Com. v. Bronson, J.

J-A19002-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JOHN IRA BRONSON, JR.,

Appellant No. 560 WDA 2012

Appeal from the Judgment of Sentence Entered March 2, 2012
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0002217-2011

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 1, 2014

Appellant, John Ira Bronson, Jr., appeals from the judgment of

sentence of life imprisonment1 following his conviction for first degree

murder, criminal conspiracy, and criminal solicitation. Appellant claims that

the evidence was not sufficient to support his conviction and that the verdict

was against the weight of the evidence. He also contends that the trial court

erred in permitting the consolidation of his case with that of his co-

conspirator, Michael Duncan. Additionally, he asserts that the trial court

erred in permitting the Commonwealth to call a witness, Robert Bedner,

where Appellant contends that the Commonwealth’s sole purpose for calling
____________________________________________

*
Former Justice specially assigned to the Superior Court.
1
Appellant was also sentenced to a consecutive term of 10–20 years’
incarceration.
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the witness was to impeach him with a recording of a recanted out-of-court

statement. Finally, Appellant claims that the trial court erred by denying his

motion to compel the Commonwealth to disclose records concerning the

victim’s work as a confidential informant. After careful review, we affirm.

The trial court summarized the facts adduced at trial as follows:

John Lynn Newman (“Newman”) was shot to death on
February 3, 2003, in California, Pennsylvania. On January 24,
2012, a jury found that Newman’s death was the result of a
conspiracy and/or solicitation between [Appellant] … and his co-
defendant at trial, Michael Clark Duncan (“Duncan”). Any
complete summary of the facts for the intervening nine years
must begin with the circumstances that led to this conspiracy
and/or solicitation.

In 2002, Newman 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 Newman about becoming a confidential informant
(“C.I.”) for the PSP. Trooper Borello and Newman then set
about performing a buy/bust involving Newman’s supplier,
[Appellant]. After [Appellant] was observed selling 200 pills of
Oxycodone to Newman, he was arrested. The PSP searched
[Appellant]’s home and found about $384,000 in cash which was
seized.1

__________
1
[Appellant] eventually pled guilty to drug trafficking and
was incarcerated.
__________

After his arrest, [Appellant] began acting as a C.I., first with
the PSP and then for the Federal Bureau of Investigation
(“F.B.I.”). While working with the PSP, [Appellant] asked
Trooper Borello directly if it was Newman who had informed on
him. Unfortunately, [Appellant]’s participation as a C.I. was
fruitless and ended “within a week” prior to Newman's death.

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At some point after [Appellant]’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.” Irwin then witnessed, at his home, a meeting
between Duncan, [Appellant], and Bowman, a drug dealer and
associate of [Appellant]. During the meeting, [Appellant] asked
Duncan to kill Newman and Duncan agreed. [Appellant] asked
Bowman to cooperate in the killing, but Bowman declined.

Prior to Newman'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 the victim. Bedner put [Appellant] on the phone with
Dzurco, who asked Dzurco to set up a meeting with Newman.
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. 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 [Appellant] 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 Newman's cell phone to
Brian Horner (“Horner”), which lasted 3 minutes and 19 seconds.
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. At 7:56 p.m.[,] a call was made from
Newman's cell phone to Horner, which lasted 1 minute and 9
seconds. Sometime after receiving the money, Newman left the
house. He met Geletei in the alley between their houses to
discuss acquiring Oxycodone. Geletei told Newman that he could

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not locate any Oxycodone. Newman told Geletei that he was
going to meet Horner.

Upon returning home, Newman informed his wife that Horner
needed a ride and he left again. At 8:08 p.m.[,] Newman called
a drug client named Amelia Pajerski (“Pajerski”). At
approximately 8:30 p.m.[,] Newman 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.[,]
Newman's daughter heard the distinctive sound of her father's
car pass by their house. 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.

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. Upon
returning to the car with Mrs. Newman, they found the 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. Newman had $115.00 in
cash, a marijuana “roach”, a cell phone, and ten packets of
heroin. 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.” 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 Duncan to wire money to him
while on vacation. The money, being $931.00, was transferred
on March 10, 2003. 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.

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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. 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.
Duncan, who appeared “giddy, nervous, [and] agitated,” pointed
a gun in Hull's face before leaving.

When Irwin later returned from vacation, he discovered that
Duncan had “disappeared[.”] Irwin f[ound] that the safe had
been emptied. The safe’s contents, being money, drugs and a
nine millimeter (9 mm) pistol, were missing, and only a cell
phone was left behind.

