of a new trial[.] Reversible error occurs only when the unavoidable effect of the challenged comments would prejudice the jurors and form in their minds a fixed bias and hostility toward the defendant such that the jurors could not weigh the evidence and render a true verdict. Commonwealth v. Spatz, 616 Pa. 164, 47 AJd 63, 97-98 (2012) (internal citations and quotation marks omitted). The Commonwealth did not commit prosecutorial misconduct during the cross- examination of Defendant. A.D.A. Newberry asked Trooper Monkelis, "[d]uring the 2011 interview, did you inform Mr. Duncan that Mr. Newman had been a confidential informant?" (R.R. #90, p. 1884, LL. 12-14). Trooper Monkelis answered, "No, I did not." (Id. at p. 1884, L. 15). Thus, the Commonwealth was correct when it told Defendant that Trooper Monkelis did not inform Defendant that the victim was a confidential informant. Further, Defendant actually testified that Trooper Monkelis never used the word confidential informant. Therefore, the 17 Commonwealth did not commit prosecutorial misconduct by stating that the Trooper never informed Defendant that the victim was a confidential informant. The Defendant's argument lacks merit. In Paragraph 19 of the Concise Statement, Defendant claims the trial court erred by failing to dismiss Juror #3, when it was discovered he was approached by an attorney not affiliated with trial and questioned about his role as a juror. While this specific issue was not raised in the Defendant's Prior Concise Statement, the trial court addressed whether Juror #3 should be dismissed in the prior 1925(a) opinion. (R.R. #97.) Due to the nature of this issue, this court believes it is helpful to review the relevant factual background. The facts surrounding this issue are best summarized from the 2013 1925(a) Opinion regarding Paragraph 21 of the Defendant's prior Concise Statement: An issue arose during trial on January 18, 2012, when Attorney Sean Logue reported to Attorney Keith· Emerick, counsel for John Ira Bronson, Jr., who reported to Attorney David S. Shrager, counsel for Michael Duncan, that Juror #3 was involved in county conservative politics and had supported Eugene Vittone for District Attorney in 2011. This matter developed· on the record at T.T. 976- 983, at which time the trial court took the matter under advisement and moved on to another witness, Coroner Timothy Warco, whose testimony finished the morning session. Prior to returning to the courtroom after the .lunch recess, the trial court met in chambers with counsel to review the facts and explain its ruling and ultimately met with Juror #3 in the presence of all counsel. The facts can best be summarized by including the statement prepared by the trial judge's law clerk, Amanda Kraft, Esq., upon the trial judge's request: This morning, January 18, 2012, immediately following morning break, I was approached by Juror #3 regarding a concern which has arisen during break, heeding the Judge's instruction prior to break, as he was returning through the metal detectors after taking a cigarette break, he was approached by Attorney Sean Logue. He stated that he knew Sean Logue, and Mr. Logue approached him, asked whether he was a Juror, and then asked whether he was on the murder trial. The Juror stated to me, that he told Mr. Logue he could not talk about it, walked away with the other jurors and returned to the courtroom. Two other jurors, #4 and #8, were apparently standing near Juror #3 and may have overheard the conversation. 18 Juror #3 was concerned about being approached, then was more concerned when Mr. Logue entered the courtroom and approached Mr. Emerick's counsel table. The Juror was afraid that Mr. Logue was also working on the case or was somehow involved in this case as a witness. He immediately mentioned a problem to Tim Relich (trial judge's court crier/law clerk) when he was first approached by Mr. Logue, then spoke to me once entering the room and seeing Mr. Logue with Mr. Emerick. I immediately brought Juror #3 's concern to the Judge. Both Attorneys Shrager and Emerick asked that Juror #3 be dismissed although all attorneys in chambers agreed that politics has no bearing on a juror's removal. Attorney Shrager stated that he had nothing to support the request for the removal of Juror #3. The Commonwealth opposed the defense request to remove Juror #3. The Court denied the motion but agreed to inform Juror #3 of the fact that all parties were aware of his concerns regarding Attorney Sean Logue, who was not involved in the case whatsoever as a lawyer or as a witness; that he had followed instructions completely and