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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL J. DUNCAN :
:
Appellant : No. 1751 WDA 2018
Appeal from the PCRA Order Entered November 29, 2018
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0000357-2011
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 27, 2020
Michael J. Duncan (Duncan) appeals from the order entered in the Court
of Common Pleas of Washington County (PCRA court) dismissing his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. We reverse the PCRA court’s order and remand for a new trial.
I.
This case stems from Duncan’s conviction of first-degree murder and
criminal conspiracy to commit murder1 for the shooting death of John Lynn
Newman (Newman). Newman had been acting as a confidential informant
(CI) for the Pennsylvania State Police (PSP) in a drug-related investigation
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2502(a) and 903.
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purchasing oxycodone from John Ira Bronson, Jr. (Bronson). In January 2012,
a jury found that Newman’s death was the result of a conspiracy between
Duncan and co-defendant Bronson. On March 2, 2012, the trial court
sentenced Duncan to life imprisonment for first-degree murder, plus a
consecutive term of not less than fifteen nor more than thirty years’
incarceration for conspiracy. In his direct appeal, a panel of this Court found
all of Duncan’s issues waived and affirmed the judgment of sentence. Duncan
then successfully sought reinstatement of his direct appeal rights under the
PCRA and filed an appeal nunc pro tunc. A panel of this Court affirmed the
judgment of sentence on July 7, 2016, and our Supreme Court denied his
petition for allowance of appeal.
Duncan, acting pro se, filed the instant PCRA petition on January 31,
2017, and appointed counsel filed an amended petition alleging ineffective
assistance of trial counsel.2 The PCRA court entered its order dismissing the
petition on November 29, 2018, after issuing notice of its intent to do so. See
Pa.R.Crim.P. 907(1). This timely appeal followed.
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2We note that trial counsel died in 2014. (See Trial Court Opinion, 12/13/18,
at 12 n.2).
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II.
On appeal, Duncan raises multiple claims of ineffective assistance of trial
counsel. See 42 Pa.C.S. § 9543(a)(2)(ii); (Duncan’s Brief, at 4, 12-25).3 “The
law presumes counsel has rendered effective assistance.” Postie, supra at
1022 (citation omitted). “In general, to prevail on a claim of ineffective
assistance of counsel, a petitioner must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” Id. (citation
omitted). “The petitioner must demonstrate: (1) the underlying claim has
arguable merit; (2) counsel lacked a reasonable strategic basis for his action
or inaction; and (3) but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings would have been
different.” Id. (citation omitted). “The petitioner bears the burden of proving
all three prongs of the test.” Id. (citation omitted).
“A claim has arguable merit where the factual averments, if accurate,
could establish cause for relief.” Id. at 1023 (citation omitted). “[T]he
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3 “Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. This Court grants great
deference to the findings of the PCRA court if the record contains any support
for those findings.” Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa.
Super. 2018) (en banc) (citations omitted).
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ultimate question of whether facts rise to the level of arguable merit is a legal
determination.” Id. (citation omitted). Additionally, “[w]here matters of
strategy and tactics are concerned, counsel’s assistance is deemed
constitutionally effective if he chose a particular course that had some
reasonable basis designed to effectuate his client’s interests.”
Commonwealth v. Adams-Smith, 209 A.3d 1011, 1019–20 (Pa. Super.
2019) (citation omitted). “A claim of ineffectiveness generally cannot succeed
through comparing, in hindsight, the trial strategy employed with alternatives
not pursued.” Id. (citation omitted).
A.
Duncan first claims that trial counsel was ineffective for failing to
properly argue to the court that his testimony regarding an alibi defense was
admissible. (See Duncan’s Brief, at 12, 15-18). Duncan asserts that before
trial, he informed defense counsel that he had an alibi for the night in question,
specifically, that he was at a gentleman’s club through the evening and early
morning of the date of Newman’s death. (See id. at 9).