In April of 2003, while on furlough, Bowman spoke with
Duncan, who told Bowman that he killed Newman, and explained
the manner in which he did it. Duncan told Bowman that he was
in the rear of Newman'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 Duncan. Again, Duncan admitted that he
killed Newman.2

___________
2
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 l’m telling the jury.”
___________

In September of 2003, PSP Trooper James Monkelis (“Trooper
Monkelis”) and Trooper Beverly Ashton (“Trooper Ashton”)
interviewed Duncan. He denied having ever been in California,
PA, and denied knowing Newman. When told of Newman's
death, Duncan said that he did not “whack” him, despite not
being told the nature of Newman's death.3 Duncan also
identified Newman as a snitch. Newman's role as a C.I. had not
been released to the public. Duncan made other inculpatory
statements, such as:

1. Stating that “hypothetically” someone, implying
Newman, owed someone else, implying [Appellant], a lot
of money.

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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, he stated “come on, man, you seen that
crime scene, it couldn’t have been self[-]defense.”4

___________
3
The Court notes that it was public knowledge that
Newman had been killed.
4
The 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 Duncan in a bar. DeLong overheard
Duncan 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 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 Horner’s involvement. Duncan told Irwin
that “Brian Horner was running [Duncan's] name about being
involved in the homicide and [Horner] 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].” Duncan went on to tell Irwin that he “whacked,” or
killed, Newman because he was a “snitch".

In January 2011, Duncan was arrested in Amherst, Ohio. He
was interviewed again by Trooper Monkelis[,] and again made
inculpatory statements. He stated that “snitches get dealt with.”
He stated that “he never owned or carried that caliber of a
weapon.”5 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.”

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In August of 2011, [Appellant] was housed in the Washington
County Correctional Facility ("WCCF") in connection with being
charged in this case. In December of 2011, [Appellant] admitted
to Michael McCarthy, a fellow inmate, that he attended the 2002
meeting with Duncan and Bowman at Irwin's house. He
admitted that the meeting concerned “offing[,”] or killing,
Newman. McCarthy then reported the conversation to the
authorities.

__________
5
The Court notes that the caliber of the weapon was never
released.

Trial Court Opinion (TCO), 3/26/13, at 2-8 (internal citations omitted).

On December 8, 2010, a grand jury issued a presentment

recommending that charges be filed against Appellant, Duncan, and Irwin for

their participation in a conspiracy to kill Newman (victim). On August 10,

2011, following the recommendations of the grand jury, the Commonwealth

charged Appellant by criminal complaint with criminal homicide, criminal

solicitation (homicide), and criminal conspiracy (homicide). The

Commonwealth filed a motion to consolidate Appellant’s case with Duncan’s

and Irwin’s. The trial court granted joinder, over Appellant’s objections, on

October 25, 2011.

Appellant’s jury trial began on January 11, 2012, and concluded on

January 23, 2012. On January 24, 2012, the jury found Appellant guilty of

first degree murder, criminal conspiracy (first degree murder), and criminal

solicitation (first degree murder). On March 2, 2012, Appellant was

sentenced to a mandatory term of life imprisonment without the possibility

of parole for first degree murder, a consecutive term of 10-20 years’

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incarceration for criminal solicitation, and no further penalty for his

conspiracy conviction. Appellant did not file any post-sentence motions.

On March 30, 2012, Appellant filed a timely notice of appeal. By order

dated April 2, 2012, the trial court directed Appellant to file a Pa.R.A.P.

1925(b) statement of errors complained of on appeal. Appellant requested,

and was granted, several extensions of time while the notes of testimony

were being produced. He then filed a timely Rule 1925(b) statement on

September 10, 2012. The trial court issued its Rule 1925(a) opinion on

March 26, 2013. Appellant now presents the following issues for our review:

1. Whether the testimony and evidence introduced by
the Commonwealth at the time of [Appellant]’s trial was
insufficient to establish [Appellant]’s guilt regarding the
charges of Criminal Homicide, Murder in the First Degree,
Criminal Conspiracy and Criminal Solicitation beyond a
reasonable doubt[?]

2. Whether the testimony and evidence offered by the
Commonwealth at the time of trial established that the
[Appellant] committed a premeditated killing sufficient to
justify a finding of “Guilty” of Criminal Homicide, Murder in
the First Degree, Criminal Conspiracy and Criminal
Solicitation[?]

3. Whether the testimony and evidence offered by the
Commonwealth at the time of trial established that
[Appellant] engaged in a criminal conspiracy to commit
murder with the co-defendant, Michael Duncan, and
whether the testimony and evidence established that
[Appellant] acted as an accomplice in said murder[?]