properly; and would remain as Juror #3. See T.T. 994-1004. (R.R. #97.) While the focus of the discussion in chambers between the trial judge and the attorneys was Juror #3's suitability as a juror due to his involvement in conservative politics, that discussion necessarily involved the issue of Juror #3 being approached by an attorney not affiliated with trial and questioned about his role as a juror. The trial judge, Attorney Shrager, and the Commonwealth were clearly aware that Juror #3 was approached by an attorney not affiliated with trial and questioned about his role as a juror when they met to discuss whether Juror #3 should be removed from the jury panel. After discussing the interaction between Attorney Logue and Juror #3 as well as Juror #3's political activity, the trial court, Commonwealth, and Attorney Shrager reached a consensus that there were no grounds to remove Juror #3. Thus, the trial court did not err when it denied the request of Defense Attorneys to remove Juror #3, because all parties were in agreement that Juror #3 remain on the jury panel. Consequently, Defendant's argument lacks merit. 19 Finally, in paragraph 20 of the Concise Statement, Defendant argues that the trial court erred during Defendant's testimony when it granted Commonwealth's objection to evidence presented regarding Defendant's location on the date of the homicide. The Defendant testified regarding his location on the night of the victim's death several times during his direct examination. Consequently, this court will review each time the trial court ruled on Commonwealth's objection to such testimony. The first time Defense Attorney Shrager asked Defendant what he did the night the victim was murdered, the Defendant testified that he was at a strip club called the Filly Corral. (R.R. #90, p. 1843, LL. 3-6; p. 1844, LL. 24-25). The Commonwealth objected to the Defendant's testimony regarding his location on the night the victim was murdered because they were not given notice of Defendant using an alibi. (Id. at p. 1845, LL. 4-16). The trial court sustained the Commonwealth's objection and the Defendant could not testify any more about the issue without alibi notice. (Id. at p. 1846, LL. 4-16). Defendant testified a second time about being present at the strip club called the Filly Corral around the time of the victim's death and then traveling to Denny's restaurant. (Id. at p. 1850, LL. 20-24). Again, the Commonwealth objected. (Id. at p. 1850, LL. 25; p. 1851, L. 3). The trial court again sustained the Commonwealth's objection because the Defendant did give a notice of an alibi and the Defendant was "trying to get an alibi defense in through the back door without a notice." (Id. at p. 1853, LL. 5, 9-22). The trial court further explained that had the Defendant put on a notice of alibi, the Defendant would be permitted to present testimony about his location around the time the victim was killed, and the Commonwealth would have had notice of this issue and an opportunity to investigate the issue. (Id. at p. 1854, L. 3-5). Consequently, the trial court struck the Defendant's testimony from the record and issued a 20 cautionary instruction to the jury that it was to disregard the Defendant's testimony during their deliberation. (Id. at p. 1856, LL. 20-25; p. 1857, LL. 3-7). Pa.R.Crim.P. 567(A) states, "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." Pa.R.Crim.P. 567(8)(1) states, "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 replaced Pa.R.Crim.P. 305, and Pa.R.Crim.P. 567(8)(1) mirrors Pa.R.Crim.P. 305(1)(d).9 Due to the limited case law applying Pa.R.Crim.P. 567(8)(1), this court relies on the guidance provided from Pennsylvania case law analyzing and applying Pa.R.Crim.P. 305(C)(l)(d). "Rule 305 clearly enables the trial court to take whatever action is within the interests of justice, when no notice is properly provided as to the alibi defense.'' Commonwealth v. Poindexter, 435 Pa. Super. 509, 530, 646 A.2d 1211, 1221 (1994). Further: 9 Pa.R.Crim.P. 305 states in pertinent part: C. Disclosure by the Defendant ( 1) Mandatory: (a) Notice of Alibi Defense: A defendant who intends to offer the defense of alibi at trial shall, at the time required for filing the omnibus pretrial motion under Rule 306, file of record notice signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense. Such 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 witnesses whom the defendant intends to call in support of such claim. (d) If the defendant fails to file and serve notice of alibi defense . . . the court at trial may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, or may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require. 