J-A05041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL DWAYNE BAGNALL                     :
                                               :
                       Appellant               :   No. 560 WDA 2018

       Appeal from the Judgment of Sentence Entered October 30, 2017
      In the Court of Common Pleas of Mercer County Criminal Division at
                        No(s): CP-43-CR-0000419-2015

BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                               FILED MARCH 01, 2019

       Michael Dwayne Bagnall (Appellant) appeals from the judgment of

sentence imposed after a jury convicted him of first degree murder.1 After

careful review, we affirm.

       The trial court summarized the facts of this case as follows:

           This case stems from the killing of Jaylan “Bubby” West
       between the night of February 27, 2015, and the early morning
       hours of February 28, 2015. The incident occurred at the home
       of [Appellant]’s sister, 329 Quimby Street, Farrell, Mercer County,
       Pennsylvania (the Residence). The testimony at trial indicated
       that [Appellant] was celebrating his birthday at the Residence, but
       the party ended abruptly when an argument broke out. Sometime
       after the party had ended, Jaylan West returned to the Residence
       where he was later shot.

          Jamal Norman (Norman) sought the aid of the police to find the
       victim, Jaylan West, who had gone missing after returning to the
       Residence. Upon discovering the victim’s body nearby, the Farrell
       Police investigated the Residence and collected evidence
____________________________________________


1   18 Pa.C.S.A. § 2501(a).
J-A05041-19


       regarding the victim’s death, including several stolen weapons and
       both live and spent ammunition. Approximately two months later,
       the property manager for the Residence, Sheila White, turned in
       a spent bullet slug which was allegedly found in the basement of
       the Residence by a maintenance worker.

           In the two days following the shooting, law enforcement
       officers tracked a cell phone believed to belong to [Appellant] to
       the Pittsburgh area. [Appellant] was found in an apartment with
       his then girlfriend, Amanda Dollman, now Amanda Martino
       (Martino). [Appellant] was arrested and held in custody pending
       his trial. [Appellant]’s former cellmate, Matthew Kelley (Kelley),
       testified that [Appellant] had admitted to murdering Jaylen West.
       [Appellant]’s friend, John [Gregory (Gregory)], who was at the
       party, also testified that [Appellant] killed Jaylan West.

          Prior to trial, the Pennsylvania Attorney General’s Office took
       over the prosecution of this matter due to a conflict of interest
       with the Mercer County District Attorney’s Office.

Trial Court Opinion, 4/12/18, at 3-4.

       On August 25, 2017, a jury found Appellant guilty of first-degree

murder.      On October 30, 2017, the trial court sentenced Appellant to life

imprisonment without the possibility of parole. Appellant filed a timely post-

sentence motion in which he raised, inter alia, a Brady2 claim and claims of

prosecutorial misconduct. The trial court held a hearing, after which it denied

Appellant’s post-sentence motion. This timely appeal followed.

       On appeal, Appellant presents two issues for our review:

       I.     DID THE TRIAL COURT ERR IN FAILING TO GRANT A NEW
              TRIAL OR DISMISSAL BASED UPON A BRADY VIOLATION?

       II.    DID THE COMMONWEALTH ENGAGE IN PROSECUTORIAL
              MISCONDUCT?
____________________________________________


2   Brady v. Maryland, 373 U.S. 83 (1963).

                                           -2-
J-A05041-19



Appellant’s Brief at 4.

      For his first issue, Appellant argues that the trial court erred in denying

him a new trial because the Commonwealth committed a Brady violation.

Specifically, Appellant asserts that the Commonwealth withheld evidence at

Appellant’s trial that Gregory, the lone eyewitness to West’s murder, received

a mitigated range sentence in an unrelated DUI case based on his cooperation

in this case.

      In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme

Court held “that the suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of

the prosecution.”   Id. at 87.   As the Supreme Court of Pennsylvania has

explained, “[t]he 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.”

Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa. 2013).