4. Whether the testimony and evidence offered by the
Commonwealth at the time of trial established that
[Appellant] engaged in a criminal solicitation to commit
murder with the co-defendant, Michael Duncan, or whether
the testimony and evidence establish[ed] that [Appellant]
acted as an accomplice in said murder[?]

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5. Whether the Court erred/abused its discretion in
granting, over [Appellant]’s objection, the
Commonwealth's Motion to Consolidate for the Purpose of
Trial case nos. 2217-2011 (Commonwealth v. John Ira
Bronson, Jr.) and 357-2011 (Commonwealth v.
Michael Duncan) where the complexity of the evidence
as offered against the Defendants was likely to have
caused the jury to be unable to distinguish the evidence or
apply the law as to the charges separately against each
Defendant[?]

6. Whether the Court erred/abused its discretion in
granting, over [Appellant]’s objection, the
Commonwealth's Motion to Consolidate For the Purpose of
Trial case nos. 2217-2011 (Commonwealth v. John Ira
Bronson, Jr.) and 357-2011 (Commonwealth v.
Michael Duncan) where evidence submitted against …
Michael Duncan … would not have been relevant or
admissible in the trial of [Appellant], if tried alone, and
where the jury was likely to consider said evidence against
him even notwithstanding admonitory instructions[?]

7. Whether the Court erred/abused its discretion in
granting, over [Appellant]’s objection, the
Commonwealth's Motion to Consolidate For the Purpose of
Trial case nos. 2217-2011 (Commonwealth v. John Ira
Bronson, Jr.) and 357-2011 (Commonwealth v.
Michael Duncan) where antagonistic defenses between
the Defendants were present and prejudice resulted to
[Appellant][?]

8. Whether the Court erred/abused its discretion in
permitting the Commonwealth to call as a witness Robert
Bedner, who recanted a previous out-of-court statement
during [Appellant]’s preliminary hearing, for the sole
purpose of impeaching Mr. Bedner with said previous out-
of-court statement[?]

9. Whether the Court erred/abused its discretion in
denying [Appellant]’s Petition to Compel pertaining to the
victim, John Lynn Newman's, Confidential Informant (CI)
File in possession of the Commonwealth, the contents of
which might have affected the outcome of trial if it were
shown that [Appellant] was not the only law enforcement
target against whom the victim informed upon, where said

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CI-target relationship was the basis for the
Commonwealth's arguing motive[?] [Appellant] could not
have received a fair trial without the disclosure and/or
admission of said evidence.

10. Whether the Court erred / abused its discretion in
refusing to render a judgment in favor of [Appellant] in the
form of a dismissal of the charges against [Appellant] at
the conclusion of the Commonwealth’s case at the time of
trial[?]

11. Whether the weight and sufficiency of the evidence
was insufficient to sustain a conviction against
[Appellant][?]

Appellant’s Brief at 4-10.

Weight of the Evidence

We begin by addressing Appellant’s weight of the evidence claim (issue

11). A weight of the evidence claim must be preserved either in a post-

sentence motion, by a written motion before sentencing, or orally prior to

sentencing. Pa.R.Crim.P 607. “Failure to properly preserve the claim will

result in waiver, even if the trial court addresses the issue in its opinion.”

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012).

There is nothing in the record to indicate that Appellant properly

preserved his weight of the evidence claim. The record reveals that

Appellant did not file a post-sentence motion in this case, nor did he file a

written motion presenting a weight claim prior to sentencing. There is also

no indication that Appellant ever raised the matter orally prior to sentencing.

Accordingly, Appellant’s weight of the evidence claim is waived.

Sufficiency of the Evidence

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Next we address Appellant’s sufficiency claims (issues 1, 2, 3, 4, 10

and 11). Appellant addresses all of these claims in his brief in a single

argument section. We will address these claims collectively, as well. After

stating the appropriate standards of review, Appellant’s entire argument is

as follows:

In the present case, the Commonwealth called more than
thirty witnesses, barely a third of which offered any testimony
relating to [Appellant]’s alleged involvement in a conspiracy to
murder Newman. After hearing and reviewing the testimony of
Trooper Borello and Attorney Comber, the Commonwealth's
theory as to motive with regards to [Appellant] does not hold
water. The Commonwealth would have the jury believe that
[Appellant] conspired to kill Newman in order to avoid
prosecution on federal drug charges, where even after Newman's
death, [Appellant] still pled guilty to said charges. Similarly, the
Commonwealth's theory as to the Solicitation charge regarding
Bedner rested on the testimony of Bedner and Dzurco. Bedner's
testimony was limited to a prior recorded audio statement made
by Bedner which he plainly admitted was very possibly a lie.
Dzurco's testimony with regards to his phone calls with Bedner
preceding Newman’s death similarly cannot be said to support
any reasonable inferences as he freely admitted that he could
not identify the third party he was talking to on the phone, and
in any event there were no discussions of hurting or killing
Newman.