21 Rule 305 C(l)(d) gives a trial court three options when a defendant fails to file and serve notice of an alibi defense: (1) the court may exclude entirely any evidence offered by the defendant in the form of alibi witnesses other than defendant himself; (2) the court may grant a continuance for the purpose of further investigation by the Commonwealth; or (3) the court may make such other order as the interests of justice require. Commonwealth v. Fernandez, 333 Pa. Super. 279, 289-90, 482 A.2d 567, 572 (1984). Upon review of the record, the Defendant failed to provide notice of an alibi defense to the Commonwealth before he testified under direct examination by his attorney. The guilt phase of the jury trial commenced on January 11, 2012, and concluded on January 23, 2012. It was not until after the Commonwealth rested its case that the Defendant attempted to testify regarding an alibi defense. This trial court was unable to find any evidence that the Defendant informed the Commonwealth or the trial court of his intention to present an alibi defense until he began testifying to same under direct examination on January 23, 2012. It is clear to this trial judge that a defendant has the right to testify about an alibi defense even though he or she has not filed any formal written notice with the clerk of courts. As aforementioned, Pa.R.Crim.P. 567(8)(1) provides, "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.... " (Emphasis added). Further, Pa.R.Crim.P. 567(0) states, "A defendant may testify concerning an alibi notwithstanding that the defendant has not filed a notice.... " Indeed, the appellate courts have noted that a defendant may testify about an alibi defense despite that fact that they did not file any written notice; failure to file such notice only precludes the testimony of other witness who may corroborate a defendant's testimony. See Commonwealth v. Nelson, 389 Pa. Super. 417, 424, 567 A.2d 673, 677 (1989). 22 Consequently, Defendant's argument that the trial court erred when it granted Commonwealth's objection to Defendant's testimony about an alibi has merit. Conclusion Based on the foregoing, this Court finds that all of the Matters Complained of on Appeal lack merit save the matter complained of in paragraph #20. 23 .: Circulated 06/14/2016 11:08 AM IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA CRIMINAL DIVISION COMMONWEAL TH OF PENNSYLVANIA, vs. CP-63-CR-0000357-2011 541 WDA 2012 MICHAEL J. DUNCAN, Defendant/ Appellant. 1925 OPINION This case having been heard by Judge Janet Moschetta Bell who retired effective January 4, 2013, and a Concise Statement of Matters Complained of on Appeal having been filed on October 9, 2012, this Court authors the following 1925(a) opinion on the legal issues raised on appeal. (Docket 95). This Court is not in a position to opine on fact and credibility determinations. See Armbruster v. Horowitz, 572 Pa. 1, 813 A.2d 698 (2002); Commonwealth v. Yogel, 307 Pa.Super. 241, 243, 453 A.2d 15, 16 (Pa.Super.1982) (holding that"[ w]here the issue involved is one purely of law, the fact that someone other than the hearing judge wrote the opinion would be of little significance"). Id. at 16. Defendant filed an appeal to the Superior Court of Pennsylvania from the Court's Order of Sentence dated March 2, 2012 and filed March 5, 2012 in which, after a jury trial, defendant was found guilty of Criminal Homicide - Murder in the First Degree, a felony of the first degree, cP '.\··' 1 Qla.d.'~~,,A. § 2501(a); and, Criminal Conspiracy to Commit Homicide-Murder in the First ().De~e, afelony of the first degree, 18 Pa.C.S.A. § 903. (Docket 4, 71). \..\-\ '-~ : ~ 1? \;. ),1,}. \)..... -;?., (¥) < ·,> ;.,,,-- The trial court sentenced the defendant as follows: 1. Criminal Homicide, Murder in the First Degree, to pay his pro rata share of restitution of $226.50 to the Pennsylvania State Police (PSP) Harrisburg Laboratory; to complete all rehabilitative treatment recommended by the Pennsylvania Department of Corrections (DOC); and to be sentenced to a state prison for a mandatory period of life imprisonment. (Docket 4 ). 