      This Court has further explained:

      Our Supreme Court “has limited the prosecution’s disclosure duty
      such that it does not provide a general right of discovery to
      defendants.” Commonwealth v. Cam Ly, [] 980 A.2d 61, 75
      ([Pa.] 2009). “Under Brady, the prosecution’s failure to divulge
      exculpatory evidence is a violation of a defendant’s Fourteenth
      Amendment due process rights.” Id. “‘[T]he prosecutor is not
      required to deliver his entire file to defense counsel, but only to
      disclose evidence favorable to the accused that, if suppressed,
      would deprive the defendant of a fair trial.’” Id. (quoting [U.S.]

                                      -3-
J-A05041-19


      v. Bagley, 473 U.S. 667, 675 (1985)). “[T]o establish a Brady
      violation, a defendant must demonstrate that: (1) the evidence
      was suppressed by the Commonwealth, either willfully or
      inadvertently; (2) the evidence was favorable to the defendant;
      and (3) the evidence was material, in that its omission resulted in
      prejudice to the defendant.” Commonwealth v. Haskins, 60
      A.3d 538, 547 (Pa. Super. 2012) (citing Commonwealth v.
      Dennis, [] 17 A.3d 297, 308 ([Pa.] 2011)). “The mere possibility
      that an item of undisclosed information might have helped the
      defense, or might have affected the outcome of the trial does not
      establish materiality in the constitutional sense.” Id. (citing
      Commonwealth v. McGill, [] 832 A.2d 1014, 1019 (Pa. 2003))
      (citation omitted).

Commonwealth v. Robinson, 122 A.3d 367, 373 (Pa. Super. 2015).

      Importantly, “[t]he withheld evidence must have been in the exclusive

control of the prosecution at the time of trial. Brady is not violated when the

appellant knew or, with reasonable diligence, could have uncovered the

evidence in question, or when the evidence was available to the defense from

other sources.” Id. (quotations and citations omitted). Thus, “there is no

Brady violation when the defense has equal access to the allegedly withheld

evidence.” Weiss, 81 A.3d at 783.

      Appellant’s Brady claim is without merit.       First, Appellant fails to

establish that the Commonwealth was aware at trial that Gregory had received

a mitigated range sentence in the unrelated DUI case in exchange for his

cooperation in this case. As indicated above, it was the Pennsylvania Office

of the Attorney General (OAG) who prosecuted this case against Appellant,

not the Mercer County District Attorney. It was the Mercer County District

Attorney’s Office, however, that prosecuted Gregory and agreed to him


                                     -4-
J-A05041-19


receiving a lesser sentence in his DUI case.    N.T., 3/12/18, at 47-49, 52.

Appellant presents no evidence indicating that the OAG was aware of this

agreement at the time of Appellant’s trial.

      Further, the trial court pointed out that there was “no documentation of

an agreement” between Gregory and the Mercer County District Attorney.

Trial Court Opinion, 4/12/18, at 11. Also, at the hearing on Appellant’s post-

sentence motion, the Deputy Attorney General commented:

      [W]hen we get a case, as was the case in this case, when we get
      a case from the District Attorney’s Office, we require that they
      give us every single piece of paper that they have. [Deputy
      Attorney General] Wagner and I went through every single piece
      of paper that was sent to us from the District Attorney’s Office.
      There is not one piece of paper in the entire amount of information
      that was sent to us from the District Attorney’s Office that
      indicated that there was any type of agreement with John Gregory
      in exchange for his testimony in this case.

N.T., 3/12/18, at 75. On this record, Appellant failed to demonstrate that the

Commonwealth willingly withheld material evidence and that the evidence was

in the exclusive control of the Commonwealth, and thus the trial court did not

err in denying Appellant’s Brady claim.

      For his second issue, Appellant argues that the trial court erred in

denying his prosecutorial misconduct claims. “Our standard of review for a

claim of prosecutorial misconduct is limited to whether the trial court abused

its discretion.” Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super.

2005). “It is within the discretion of the trial court to determine whether a

defendant has been prejudiced by misconduct or impropriety to the extent


                                     -5-
J-A05041-19


that a mistrial is warranted.” Commonwealth v. Baez, 720 A.2d 711, 729

(Pa. 1998) (quotations and citation omitted).