The charges of Criminal Homicide, Criminal Conspiracy and
Criminal Solicitation with regards to [Appellant], his co-
Defendant, Michael Duncan, and Michael Bowman also cannot
stand and are not based on reliable evidence and/or reasonable
inferences drawn therefrom. Both Irwin and Bowman not only
made several statements to police without mentioning any
alleged meeting in Irwin's Daisytown home, they both made
statements directly contradicting their testimony at trial. What's
more, the affiant in the case, Trooper Monkelis admitted that as
of November 2010, the Pennsylvania State Police could not
prove to any degree of certainty that [Appellant] and his co-
defendant, Michael Duncan even knew each other.

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While the Commonwealth, as verdict winner, is entitled to
all reasonable inferences drawn from said testimony, no such
inferences can be drawn to sustain a conviction in the instant
case. It is apparent that [Appellant]’s conviction was not a
function of the jury drawing reasonable inferences from the
testimony they heard.

Appellant’s Brief at 22-23.

In reviewing Appellant’s claims concerning the sufficiency of the

evidence, we are mindful of the following standards:

“To sustain a conviction for criminal conspiracy, the
Commonwealth must establish the defendant: 1) entered into an
agreement to commit or aid in an unlawful act with another
person or persons; 2) with a shared criminal intent; and 3) an
overt act was done in furtherance of the conspiracy.”
Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super.
2011). “The conduct of the parties and the circumstances
surrounding such conduct may create a web of evidence linking
the accused to the alleged conspiracy beyond a reasonable
doubt.” Id. The conspiratorial agreement “can be inferred from
a variety of circumstances including, but not limited to, the
relation between the parties, knowledge of and participation in
the crime, and the circumstances and conduct of the parties
surrounding the criminal episode.” Id.

Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa. Super. 2013).

“A person is guilty of solicitation to commit a crime if with the intent of

promoting or facilitating its commission he commands, encourages or

requests another person to engage in specific conduct which would

constitute such crime or an attempt to commit such crime or which would

establish his complicity in its commission or attempted commission.” 18

Pa.C.S. § 902. ‘Criminal solicitation’ has been described by this Court as

being “an offer to enter into a conspiracy” to commit the crime solicited.

Commonwealth v. Carey, 439 A.2d 151, 155 (Pa. Super. 1981).

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The target crime of both the conspiracy and the solicitation charges in

this case is first degree murder. “A criminal homicide constitutes murder of

the first degree when it is committed by an intentional killing.” 18 Pa.C.S. §

2502(a). An “intentional killing” is a killing accomplished “by means of

poison, or by lying in wait, or by any other kind of willful, deliberate and

premeditated killing.” 18 Pa.C.S. § 2502(d).

Appellant’s sufficiency argument, reproduced above, is rife with straw

men and other forms of fallacious argumentation. For instance, he asserts

that “barely a third” of the thirty witnesses for the Commonwealth offered

testimony linking him to a conspiracy to kill the victim. Appellant’s Brief at

22. Such a statement concedes, implicitly, that at least ten witnesses did

link Appellant to the conspiracy. Similarly, Appellant constructs a fictional

motive and then strikes it down, but the motive he dismisses only vaguely

resembles the motive suggested by the Commonwealth. Appellant asserts

that “the Commonwealth would have the jury believe that [Appellant]

conspired to kill Newman in order to avoid prosecution on federal drug

charges, where even after Newman's death, the Defendant still pled guilty to

said charges.” Id. However, as the trial court notes, the victim’s “betrayal

[of Appellant] led to the loss of $300,000 in seized cash, the loss of

[Appellant’s] substantial drug business, and to [his] arrest, federal

conviction, and imprisonment. Thus, [Appellant] had a strong motive to

have the victim killed.” TCO, at 15.

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Nevertheless, none of the crimes for which Appellant was convicted

required proof of motive as an element of the offense. See

Commonwealth v. Briggs, 12 A.3d 291, 340 n.44 (Pa. 2011) (“It is well

established that the Commonwealth is not required, as a matter of law, to

prove the accused’s motive even where the offense charged is murder in the

first degree.”). Appellant’s conspiracy conviction did require proof of an

agreement to kill the victim, shared criminal intent to that end, and an overt

act in furtherance of the conspiratorial agreement. Appellant’s solicitation

conviction required proof that he presented an offer to others to join such a

conspiracy. As stated by the trial court, there was ample evidence proffered

by the Commonwealth at trial supporting each of these elements:

Here, several people testified that [Appellant] was actively
looking for someone to kill the victim. After [Appellant]’s arrest,
Duncan spoke with Irwin about another man, “Bowman, having
some type of hookup where he [could] make some money . . .
taking care of a snitch.” Irwin witnessed a meeting between
Duncan, [Appellant], and Bowman, at which [Appellant] asked
Duncan to kill Newman and Duncan agreed. Bowman testified
as to the meeting's purpose. The Court notes that of the four
men present at the meeting, two testified as to its purpose and
the two on trial denied it happened.