We begin by noting that Pennsylvania Rule of Criminal Procedure 5674
governs the defense of alibi and requires that notice of such a defense shall
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4 Pa.R.Crim.P. 567(A)(1)-(2), (B)(1) provides, in relevant part:
(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
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be filed at the time of the omnibus pretrial motion. As this Court explained
on direct appeal:5
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.
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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.
(2) 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.
(emphasis added).
5On direct appeal, Duncan raised the issue of his alibi testimony in the context
of trial court error regarding admission of evidence.
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[DEFENSE COUNSEL]: Just to talk about whether he was [at the
strip club] that evening is not impermissible.
THE COURT: You already said that he was at some strip club. I
still don’t know the name of it.
[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 184[7]-4[9]). 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 185[3]. 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. . . .
[COMMONWEALTH]: My objection still stands.
[DEFENSE COUNSEL]: I understand what [the Commonwealth] is
saying.
[COMMONWEALTH]: You just gave [Appellant] an alibi for the
entire—
[DEFENSE COUNSEL]: Who should I respond to first?
THE COURT: And then where after Denny’s?
[COMMONWEALTH]: Gerald Hull’s.
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THE COURT: I took it to mean that the Commonwealth was
complaining, as they did earlier object, that you were trying to get
in an alibi defense.
[COMMONWEALTH]: We are.
[DEFENSE COUNSEL]: It’s not—it’s a time.
[COMMONWEALTH]: [Defense counsel], you have just alibied him
out for the time of the homicide.
[DEFENSE COUNSEL]: Absolutely not.
[COMMONWEALTH]: Are you kidding me? Are you kidding me?
THE COURT: You are trying to get an alibi defense in through the
back door without a notice.
[DEFENSE COUNSEL]: We did not. I’m asking—the question was
did he go to Gerald Hull’s house that evening.
THE COURT: He should have just answered yes.
[DEFENSE COUNSEL]: He answered what he answered.
THE COURT: What he answered provided an alibi for certain times
that are important as to—
[DEFENSE COUNSEL]: I understand what you are saying. We will
move ahead.
THE COURT: And you didn’t put on a notice of an alibi.
[DEFENSE COUNSEL]: Absolutely right. Absolutely right.
THE COURT: Had you done so, you would have been permitted to
present this testimony, but [the] Commonwealth would have had
notice and they could have done interviews and investigations.
[COMMONWEALTH]: Just moving ahead is not good enough. The
Commonwealth believes that a cautionary instruction should be
given.
THE COURT: What cautionary instruction are you requesting?
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[COMMONWEALTH]: [Appellant’s] testimony should be stricken
and not considered.
THE COURT: I’m not going to repeat that testimony because we
have all heard it differently.
[DEFENSE COUNSEL]: If the [c]ourt feels it’s sustainable, I have
no problem with you sustaining the objection.
THE COURT: I sustained it. But they are going one step beyond
that. They want a cautionary instruction.
[DEFENSE COUNSEL]: It can be stricken.
THE COURT: That’s part of a cautionary instruction. [Appellant’s]
response or answer to the last question regarding his whereabouts
on—
[DEFENSE COUNSEL]: At 4:30.
[COMMONWEALTH]: February 3rd into February 4th.
[DEFENSE COUNSEL]: I think the theory is [the homicide]
happened at 9:00 or 9:30. This is hours, hours, hours and
they can cross-examine on him.
THE COURT: I don’t know what time he went to the strip joint,
whatever you call these places.
[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
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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.
(Commonwealth v. Duncan, 2016 WL 5858270, at *6–7 (Pa. Super. Ct.
filed July 7, 2016)). The trial court sustained the objection and issued a
cautionary instruction to the jury that Duncan’s response to the last question
regarding his whereabouts was stricken from the record and should not be
considered during jury deliberations. (See N.T. Trial, 1/23/12, at 1859-60).