      With respect to prosecutorial misconduct claims, we have explained the

following:

      The Pennsylvania Supreme Court has stated that “[t]he essence
      of a finding of prosecutorial misconduct is that the prosecutor, a
      person who holds a unique position of trust in our society, has
      abused that trust in order to prejudice and deliberately mislead
      [the factfinder].” Commonwealth v. Pierce, [] 645 A.2d 189,
      197 ([Pa.] 1994). This trust includes a prosecutor’s duty to live
      up to its agreements with defense counsel. See Commonwealth
      v. Ginn, 587 A.2d 314 ([Pa. Super.] 1991) (enforcing prosecutor’s
      agreement to dismiss charges if defendants were cleared of theft
      by an accountant, despite prosecutor’s contention that
      accountant’s audit was inadequate). Prosecutorial misconduct will
      justify a new trial where the unavoidable effect of the conduct or
      language was to prejudice the factfinder to the extent that the
      factfinder was rendered incapable of fairly weighing the evidence
      and entering an objective verdict. See Pierce, [] 645 A.2d at
      196. If the prosecutorial misconduct contributed to the verdict, it
      will be deemed prejudicial and a new trial will be required.
      Commonwealth v. Weisman, [] 584 A.2d 980, 985 (Pa. Super.
      1990)[.]

Commonwealth v. Francis, 665 A.2d 821, 824 (Pa. Super. 1995).

Importantly, claims of prosecutorial misconduct are waived upon the failure

to raise a timely objection to the challenged action or inaction of the

Commonwealth. Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010).

      Appellant argues that the Commonwealth committed prosecutorial

misconduct by introducing evidence of a .45 caliber slug found in the

basement of the Residence without calling the maintenance worker who found

the bullet to testify at trial when the Commonwealth represented to the trial


                                     -6-
J-A05041-19


court and defense counsel that it was going to do so. Appellant asserts that

the Commonwealth’s misrepresentation caused the trial court to improperly

admit hearsay testimony.

        In support of this claim, Appellant cites the following portion of the trial

transcript:

        [Defense Counsel]: Your Honor, even before this trial began, I
        told them I am challenging this piece of evidence before we even
        began. Sheila White doesn’t know where it was recovered at
        because she didn’t recover it.

        THE COURT: Who recovered it then?

        [Defense Counsel]: I don’t know who recovered it. That’s the
        problem.

        [The Commonwealth Attorney 1]:         The maintenance worker is
        going to testify.

        [The Commonwealth Attorney 2]: He is going to testify.

        [Defense Counsel]: Oh, he is?

        [The Commonwealth Attorney 2]: Yes.

        [Defense Counsel]: If he is going to testify that he recovered it
        then --

        THE COURT: All right.

        [The Commonwealth Attorney 1]: Yes, the maintenance worker
        and Sheila White. They are later today.

        [The Commonwealth Attorney 2]: They are just later today.

N.T.,    8/24/17,   at   37-39.     Although    Sheila   White   did   testify,   the

Commonwealth never called the maintenance worker to the stand.




                                        -7-
J-A05041-19


      We conclude that Appellant has waived this prosecutorial misconduct

claim by failing to make a timely objection to the Commonwealth’s failure to

call the maintenance worker as a witness at trial. Although the above-cited

passage clearly reflects Appellant’s objection to the introduction of the .45

caliber slug as evidence, at no point at trial did Appellant ever state a claim of

prosecutorial misconduct relating to the bullet until he filed his post-sentence

motion.    Appellant’s failure to raise a timely prosecutorial misconduct

objection to the Commonwealth’s failure to call the maintenance worker

results in waiver. See Ali, 10 A.3d at 293.

      Even assuming, arguendo, both that Appellant had properly preserved

this claim and that the Commonwealth committed prosecutorial misconduct,

Appellant would not be entitled to relief. The record contains ample evidence,

including eyewitness testimony of the murder, indicating that Appellant killed

West and that he did not do so in self-defense as Appellant claimed. See N.T,

8/22/17, at 74-76. Thus, we cannot say that the Commonwealth’s alleged

misconduct would have rendered the jury incapable of fairly weighing the

evidence and entering an objective verdict. See Francis, 665 A.2d at 824.

