Com. v. McMillan, M.

• Court: Superior Court of Pennsylvania
• Decided: October 6, 2014
• Docket: 2159 EDA 2013
• Status: Unpublished

Opinion

J-S62008-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MARVIN MCMILLAN,

Appellant No. 2159 EDA 2013

Appeal from the Judgment of Sentence entered on February 15, 2013, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0001349-2011

BEFORE: ALLEN, OLSON, and OTT, JJ.

MEMORANDUM BY ALLEN, J.: FILED OCTOBER 06, 2014

imposed after a jury convicted him of voluntary manslaughter and violating

the Uniform Firearms Act in relation to the shooting death of DeWayne

Butler.

Appellant presents the following issues for our review:

I. Is [Appellant] entitled to an Arrest of Judgment on all charges as a result of a lack of sufficient evidence to sustain the verdict?

II. Is [Appellant] entitled to a new trial on all charges where the verdict is not supported by the greater weight of the evidence?

III. Is [Appellant] entitled to a new trial as the result of prosecutorial misconduct where the Assistant District Attorney alluded to the fact that [Appellant] could testify where as here, [Appellant] did not testify, the remarks were grossly prejudicial? J-S62008-14

IV. Is [Appellant] entitled to a new trial as the Trial Court permitted impermissible hearsay into the record through the reading of an Out of Court Statement where there was no legal reason to permit same?

claims of error to be unavailing. The Honorable Linda Carpenter, who

presided over the trial in this matter, has filed a comprehensive and well-

reasoned opinion, with a related Exhibit A, which we adopt and incorporate

regarding th

conduct, and the admissibility of evidence. We therefore adopt the trial

judgment of sentence.

Our affirmance reflects

determination that the prior written and adopted statement of Robert Harris,

which was given to law enforcement on the day of the shooting and which

at trial

pursuant to Pa.R.E. 803.1(1)(b). See Trial Court Opinion, 12/5/13, at 5-6;

see also Commonwealth v. Brown, 52 A.3d 1139, 1169-1171 (Pa. 2012);

Commonwealth v. Wilson, 707 A.2d 1114, 1115-1117 (Pa. 1998).

We further agree with the trial court that Appellant was not entitled to

relief regarding his claim of prosecutorial misconduct. See Commonwealth

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v. Lewis, 39 A.3d 341, 352 (Pa. Super. 2012). Our review of the record

Khalid Harris was an unavailable witness whose prior statement to law

enforcement was admissible at trial pursuant to Pa.R.E. 804(b)(6). See Trial

Court Opinion, 12/5/13, at 10-15; see also Commonwealth v. Kunkle, 79

A.3d 1173, 1186-1187 (Pa. Super. 2013).

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/6/2014

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