On direct appeal, we found the issue to be waived because the
Commonwealth objected to Duncan’s testimony on the ground that he failed
to file Rule 567 notice of an alibi defense. In response to the Commonwealth’s
objection, defense counsel did not claim Duncan’s testimony was admissible
under the Rule 567(B)(1) exception regarding a defendant’s personal alibi
testimony, but instead asserted the testimony was not alibi evidence per se
because it did not necessarily cover the time of the homicide. We held that
because, in his direct appeal, Duncan characterized the testimony as alibi
evidence to take advantage of the Rule 567 exception and at trial failed to
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raise the admissibility of his testimony under that exception, he waived that
issue.
After review, we agree with the PCRA court’s conclusion that Duncan
failed to demonstrate that counsel’s handling of this matter lacked a
reasonable strategic basis. While he did not contend that the testimony was
admissible under the Rule 567(B)(1) exception, the record indicates that trial
counsel, who was deceased at the time of the hearing, did not believe that
Duncan’s testimony covered the entire time-period at issue, especially
between 9:00 p.m. and 9:30 pm. Because the record indicates that counsel
chose a particular course that had some reasonable basis designed to
effectuate Duncan’s interests, we cannot conclude that counsel was ineffective
with regard to arguing for admission of the purported alibi testimony.
B.
Duncan next contends that trial counsel was ineffective for failing to
raise a Brady6 claim when the PSP destroyed Newman’s CI file. (See
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6 Brady v. Maryland, 373 U.S. 83 (1963). “Under Brady[ ] and subsequent
decisional law, a prosecutor has an obligation to disclose all exculpatory
information material to the guilt or punishment of an accused, including
evidence of an impeachment nature.” Commonwealth v. Miller, 212 A.3d
1114, 1124 (Pa. Super. 2019) (citation omitted). “To establish a Brady
violation, an appellant must prove three elements: (1) the evidence at issue
is 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. (citation omitted).
A failure to preserve potentially useful evidence does not constitute a denial
of due process of law unless a defendant can show bad faith on the part the
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Duncan’s Brief, at 12-13, 18-20). Duncan asserts that authorities acted in
bad faith in destroying the file and deprived him of the opportunity to prepare
a full and fair defense.
The PCRA court concluded that Duncan’s underlying Brady claim lacked
arguable merit and had already been addressed on direct appeal. (See Trial
Ct. Op., at 13). Although this Court on direct appeal found that Duncan waived
his Brady claim, it further concluded that the issue lacked merit where:
The [t]rial [c]ourt found by its December 27, 2011 Order
that “the Commonwealth indicated that the [PSP], following
standard state police practice regarding a person’s confidential
informant file, purged [Victim’s] confidential informant file in 2009
(following a five (5) years requirement to maintain this type of
file) [.]” As the PSP destroyed this file two years prior to the filing
of charges in this case and pursuant to a standard document
retention policy, the [c]ourt cannot characterize the
Commonwealth’s failure to preserve the evidence as being done
in bad faith. (Trial Court Opinion, filed June 6, 2013, at 30).
Consequently, even if Appellant had preserved the issue, we
would accept the trial court’s bad faith analysis and conclude
Appellant’s due process challenge merits no relief.
(Duncan, supra at *9).
Because the underlying Brady claims lacks merit, we conclude that
Duncan’s trial counsel was not ineffective for failing to raise it. See Miller,
supra at 1129 (“Counsel will not be deemed ineffective for failing to raise a
meritless claim.”) (citation omitted).
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police. See Commonwealth v. Brown, 200 A.3d 986, 994 (Pa. Super.
2018).
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C.
Duncan also challenges the trial counsel’s handling of an issue that arose
with respect to Juror No. 3 and a lawyer who was not involved in this case,
Attorney Sean Logue. (See Duncan’s Brief, at 22-25). Specifically, when
Juror No. 3 was returning to the courtroom after taking a cigarette break,
Attorney Logue approached him and asked if he was a juror and whether he
was on the murder trial. Juror No. 3 told Attorney Logue that he could not
talk about it, walked away and immediately reported the incident to court
staff. Both the juror and Attorney Logue were involved in conservative
politics, and there was a suggestion that the juror may have been involved in
the district attorney’s campaign. (See N.T. Trial, 1/18/12, at 979, 997, 1004).