However, while housed at the WCCF, [Appellant] admitted to
Michael McCarthy, that he attended the above-mentioned 2002
meeting and that it concerned “offing”, or killing, Newman.
Duncan never explicitly stated, on the stand or in police
interviews, that [Appellant] had hired him to kill the victim.
However, in an interview he did state that “hypothetically”
someone owed someone else a lot of money. The statement
was clearly regarding the $300,000 that the victim had cost
[Appellant].

Further, Newman was murdered less than a week after
[Appellant] learned that his participation with the F.B.I. as a C.I.

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was ended and that, as a result, he would be facing his federal
drug trafficking charges. [Appellant] seemed to know that the
victim was responsible for his arrest, asking Trooper Borello
directly if it was Newman who had informed on him. Defense
counsel never satisfactorily addressed how Duncan knew that
the victim was a snitch, as he so often called him.

Ultimately, [Appellant]’s motives were simple. Newman's
betrayal led to the loss of $300,000 in seized cash, the loss of
his substantial drug business, and to [Appellant]’s arrest, federal
conviction, and imprisonment. Thus, [Appellant] had a strong
motive to have the victim killed.

When viewing the facts in the light most favorable to the
Commonwealth as verdict winner, the evidence and all
reasonable inferences derived therefrom are sufficient to
establish all elements of the offense of Solicitation to Commit
Murder in the First Degree beyond a reasonable doubt….

…

[Regarding his conviction for conspiracy, it was proven that
Appellant] intended to aid in the commission of the crime of
murder. He asked Dzurco to set up a meeting with the victim.
Dzurco agreed but later changed his mind upon learning that
[Appellant]’s intention was to kill Newman. In addition to
Dzurco, [Appellant] also asked Bedner to assist, but he also
declined.

As stated above, [Appellant] entered into an agreement with
Duncan to kill Newman and Duncan agreed. This occurred in
Irwin's home. Bowman, who attended the meeting, testified as
to its purpose. As noted, [Appellant] admitted to Michael
McCarthy that he attended the fateful meeting. He admitted
that same concerned killing [the victim]. Further, Duncan made
inculpatory statements as detailed above regarding the
$300,000 which [the victim] had cost [Appellant]. Geletei
testified to the following:

[Duncan] come over and asked if I knew [the victim]. I
said, yeah. He says, I'm going to take his ass out. And he
started saying something about [Appellant] 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.

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[Appellant] and his co-conspirators committed acts in
furtherance of the crime of homicide. Even though Duncan
actually pulled the trigger, [Appellant] entered into an
agreement with him to kill [the victim] and [Appellant]
attempted to find a third party to get the victim out of the
house.

TCO, at 14-17.

We agree with the trial court that this evidence was sufficient to

support Appellant’s convictions for conspiracy and solicitation. And,

although Duncan ultimately fired the fatal shot, his action was taken in

furtherance of the conspiracy to which Appellant was a party. Accordingly,

there was also sufficient evidence to support his conviction for first degree

murder. See Commonwealth v. Wayne, 720 A.2d 456, 463 (Pa. 1998)

(“The general rule of law pertaining to the culpability of conspirators is that

each individual member of the conspiracy is criminally responsible for the

acts of his co-conspirators committed in furtherance of the conspiracy.”).

Accordingly, Appellant’s sufficiency claims are meritless.

Joinder

Next, Appellant presents several arguments supporting his claim that

the trial court erred when it granted the Commonwealth’s motion to

consolidate his case with that of Duncan (issues 5, 6, and 7). “It is well

established that the propriety of consolidating separate indictments for trial

is a matter of discretion with the trial judge, and the exercise of this

discretion will be reversed only for manifest abuse of discretion or prejudice

and clear injustice to the defendant.” Commonwealth v. Morris, 425 A.2d

715, 718 (Pa. 1981). “Defendants charged in separate indictments or

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informations may be tried together if they are alleged to have participated in

the same act or transaction or in the same series of acts or transactions

constituting an offense or offenses.” Pa.R.Crim.P 582(A)(2). “As a general

policy, joint trials are encouraged when judicial economy will be promoted

by avoiding the expensive and time-consuming duplication of evidence.”