2. Criminal Conspiracy to Commit the Crime of Homicide, Murder in the First Degree, to pay his pro rata share of restitution of $226.50 to the PSP Harrisburg Laboratory; to pay his pro rata share of restitution of $1,842.50 to the PSP Greensburg Regional Laboratory; to complete all rehabilitative treatment recommended by the DOC; and to be sentenced to a state prison for a minimum of fifteen (15) years to a maximum of thirty (30) years consecutive to Count One above. (Docket 4). The defendant's aggregate sentence was life in prison plus a consecutive fifteen to thirty (15-30) years. (Docket 4). Defendant filed a Notice of Appeal to the Pennsylvania Superior Court on March 22, 2012. (Docket 76). Eventually, on August 22, 2012, the Court granted Attorney David S. Shrager's Motion to Withdraw as Counsel and appointed conflicts counsel, Jeffrey A. Watson, Esq., to represent defendant Duncan on appeal. (Docket 93). Appellate counsel Watson was directed to file a Concise Statement oflssues on Appeal pursuant to Pa.R.A.P. l 925(b) in the same Order. (Docket 93). After the granting of a time extension, Attorney Watson filed his Concise Statement of Matters Complained of on Appeal on October 9, 2012, a twenty-page document containing fifty-seven (57) separate allegations of issues complained of on appeal.' (Docket 95). Attorney Watson is no longer appellate counsel as he accepted an appointment as an administrative law judge; Attorney Mary Bates was appointed as defense appellate counsel as of I Due to the excessive length of defendant's Concise Statement, the Court will not quote it verbatim or attach a copy of it to this Opinion, but rather, will reference it by Paragraph/Issue number. (Docket 95.). 2 January 2, 2013. (Docket 96). Wherever possible, the Court in its response to the numerous allegations of matters complained of on appeal will reference specific paragraphs numbers from the 1925(b) statement and proceed in as logical and organized a manner as possible. Further, the Court will incorporate sections of its 1925 Opinion in the case of the co-defendant, John Ira Bronson, Jr., filed at 560 WDA 2012, where relevant and appropriate as the first eleven (11) issues in defendant Duncan's 1925(b) statement are nearly identical to the eleven (11) issues which constitute the whole of defendant Bronson's 1925(b) statement. Factual Background John Lynn Newman ("Newman") was shot to death on February 3, 2003, in California, Pennsylvania. (Trial Transcript ["T.T."] 123). On January 24, 2012, a jury found that Newman's death was the result of a conspiracy and solicitation between John Ira Bronson, Jr. ("Bronson"), the defendant herein, and his co-defendant at trial, Michael J. Duncan ("Duncan"). (Docket 67). Any complete summary of the facts for the intervening nine years must begin with the circumstances that led to this conspiracy and solicitation. In 2002, Newman was approached by the PSP and informed "that he had been investigated and [that] felony drug charges against him [were] pending." (T.T. 733). In October of that year, Trooper Aaron Borello ("Trooper Borello") approached Newman about becoming a confidential informant ("C.1.") for the PSP. (T.T. 733). Trooper Borello and Newman then set about performing a bust involving Newman's supplier, Bronson. (T.T. 736: 22). After Bronson was observed selling 200 pills of Oxycodone to Newman, he was arrested. (T.T. 737: 20). The PSP searched Bronson's home and found about $384,000 in cash which was seized.2 (T.T. 748: 15). 2 Bronson eventually pied guilty to drug trafficking and was incarcerated. (T.T. 1777 - 1778). 3 After his arrest, Bronson began acting as a C.I., first with the PSP and then for the Federal Bureau oflnvestigation ("F.B.I.") (T.T. 883: 22-25). While working with the PSP, Bronson asked Trooper Borello directly if it was Newman who had informed on him. (T.T. 755- 756). Unfortunately, Bronson's participation as a C.I. was fruitless and ended "within a week" prior to Newman's death. (T.T. 888: 25). At some point after Bronson's arrest, Duncan 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." (T.T. 1467: 21-22). Irwin then witnessed, at his home, a meeting between Duncan, Bronson, and Bowman, a drug dealer and associate of Bronson. (T.T. 1466: 7-14). During the meeting, Bronson asked Duncan to kill Newman and Duncan agreed. Bronson asked Bowman to cooperate in the killing, but Bowman declined. (T.T. 1031: 7-18). Prior to Newman's death, Robert Bedner ("Bedner") called Brian Dzurco ("Dzurco"). (T.T. 1213). Phone records revealed that the call occurred on January 20, 2003, about two weeks before the death of the victim. (T.T. 1238: 22-23). Bedner put Bronson on the phone with Dzurco, who asked Dzurco to set up a meeting with Newman. (T.T. 1226). Dzurco agreed because he believed the matter to be related to a drug debt. After receiving information that the meeting might be fatal for Newman, Dzurco chose not to arrange it. (T.T. 1230, 1231). Shawn Geletei ("Geletei") testified that, while in jail, Duncan approached him and bragged about his intention to murder Newman. He recalled that the conversation was prior to Newman's death. Geletei specifically testified: [Duncan] come over and asked if I knew Newman. I said, yeah. He says, I'm going to take his ass out. And he started saying something about Bronson 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. (T.T. 794:4-12). 