On appeal, Duncan argues that counsel was ineffective for failing to insist that
the court question Juror No. 3 about his interaction with Attorney Logue and
whether it impacted his ability to serve. (See Duncan’s Brief, at 24-25).
A review of the record belies Duncan’s claim. The notes of testimony
show that defense counsel did request that Juror No. 3 be excused or that the
court individually voir dire him. (See N.T. Trial, 1/18/12, at 980, 996-97,
1004-05). The Commonwealth objected, noting that Juror No. 3 had already
been extensively voir dired both written and orally in the presence of counsel
and the court. (See id. at 981). The court denied the defense motion and
advised Juror No. 3 that he acted appropriately in reporting the incident to
court staff immediately. (See id. at 1005-06). Thus, because defense
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counsel did request voir dire, Duncan’s claim that he failed to do so lacks
arguable merit.
D.
Duncan next argues that trial counsel failed to adequately challenge the
credibility of Commonwealth witness Michael Bowman (Bowman) because he
failed to impeach his testimony based on his receiving immunity for his
testimony. (See Duncan’s Brief, at 20-22).
All of the other testimony was based on Duncan’s admissions that he
had killed Newman and there was no physical evidence linking him to the
crime. Bowman, the only person who had first-hand knowledge of the events
leading up to the murder, made him a key witness. In exchange for immunity,
Bowman testified that he was at a meeting where Duncan and Bronson
formulated a plan to kill Newman because Newman owed Bronson money and
was a “snitch.” He testified that he was asked to participate in that meeting
but declined. Bowman also testified that in April 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
2003, Bowman had a three-way call with a woman and Duncan. Again,
Duncan admitted that he killed Newman. See Commonwealth v. Duncan,
No. 237 WDA 2015, 2016 WL 5858270, at *1 (Pa. Super. Ct. filed July 7,
2016).
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When Duncan contends that his counsel knew or should have known
that Bowman received immunity to testify in this trial, he contends that failure
to question Bowman regarding his receiving immunity would have seriously
damaged his credibility. In rejecting that argument, the PCRA court found
that counsel was not ineffective because counsel for both defendants
questioned Bowman extensively and aggressively on cross-examination and
re-cross- examination regarding his truthfulness and potential bias. (See N.T.
Trial, 1/18/12, at 1039-1127). As the PCRA court points out, counsel for
Duncan began his cross-examination of Bowman by stating “let’s start with
your criminal record[,]” and went on to outline his convictions for receiving
stolen property, drug violations, armed robbery, terroristic threats and false
reports to police officers. (Id. at 1069; see id. at 1069-72, 1089). Counsel
questioned Bowman regarding his lenient guilty plea in a separate armed
robbery case in an attempt to establish a motive for his testimony. (See id.
at 1089-96).
The PCRA court found that in light of counsel’s thorough cross-
examination of Bowman in front of the jury regarding his prior convictions and
pleas involving false reports to police and armed robbery, counsel effectively
challenged Bowman’s credibility. However, that is an assumption because we
do not know that counsel effectively challenged his credibility. Duncan was
convicted and, in any sufficiency of the evidence claim, we would be required
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to assume that the jury found his testimony credible, and any fact that he
testified to could be used to support the verdict.
The importance of the grant of immunity or promises of immunity in
impugning the credibility of a government witness was explained by our
Supreme Court in Commonwealth. v. Strong, 761 A.2d 1167, 1171 (Pa.
2000), stating:
Exculpatory evidence favorable to the accused is not confined to
evidence that reflects upon the culpability of the defendant.