Commonwealth v. Jones, 668 A.2d 491, 501 (Pa. 1995). Furthermore,

where “defendants have been charged with conspiracy, joint rather than

separate trials are preferred.” Id. “However, severance may be proper

where a defendant can show that he will be prejudiced by a joint trial.” Id.

In Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988), our Supreme

Court established a three part test for determining whether joinder or

severance of criminal defendants is proper. The trial court must determine

[(1)] whether the evidence of each of the offenses would be
admissible in a separate trial for the other; [(2)] whether such
evidence is capable of separation by the jury so as to avoid
danger of confusion; and, if the answers to these inquiries are in
the affirmative, [(3)] whether the defendant will be unduly
prejudiced by the consolidation of offenses.

Id. at 497.

Appellant first contends that the complexity of evidence presented at

trial made the danger of confusing the jury unavoidable. He claims that

“the evidence offered against [Appellant] … and … Duncan … was such that

the jury was likely unable to distinguish the evidence offered against Mr.

Duncan from evidence offered against [Appellant].” Appellant’s Brief at 25.

Appellant also complains that “[w]here the vast majority of evidence offered

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at trial applied only to one defendant, where days passed at trial where

evidence was offered against only one defendant it must be said that there

exists the very real potential that the jury was unable to avoid cumulating

said evidence against Duncan towards [Appellant], unduly prejudicing him

and denying him a fair trial.” Id. at 25-26.

We disagree. Most, if not all, of the evidence presented against

Duncan was also admissible against Appellant, due to the fact that the two

were accused of a conspiracy in which Duncan killed the victim at Appellant’s

behest. Thus, judicial economy and the preference for joint trials in

conspiracy cases are both factors that weighed strongly in favor of joinder.

The trial court found that there was little risk of jury confusion in this case,

despite the high volume of evidence:

Although the testimony and evidence was extensive, it all
pointed clearly towards the Commonwealth’s theory of the case,
which, at its heart, is quite simple. In fact, the Commonwealth’s
theory can be summed up in one sentence. The Commonwealth
alleges that [Appellant], after having been set up by the victim
who was working as a C.I., hired Duncan to kill him and Duncan
did so.

…

It is difficult to conceive how the evidence of one man hiring
another to perform murder would confuse the jury. All evidence
of the solicitation was presented as to [Appellant]. All evidence
of the killing was presented as to Duncan. Evidence of the
conspiracy was presented as to both.

TCO, at 22-23.

We ascertain no abuse of discretion in the trial court’s conclusion that

there was little risk of jury confusion in this case. Accordingly, we conclude

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that the trial court did not abuse its discretion in granting the

Commonwealth’s motion to consolidate on this basis.

Next, Appellant argues that joinder was improper because Geletei’s

testimony was not admissible against Appellant. Geletei testified that while

he and Duncan were in prison together, Duncan came “over and asked if I

knew [the victim]. I said, yeah. He says, I’m going to take his ass out.

And he started saying something about [Appellant] and drugs and all this.”

N.T., 8/7/12, at 792. Appellant contends that this statement was not made

in furtherance of the conspiracy and, therefore, although it was admissible

against Duncan, it would not have been admissible against Appellant if the

two were tried separately.

Appellant did not include any reference to Geletei’s statement in his

Rule 1925(b) concise statement. As such, the trial court did not address the

admissibility of that statement. Indeed, in response to Appellant’s concise

statement regarding the motion to consolidate, the trial court stated that

Appellant “points to no specific evidence that would have been inadmissible

in a separate trial.” TCO, at 24. Accordingly, Appellant has waived this

argument. “Any issues not raised in a 1925(b) statement will be deemed

waived.” Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).

Nevertheless, even if Appellant had not waived this claim, he has not

demonstrated that its admission was unduly prejudicial. See Lark, supra.

Appellant only states that “[t]his statement, though inadmissible had

[Appellant] been tried alone, was certainly considered by the jury against

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him in a joint trial with Duncan.” Appellant’s Brief at 27. Such argument is

woefully underdeveloped and does not place Geletei’s statement in the

context of the record as a whole. Furthermore, Geletei’s statement is wholly

consistent with the bulk of evidence in this case. Both Bowman and Irwin

testified “that they personally witnessed [Appellant] ask Duncan to kill the

victim….” TCO, at 24. Ample evidence was produced demonstrating

Appellant’s motive, and evidence was introduced, through McCarthy,

corroborating Appellant’s participation in the conspiracy. Accordingly, even

if Appellant had not waived this specific claim, he cannot demonstrate undue

prejudice and, therefore, we would conclude that the trial court did not

abuse its discretion in granting joinder.