4 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 Newman's cell phone to Brian Homer ("Homer"), which lasted 3 minutes and 19 seconds. (T.T. 571: 5-12). Sometime before 8:00 p.m. Newman asked his wife for $300.00, ostensibly for cartons of cigarettes, but was, most likely, to buy heroin. (T.T. 103: 7-12). At 7:56 p.m. a call was made from Newman's cell phone to Homer, which lasted 1 minute and 9 seconds. (T.T. 571: 17-23). Sometime after receiving the money, Newman left the house. (T.T. 74: 11-25). He met Geletei in the alley between their houses to discuss acquiring Oxycodone. Geletei told Newman that he could not locate any Oxycodone. Newman told Geletei that he was going to meet Homer. (T.T. 786-787). Upon returning home, Newman informed his wife that Horner needed a ride and he left again. (T.T. 75: 6-10). At 8:08 p.m. Newman called a drug client named Amelia Pajerski ("Pajerski"). (569: 24-25). At approximately 8:30 p.m. Newman sold Pajerski stamp bags of heroin. (T.T. 320-321 ). He told Pajerski that the heroin was from Homer. (T.T. 331: 4-5). Pajerski specifically recalled being home in time to watch a favorite show by 9:05 p.m. (T.T. 320-321). At approximately 9:00 p.m. Newman's daughter heard the distinctive sound of her father's car pass by their house. (T.T. 76-77). At 9:03 p.m. Newman called Geletei's landline, which lasted for 6 seconds. Thereafter, Newman 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. (T.T. 130-131). Next, the record reveals the events of February 4, 2003, as follows: Early in the morning, Newman'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. (T.T. 78:4-12). Upon returning to the car with Mrs. Newman, they found the victim dead and contacted the authorities. (T.T. 104-105). The police searched the scene and located a spent bullet casing inside the car, (T.T. 143: 10), and an 5 unfired cartridge outside of the vehicle. (T.T. 175: 18). Newman had $115.00 in cash, (T.T. 185: 18-21 ), a marijuana "roach", (T.T. 1620:19), a cell phone, (T.T. 1620:20), and ten packets of heroin. (T.T. 1620:18). Around 12:00 p.m. Ryan Givens called Duncan to inform him that Newman had been killed, to which Duncan responded, "snitches get dealt with." (T.T. 1280: 10). The authorities took Horner in for questioning and tested his hands for gunshot residue. The results allowed the tester to state "that [Homer J could have fired a gun, could have come in contact with something that had gunshot primer residue on it," (T.T. 664: 12-14), or "that [Homer] was in very close proximity to a firearm when it was discharged." (T.T. 690: 8-l 0). 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 Duncan to wire money to him while on vacation. (T.T. 1471: 5-10). The money, being $931.00, was transferred on March l 0, 2003. (T.T. 1639: 17-21). Also in early March, Duncan 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. Duncan opened a safe located within the Hull residence, to which only he and Irwin had access. At that time, Duncan was heard making a call. (T.T. 1353: 16-23). The exact nature of the call was unclear. However, Hull, who was admittedly high on crack at the time, recalled hearing Duncan speak about shooting someone. (T.T. 1355: 25; 1356: 3-4). Duncan, who appeared "giddy, nervous, [and] agitated," (T.T. 1353: 18), pointed a gun in Hull's face before leaving. (T.T. 1375: 17-18). When Irwin later returned from vacation, he discovered that Duncan had "disappeared". {T.T. 1471: 18). Irwin found 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. (T.T. 1472: 8-14; 1592: 19-20). 6 In April of 2003, while on furlough, Bowman spoke with Duncan, who told Bowman that he killed Newman, and explained the manner in which he did it, (T.T. 1032: 11-12). Duncan told Bowman that he was in the rear of Newman's car and shot him in the left ear. (T.T. 1032: 19-21). Between April and June of 2003, Bowman had a three-way call with a woman and Duncan. (T.T. 1105). Again, Duncan admitted that he killed Newman. (T.T. 1113:5-8).3 In September of 2003, PSP Trooper James Monkelis ("Trooper Monkelis") and Trooper Beverly Ashton ("Trooper Ashton") interviewed Duncan. (T.T. 1639-1640). He denied having ever been in California, PA, and denied knowing Newman. (T.T. 1640: 16, 24). When told of Newman's death, Duncan said that he did not "whack" him, despite not being told the nature of Newman's death.4 (T.T. 1641: 8). Duncan also identified Newman as a snitch. (T.T. 1641: 15). Newman's role as a C.I. had not been released to the public. (T.T. 1641: 16-25). Duncan made other inculpatory statements, such as: 1. Stating that "hypothetically" someone, implying Newman, owed someone else, implying Bronson, a lot of money. (T.T. 1641: 8-12). 