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Judge to rule on D'Biagio's homicide appeal motion

Apr. 2—Michael D'Biagio wants his first-degree murder conviction overturned for his admitted shooting and killing of his daughter's 17-year-old boyfriend.

His newly hired post-trial defense attorney, Christopher Lacich of Youngstown, presented several arguments in court Monday for an acquittal by mistrial or a new trial after a jury convicted D'Biagio, 46, of Beaver County, of first-degree murder in October.

D'Biagio's trial lawyer, Wendy Williams of Pittsburgh, attempted to prove his mental insanity when on July 19, 2019, he shot Darren Jevcak in cold blood outside of a pizza parlor where Jevcak was working that day. He summoned an unsuspecting Jevcak outside, accused him of hooking his daughter on drugs, then shot him six times, with the final shot aimed at his head at close range, according to trial testimony.

Testimony also revealed D'Biagio drove around looking for Jevcak before finally finding him at his workplace. A toxicology test after Jevcak's death showed no traces of cocaine or other narcotics, according to court testimony.

D'Biagio was sentenced Dec. 6 to life in prison without parole.

Lawrence County Common Pleas President Judge Dominick Motto, who presided over the trial, heard court arguments Monday about post-trial motions Lacich had filed in December in D'Biagio's defense after reading the trial transcripts.

Motto said he would take Lacich's arguments and District Attorney Joshua Lamancusa's counter-arguments under advisement and would render a decision later.

Lacich was appointed to D'Biagio's case Dec. 8 as his post-trial defense counsel, replacing Williams. He contends in his court filings the jury was made aware during trial that D'Biagio was incarcerated and the court did not instruct the jury of his presumption of innocence.

He also contests the testimony of an expert witness who he said "misled the jury" on the issue of whether D'Biagio was legally insane on the date and time of the homicide.

Lacich also contends the jury, when receiving the verdict slip for deliberations, should have been presented with the question of whether D'Biagio rebutted his presumption of sanity, and if he had, then he would be "not guilty by reason of insanity," or "guilty but mentally ill."

Lacich also notes in the filing that one juror during the trial brought to the court's attention that two main jurors were not taking the trial seriously and were making comments that 99 percent of the witnesses' testimony was irrelevant and that more than one juror was using the notepads provided by the court for purposes of drawing sketches of the trial judge.

Lacich argues Williams during the trial did not ask for more of an inquiry into that matter by the jurors being taken into the open court for questioning or for not receiving cautionary instruction on the record. Nor were the jurors examined individually in open court or chambers, to decide whether one or more jurors should be replaced with alternates, his filing states. Lacich also contends the court erred in not advising his client of his right to call character witnesses during the trial.

"This wasn't just a regular garden variety holdup," Lacich told the judge in court Monday over the issues he raised. "It involved medical issues."

He argued D'Biagio was well-liked in his community, "and we know that character witnesses can create reasonable doubt," he said, adding, "This case had some real novel types of things coming up."

He pointed out the issue of D'Biagio being kept in jail wasn't kept a secret from the jury.

"We know (homicide suspects) don't have the right to bond," he said. "It just seemed like it was over the top, with all respect to District Attorney (Joshua) Lamancusa." He said Lamancusa "hammered away" at it, in front of the jury, the fact D'Biagio was incarcerated.

Motto pointed out D'Biagio was in the courtroom during the trial dressed appropriately with no shackles on him.

Lamancusa countered it was the trial defense counsel who made a point to the jury her client was in jail.

"Attorney Williams has a long history of trying cases," he said, arguing in court that D'Biagio had chosen to go to jury trial. He said later in a phone conversation there had been discussions about a plea offer but none had ever materialized.

Opposing Lacich's argument about character witnesses, Lamancusa questioned, "Character witnesses creating reasonable doubt about what? There was no reasonable doubt about what occurred."

Lamancusa said "there were no issues" regarding the issue raised about the juror and by Williams' own agreement it was a mischaracterization of what the juror said.

He further argued the jurors' notes are not evidence in the case, and no one knows when it occurred when the juror was sketching.

"I know the verdict was not what the defense wanted," Lamancusa concluded. He argued to the judge the reasons for a mistrial or a new trial should be denied.

dwachter@ncnewsonline.com