Finally, Appellant contends that joinder was improper because he and

Duncan presented antagonistic defenses. He claims this was demonstrated

by the fact that Duncan objected to Appellant’s questions during the

testimony of Hull and Irwin, questions that were “designed to link Duncan to

Irwin as a source of solicitation as opposed to [Appellant]….” Appellant’s

Brief at 27. Appellant contends this deprived him of a fair trial by requiring

him to act as a “de-facto prosecutor” for Duncan while also presenting his

own defense.

Again, Appellant failed to raise this claim with any specificity in his

Rule 1925(b) statement, depriving the trial court of the opportunity to

respond. Therefore, we deem this matter waived. See Lord, supra.

Nonetheless, Appellant would not be entitled to relief on this basis if we

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reached the merits of the claim. “Mere fingerpointing alone-the effort to

exculpate oneself by inculpating another-is insufficient to warrant a separate

trial.” Commonwealth v. Lambert, 603 A.2d 568, 573 (Pa. 1992). To

warrant a separate trial on the basis of antagonistic defenses, “[t]he

evidence … must be of such a nature and quality that while it will be

introduced against one defendant, it will not be admissible against others.

Where the jury will infer justifiably that the conflict alone demonstrates that

both are guilty, separate trials should be provided by the court.” Id.

Appellant’s cross-examination of Hull and Irwin appears to be “mere

fingerpointing” and not a matter that would necessarily cause the jury to

infer guilt from the conflict. Accordingly, had Appellant not waived this

claim, we would conclude that the trial court did not abuse its discretion in

granting the Commonwealth’s motion to consolidate on that basis.

Testimony of Robert Bedner

Appellant also asserts that the trial court abused its discretion in

permitting the Commonwealth to call Robert Bedner as a witness. Appellant

argues that “[i]t is improper for the Commonwealth, with advance

knowledge that a witness intends to deny the truth of an earlier out-of-court

statement inculpating the defendant, to call said witness; it is reversible

error for the trial court to permit the same.” Appellant’s Brief at 28 (citing

Commonwealth v. Wright, 321 A.2d 625 (Pa. 1974)). We review

Appellant’s claim under the following standard:

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Admission of evidence is a matter within the sound discretion of
the trial court, and will not be reversed absent a showing that
the trial court clearly abused its discretion. Not merely an error
in judgment, an abuse of discretion occurs when the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will, as shown by the evidence on record.

Commonwealth v. Cooper, 941 A.2d 655, 667 (Pa. 2007) (citations and

quotations omitted).

In Wright, our Supreme Court considered “whether it was reversible

error to permit one of Wright's alleged confederates to take the stand as a

prosecution witness when both the prosecution and the court had notice of

the witness' intention to deny the truth of his earlier out-of-court statement

inculpating Wright.” Wright, 321 A.2d at 626. The Wright Court

recognized established precedent that “it is reversible error for the

prosecution, once informed of a witness' intention to claim a privilege

against self-incrimination, to call that witness to the stand before the jury

where the witness is likely to be thought by the jury to be associated with

the defendant in the incident or transaction out of which the criminal charges

arose.” Wright, 321 A.2d at 627. Our Supreme Court found that the trial

court abused its discretion in permitting the witness’s testimony:

Only one legitimate purpose could have been served by the
prosecutor's questions: to discover whether Hobbs would stand
by his prior statement, or would renounce it. The statement
itself was inadmissible against Wright, and there was no reason
to bring it to the attention of the jury. Hobbs' testimony not
only alerted the jurors to the existence of the statement, but
also laid the basis for an inference that it was unfavorable to
Wright. Once the prosecution had foreknowledge that Hobbs
was likely to disavow the statement, any doubts on this score

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should have been resolved out-side [sic] of the presence of the
jury. The potential prejudice to the defendant would thus have
been easily avoided.
…

Some indication of the impact of Hobbs' brief testimony
disavowing the truth of his statement may be gleaned from the
jury's question to the court, part-way through its deliberations,
whether Hobbs' statement had been admitted in evidence, and
its request to see the statement. Under these circumstances, it
cannot be assumed that Hobbs' testimony did Wright no harm.

Id. at 626 (footnote omitted).

We disagree with Appellant’s contention that the present case is

analogous to Wright. Here, the Commonwealth sought to admit Bedner’s

prior statement as substantive evidence, and Bedner did not recant his prior

statement or claim a privilege against self-incrimination. Bedner, when

questioned about a statement he made to State Police regarding Appellant,

said he could not recall what he had said, but he did indicate that his

statement concerned the victim’s death. N.T., 1/18/12, at 1132-33. The

statement (in transcript form) was shown to him to refresh his recollection.