2. Stating that he could not do the time and worrying that he would rather not be "45, 46 or46,47attheclubs."(T.T.1642: 15-16). 3. In response to the interviewer stating that it might have been self-defense, he stated "come on, man, you seen that crime scene, it couldn't have been self defense.t" (1643: 14-15). In late 2003, a former corrections officer, Eric DeLong ("DeLong"), encountered Duncan in a bar. (T.T. 847: 16-20). Delong overheard Duncan state, "yeah, I popped that guy in the 3 The Court notes that the testimony regarding this call was elicited from Bowman on cross-examination. Defense counsel asked Bowman "you are saying .... that [Duncan] 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 I'm telling the jury." (T.T. 1078-1079). 4 The Court notes that it was public knowledge that Newman had been killed. 5 The Court notes that no crime scene photos had been released at the time of the interview. (T.T. 1643: 16-20). 7 back of the head [in] California." (T.T. 850: 9-12). A few days later, DeLong reported this incident to the PSP, who put him in touch with the FBI. (T.T. 851: 5-8). Despite this report, DeLong "didn't hear anything for, approximately, seven years." (T.T. 851: 7-8). Approximately two and a half years after Irwin first discovered that Duncan had fled California, PA, he finally spoke to Duncan. When Irwin asked Duncan why he had left California, PA, Duncan gave his reasons, admitting to killing Newman and also to Homer's involvement. Duncan told Irwin that "Brian Homer was running [Duncan's] name about being involved in the homicide and [Homer] was actually the one that ... brought [Newman] out [of] the house and ... brought him to the car. And [Duncan] was in the car and [Duncan] whacked [Newman]." (T.T. 1472: 22-25; 1473: 3-4). Duncan went on to tell Irwin that he "whacked," or killed, Newman because he was a "snitch". (T.T. 1473: 11-13). In January 2011, Duncan was arrested in Amherst, Ohio. He was interviewed again by Trooper Monkelis (T .T. 1644: 4- 7), and again made inculpatory statements. He stated that "snitches get dealt with." (T.T. 1645: 4). He stated that "he never owned or carried that caliber of a weapon.:" (T.T. I 645: 5-6). After the interview, Duncan was transported back to Pennsylvania. Duncan, while en route, spoke in further detail about his views on snitches, saying that even "God doesn't like snitches." (T.T. 1646: 5-21). In August of 2011, Bronson was housed in the Washington County Correctional Facility ("WCCF") in connection with being charged in this case. In December of 2011, Bronson admitted to Michael McCarthy, a fellow inmate, that he attended the 2002 meeting with Duncan and Bowman at Irwin's house. (T.T. 1428: 12-13). He admitted that the meeting concerned "offing", or killing, Newman. (T.T. 1429: 15-16). McCarthy then reported the conversation to the authorities. (T.T. 1429: 20-23). 6 The Court notes that the caliber of the weapon was never released. (T.T. 1645: 7-12). 8 Procedural History These charges were initiated with a Washington County Grand Jury Presentment dated December 8, 2010, recommending that Michael J. Duncan, John Ira Bronson, Jr., and Howard Edward Irwin, Jr. be charged with specific crimes. The recommendation with respect to Michael J. Duncan was Count One: Criminal Homicide, 18 Pa.C.S.A. § 2502(a), First Degree Murder, and Count Two: Criminal Conspiracy, 18 Pa.C.S.A. § 903. (Docket 6). On January 13, 2011, by Order of this Court, the Commonwealth was granted leave to disclose the Presentment as an attachment to the affidavit of probable cause to an issuing authority and the Presentment was ordered unsealed and filed with the Clerk of Courts of Washington County. (Docket 6). Charges were filed on January 13, 2011. Defendant Duncan's preliminary arraignment was held on January 14, 2011, and after a preliminary hearing on February 2, 2011, defendant was held for court on both charges. (Docket 10). The case was assigned to now-retired Judge Janet Moschetta Bell and she conducted a formal arraignment on April 14, 2011. (Docket 11, 18). The Commonwealth filed its two-count Criminal Information on April 7, 2011. (Docket 12). On May 6, 2011, Attorney David S. Shrager filed a formal entry of