Accordingly, this prosecutorial conduct claim lacks merit.

      Appellant additionally argues that the Commonwealth committed

prosecutorial misconduct when it referenced hearsay testimony from Jamal

Norman indicating that when he and West initially arrived at the Residence,

an unknown male told them to leave and not return because “[Appellant] is


                                      -8-
J-A05041-19


going to kill someone tonight.”   See N.T., 8/25/17, at 91; see also N.T.,

8/22/17, at 202-10. The trial court admitted this testimony on the basis that

defense counsel opened the door to the testimony by questioning Norman

about why he and West left the Residence earlier in the evening, and Norman

decided not to return to the Residence later with West. N.T., 8/22/17, at 202-

10.   Appellant asserts that the Commonwealth improperly treated the

testimony as substantive evidence instead of hearsay in its closing argument.

      We have stated:

         [A] prosecutor’s arguments to the jury are [generally] not a
      basis for the granting of a new trial unless the unavoidable effect
      of such comments would be to prejudice the jury, forming in their
      minds fixed bias and hostility towards the accused which would
      prevent them from properly weighing the evidence and rendering
      a true verdict.

         A prosecutor must have reasonable latitude in fairly presenting
      a case to the jury and must be free to present [his or her]
      arguments with logical force and vigor. The prosecutor is also
      permitted to respond to defense arguments. Finally, in order to
      evaluate whether the comments were improper, we do not look at
      the comments in a vacuum; rather we must look at them in the
      context in which they were made.

Commonwealth v. Proctor, 156 A.3d 261, 271-72 (Pa. Super. 2017)

(quotations and citation omitted), appeal denied, 172 A.3d 592 (Pa. 2017).

      Upon review, we conclude that Appellant has also waived this

prosecutorial misconduct claim because he failed to make a timely objection

to the Commonwealth’s statements during closing argument.         See Ali, 10

A.3d at 293; see also N.T., 8/25/17, at 91. Nevertheless, even if Appellant

had properly preserved the claim, he would not be entitled to relief.       By

                                     -9-
J-A05041-19


referencing Norman’s testimony in its closing argument, the Commonwealth

simply referred to evidence that the trial court admitted expressly on the basis

that defense counsel had opened the door to that testimony. Moreover, in

referencing this testimony, the Commonwealth was responding to Appellant’s

argument that he had acted in self-defense.       Thus, the Commonwealth’s

reference to Norman’s testimony did not constitute prosecutorial misconduct.

See Proctor, 156 A.3d at 271-72.

      Finally, Appellant argues that “not only is [A]ppellant entitled to a new

trial but also likewise a dismissal based upon double jeopardy grounds due to

the egregious level of prosecutorial misconduct.” Appellant’s Brief at 30. We

conclude that Appellant has waived this issue for failing to include it in his

Pennsylvania Rule of Appellate Procedure 1925(b) statement.

      In Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011), our Supreme Court

explained:

      Our jurisprudence is clear and well-settled, and firmly establishes
      that: Rule 1925(b) sets out a simple bright-line rule, which
      obligates an appellant to file and serve a Rule 1925(b) statement,
      when so ordered; any issues not raised in a Rule 1925(b)
      statement will be deemed waived; the courts lack the authority to
      countenance deviations from the Rule’s terms; the Rule’s
      provisions are not subject to ad hoc exceptions or selective
      enforcement; appellants and their counsel are responsible for
      complying with the Rule’s requirements; Rule 1925 violations may
      be raised by the appellate court sua sponte, and the Rule applies
      notwithstanding an appellee’s request not to enforce it; and, if
      Rule 1925 is not clear as to what is required of an appellant, on-
      the-record actions taken by the appellant aimed at compliance
      may satisfy the Rule.




                                     - 10 -
J-A05041-19


Id. at 494 (footnote omitted). Accordingly, because Appellant failed to raise

his double jeopardy claim in his Rule 1925(b) statement, he has not preserved

it for appellate review.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/01/2019




                                   - 11 -