Id. at 1134. It did not refresh his recollection, because, as Bedner stated,

he made the statement at a time when he “did a lot of drugs” and “drugs

ruled [his] life.” Id. at 1134-35. The Commonwealth then sought to

introduce a recording of the statement as a recorded recollection pursuant to

Pa.R.E. 803.1(3).2 Id. at 1137.

____________________________________________

2
Rule 803.1(3) provides as exception to the rule against hearsay as
follows:
(Footnote Continued Next Page)

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Contrary to Appellant’s argument, Bedner did not deny the truth of his

prior statement; instead, he indicated that his memory of the occasion had

been compromised by heavy drug use. He also testified that he “probably”

told the truth when he made the statement. Id. at 1134. Later, during

cross-examination, he admitted that he stated at Appellant’s preliminary

hearing that he would have “said anything to keep out of jail, a story, a lie,

anything, that’s highly possible what this is.” Id. at 1166. However, at

trial, Bedner stated that he “wouldn’t have went out of [his] way to lie to the

State Police.” Id. He also stated at trial that it was only “possible” that he

had lied to police in the recorded statement. Id. at 1169. Simply put, the

record does not support Appellant’s contention that Bedner denied the truth

of his earlier statement. Furthermore, the trial court determined that

Bedner “was not called solely for impeachment purposes, but rather the
_______________________
(Footnote Continued)

(3) Recorded Recollection of Declarant-Witness. A
memorandum or record made or adopted by a declarant-witness
that:

(A) is on a matter the declarant-witness once knew about
but now cannot recall well enough to testify fully and
accurately;

(B) was made or adopted by the declarant-witness when
the matter was fresh in his or her memory; and

(C) the declarant-witness testifies [it] accurately reflects
his or her knowledge at the time when made.

Pa.R.E. 803.1(3).

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Commonwealth anticipated that he would testify consistently with his 2003

statements.” TCO, at 29. Accordingly, we conclude that the trial court did

not abuse its discretion in permitting the Commonwealth to call Bedner to

testify.

Discovery

Finally, Appellant claims the trial court abused its discretion when it

denied Appellant’s petition to compel the Commonwealth to produce the

victim’s C.I. file. The Commonwealth’s theory of the case was that Appellant

solicited Duncan to kill the victim because the victim’s work as a C.I. had

caused Appellant to be arrested and lose a significant amount of the

proceeds from his drug distribution operation. Appellant contends that the

contents of the C.I. file could have demonstrated the existence of others

who would have had the same or similar motive to kill the victim and,

therefore, the trial court abused its discretion when it denied his petition.

The trial court indicates that the file in question had been purged in

2009 pursuant to standard PSP document retention policy. Consequently,

Appellant’s specific claim that the trial court erred in failing to order its

production is wholly frivolous because the file no longer existed at the time

he requested it. Nevertheless, even if we were to construe Appellant’s

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assertion as a variant of a Brady3 claim, as he suggests in his brief, he

would still not be entitled to relief. It is true that “the Due Process Clause of

the Fourteenth Amendment requires the State to preserve evidentiary

material that might be useful to a criminal defendant.” Arizona v.

Youngblood, 488 U.S. 51, 52 (1988). However, “unless a criminal

defendant can show bad faith on the part of the police, failure to preserve

potentially useful evidence does not constitute a denial of due process of

law.” Id. at 58.

Here, the trial court determined that Appellant could not demonstrate

bad faith on the part of the Commonwealth because the court

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
[Newman’s] confidential informant file in 2009 (following a five
(5) year requirement to maintain this type of file)[].” (Docket
92). As the PSP destroyed this file two years prior to the filing of
charges in this case and pursuant to a standard document
retention policy, the Court cannot characterize the
Commonwealth’s failure to preserve the evidence as being done
in bad faith.

TCO, at 30.

____________________________________________

3
Brady v. Maryland, 373 U.S. 83 (1963) (holding that suppression by the
prosecution of favorable evidence to an accused upon request violates due
process where the evidence is material either to guilt or to punishment).

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We agree with the trial court that bad faith cannot be demonstrated in

these circumstances.4 Thus, even if Appellant had properly asserted and

preserved a Brady claim in this case, we would nonetheless conclude that

the trial court did not abuse its discretion in determining that Appellant’s due

process rights had not been violated when the Commonwealth destroyed the

victim’s C.I. file.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/1/2014

____________________________________________

4
We also agree with the trial court’s assessment that even if the destroyed
file contained evidence of others who shared Appellant’s motive to kill the
victim, as Appellant claims, it is extremely unlikely that such evidence would
have been materially exculpatory in and of itself. At best, it might have led
an investigation towards exculpatory evidence.

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