appearance on behalf of defendant and entered a plea of not guilty on all charges on defendant's behalf. (Docket 14). On July 8, 2012, defense counsel filed a Motion to Produce Additional Discovery and for an Extension of Time to File Pre-Trial Motions. (Docket 19). The Court granted that Motion by Order dated July 8, 2012. (Docket 19). The Commonwealth filed a Discovery Response on July 25, 2011. (Docket 20). On August 26, 2011, defense counsel filed a Motion for Extension of Time to File Pre-Trial Motions and that Motion was granted by Court Order. (Docket 21). On August 31, 2011, upon request of the Warden of the WCCF and for administrative and security reasons, the Court issued an Order permitting the transfer of defendant Duncan from the WCCF to the Fayette County Jail. (Docket 22). 9 Defense counsel filed an Omnibus Pretrial Motion - Motion to Compel the Grand Jury Transcript and by Order dated September 22, 2011, this Court granted that Motion compelling the Commonwealth to tum over the Grand Jury Testimony. (Docket 23). The Commonwealth did so without objection. Also on September 22, 2011, defense counsel filed numerous Omnibus Pre-Trial Motions, Motions in Limine, and other miscellaneous motions separately: Motion to Transfer (Docket 24 ); Omnibus Pre-Trial Motion - Motion to Suppress (Docket 25); Omnibus Pre-Trial Motion - Motion to Suppress Extra-Judicial Statements (Docket 26); and seven (7) different Omnibus Pre-Trial Motions - Motions in Limine (Docket 27-33). The Court scheduled all of these Pre-Trial Motions for a hearing on October 27, 2011. The Commonwealth filed its responses to the numerous defense pre-trial motions listed above in Docket 37-48. Meanwhile, the Commonwealth on September 30, 2011, filed a Motion to Consolidate all three pending cases, Commonwealth of Pennsylvania v. Michael J Duncan, 357-2011; Commonwealth of Pennsylvania v. John Ira Bronson, Jr., 2217-2011; and, Commonwealth of Pennsylvania v. Howard Edward Irwin, Jr., 358-2011. (Docket 35). The Commonwealth's Motion was scheduled for argument on October 21, 2011; all defense attorneys presented arguments against the consolidation while the Commonwealth argued in favor of its Motion. (Docket 34). The Motion to Consolidate all three cases was granted by Court Order dated October 25, 2011. (Docket 36). After a hearing and arguments on October 27, 2011, addressing the numerous pending defense pre-trial motions, the Court issued a lengthy Order dated October 31, 2012, denying or granting the pending motions. (Docket 49). In Docket numbers 50 and 52, the Commonwealth filed Supplemental Discovery Responses. The Court filed an Order scheduling the consolidated cases of Commonwealth v. Michael J. Duncan and Commonwealth v. John Ira Bronson, Jr. for jury trial on January 9, 2012. (Docket 51). The third co-defendant, Howard Edward Irwin, Jr., 10 pursuant to a plea agreement, pied guilty to one count of Hindering Apprehension or Prosecution -False Information to Law Enforcement, a felony of the third degree, 18 Pa.C.S.A. § 5105(a)(5), on December 14, 2011. Irwin testified in the Commonwealth's case-in-chief in the consolidated cases of Commonwealth of Pennsylvania v. Michael J Duncan and Commonwealth of Pennsylvania v. John Ira Bronson, Jr. On December 2, 2011, Attorney Shrager filed three additional Omnibus Pre-trial Motions - Motion in Limine (Docket 53-55) which the parties agreed did not require a scheduled hearing but would be considered at the appropriate time during trial. On December 8, 2011, the Court issued a Case Management Order. (Docket 56). The Commonwealth filed additional Supplemental Discovery Responses on December 12 and December 15, 2011. (Docket 57-58). On December 19, 2011, the Commonwealth filed its Proposed Jury Questionnaire and Voir Dire. (Docket 59). The Commonwealth also filed a Motion in Limine # 1 (Docket 60) which was heard by the Court on December 20, 2011. The Court issued an Order on December 2 7, 2011, granting the Commonwealth's Motion in Limine # 1. (Docket 62). The cases were scheduled for a final pre-trial conference on January 3, 2012. (Docket 61). On December 29, 2011, defense counsel filed his Proposed Voir Dire Questions. (Docket 63). The Commonwealth filed additional Supplemental Discovery Responses on January 5, 2012 (Docket 64), January 6, 2012 (Docket 65), and January 9, 2012 (Docket 66). On January 10, 2012, the Court issued an Order denying Attorney Shrager's oral motion to sanction the Commonwealth for the alleged late discovery of a Western Union document citing Pa.R.Crim.P. 573(0) and (E) and the lack of a showing of prejudice to the defendant. (Docket 