Exculpatory evidence also includes evidence of an impeachment
nature that is material to the case against the accused. Napue
v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217
(1959). As the court in Napue sagely observed: “[t]he jury’s
estimate of the truthfulness and reliability of a given
witness may well be determinative of guilt or innocence,
and it is upon such subtle factors as the possible interest
of the witness in testifying that a defendant’s life or liberty
may depend.” Id. at 269, 79 S.Ct. 1173. Any implication,
promise or understanding that the government would extend
leniency in exchange for a witness’ testimony is relevant to the
witness’ credibility. United States v. Giglio, 405 U.S. 150, 154,
92 S.Ct. 763, 31 L.Ed.2d 104 (1972). (Emphasis added.)
It went on to state that:
Given that [witness] is the key witness who puts the gun in
appellant’s hand at the moment of the murder, his credibility was
decisive to the jury’s finding as to appellant’s guilt. Impeachment
evidence which goes to the credibility of a primary witness against
the accused is critical evidence and it is material to the case
whether that evidence is merely a promise or an understanding
between the prosecution and the witness.
* * *
The facts in this case strongly indicate that [witness’s] testimony
was in exchange for what he believed would be a beneficial
outcome to him. That understanding was material
information that appellant’s jury should have been
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informed of when weighing Alexander’s credibility. There
is a reasonable probability that had this information been
revealed, the outcome of appellant’s trial would have been
different. Bagley, supra., Agurs, supra., Giglio, supra., Brady,
supra.
In this case, Bowman was a key witness because he was the only
witness to describe the details of the meetings and the only direct evidence to
point to a conspiracy. He testified at trial that he was present when Bronson
arranged for Duncan to kill Newman and further testified that Duncan told him
he then killed Newman. Disclosure of the immunity agreement was material
information that Duncan’s jury should have been informed of when weighing
Bowman’s credibility and the motivation for his testimony. While the jury
heard that he had been convicted previously and received what was
purportedly a lenient sentence in an armed robbery conviction, those reasons
could be used in any case at any time to challenge his credibility. However,
his receiving of immunity to testify went directly to why he was testifying in
this case and was important for a jury to know in determining Bowman’s
credibility.
There was also no strategic reason for defense counsel not to bring out
on cross that Bowman was only willing to testify if he received immunity;
rather, such questioning would fit squarely within defense counsel’s strategy.7
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7 There can be valid strategic reasons for not bringing up the immunity
defense. See Commonwealth v. Baxter, No. 1277 EDA 2015, 2016 WL
6803858, at *14–15 (Pa. Super. Ct. Nov. 17, 2016); Commonwealth v.
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When this issue was raised in the direct appeal, it was raised as a Brady
violation because it had not been turned over in discovery – in effect, that
defense counsel was unaware of its existence. We found that trial counsel
should have known of the immunity agreement because it was in the grand
jury transcript. We stated:
Prosecution offered Michael Bowman immunity in exchange for his
testimony at Appellant’s trial; disclosure of immunity
agreement to jury would have been favorable to Appellant;
nevertheless, there is no indication Commonwealth suppressed or
withheld evidence of agreement; existence of agreement was
apparent on face of grand jury transcript; defense counsel
received copy of grand jury transcript before trial and repeatedly
referred to it during cross-examination of Mr. Bowman; therefore,
Appellant had equal access to allegedly withheld information and
no Brady violation occurred. (Emphasis added).
Commonwealth v. Duncan, at *10.
Had defense counsel read the grand jury transcript and cross-examined
Bowman on immunity, the fact that Bowman received immunity could have
tipped the jury to find all of his testimony not credible, weakening the
Commonwealth’s theory of conspiracy and revenge and making it more likely
to acquit him on those charges. Accordingly, because Bowman was a key
witness, we conclude that there is a reasonable probability that this
information would have changed the outcome of Duncan’s trial and his claim
of ineffectiveness is justified.
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McBride, No. 2187 EDA 2015, 2017 WL 362616, at *6 (Pa. Super. Ct. Jan.
25, 2017).
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Order reversed. Remand for new trial. Jurisdiction relinquished.
Judge Lazarus joins the memorandum.
President Judge Emeritus Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2020
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