67). On January 12, 2012, defense counsel filed another Omnibus Pre-Trial Motion-Motion to Suppress Statement (Docket 68) for which the Court issued an Order dated January 12, 2012, after hearing arguments of counsel on January 10-11, 2012. In that Order, the Court denied 11 defense counsel's request that the defendant's video and recorded statements of January 14, 2011, be suppressed citing pertinent case law and the Court's rationale. (Docket 69). Jury selection began on January 9, 2012, and was completed on January 10, 2012. The jury trial commenced on January 11, 2012, and concluded on January 23, 2012. The jury was charged on January 24, 2012, and on the same date, found Michael J. Duncan guilty on both counts, Criminal Homicide - Murder in the First Degree and Criminal Conspiracy to Commit Criminal Homicide - Murder in the First Degree. (Docket 71). On March 2, 2012, the Court sentenced the defendant to state prison for an aggregate sentence oflife in prison plus a consecutive fifteen to thirty (15~30) years. (Docket 74). On March 22, 2012, Attorney Shrager filed a Notice of Appeal to the Pennsylvania Superior Court. (Docket 76). On April 2, 2012, the Court issued its 1925(b) Order requesting the filing of a Concise Statement of Matters Complained of on Appeal. (Docket 78). Upon request of defense counsel, the Court granted Attorney Shrager two continuances to file his Concise Statement. (Docket 80, 91). Upon receipt of and payment for the approximate 2,000 page trial transcript by defense counsel, the Court granted Attorney Shrager' s Motion to Withdraw as counsel for Michael J. Duncan on August 22, 2012, and in the same order, appointed Attorney Jeffrey Watson to represent the defendant on appeal and to file defendant's l 925(b) statement. (Docket 93). With no objection from the Commonwealth, the Court granted Attorney Watson's Motion for Extension of Time to File Concise Statement filed September I 0, 2011. (Docket 94 ). On October 9, 2012, Attorney Watson filed a twenty (20) page Concise Statement of Matters Complained of on Appeal. (Docket 95). This Court issued an Order on January 2, 2013, appointing Attorney Mary Bates to represent the defendant on appeal as Attorney Watson had accepted a position as an administrative law judge. (Docket 96). On January 4, 2013, the trial judge, the Honorable Judge Janet Moschetta Bell, retired after seven (7) years on the bench. 12 7 Legal Analysis Paragraphs 1-4, 11 (Weight and Sufficiency of the Evidence) In the instant case, defendant was convicted of Criminal Homicide - Murder of the First Degree, 18 Pa.C.S.A. § 250l(a), 2502(a), and Criminal Conspiracy to Commit Murder of the First Degree, 18 Pa.C.S.A. § 903(c). He claims that the evidence presented at trial by the Commonwealth was not sufficient to prove the defendant's guilt beyond a reasonable doubt on the charges of Homicide and Conspiracy. He also claims that the evidence presented was insufficient to establish the required specific intent. (Docket 95). Defendant challenges the verdict as being against the weight of the evidence. In so doing, he "concedes that there is sufficient evidence to sustain the verdict." Commonwealth v. Whiteman, 485 A.2d 459 (Pa. 1984). In ruling on a motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, a trial court need not view the evidence in a light most favorable to the verdict winner. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). The determination of whether the verdict is in fact against the weight of the evidence is left to the discretion of the trial court. Id. In making its determination, the trial court may evaluate the credibility of witnesses and evidence. Commonwealth v. Vogel, 461 A.2d 604, 609 (Pa. 1983). The jury, through their verdict, decided on the credibility of the witnesses and evidence at trial. They found that the weight of the evidence supported a conviction herein. This Court is unable to supplement the record with further explanation of the jury's credibility determinations. See Armbruster, 813 A.2d 698; Yogel, 453 A.2d at 16. 7 Attorney Jeffrey Watson filed a Concise Statement of Matters Complained of on Appeal in the instant case on October 9, 2012. The document was twenty-one (21) pages long, nineteen (19) of which contained a list of fifty- seven (57) separate issues raised on appeal. The trial court strongly considered applying the doctrine of waiver based on the number and vagueness of issues presented in the document, but decided to address the non-redundant, non- frivolous issues to th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4013972. Public record. Not legal advice.