Com. v. Palmer, J.

Superior Court of Pennsylvania

Com. v. Palmer, J.

DecidedMay 17, 2017

DocketCom. v. Palmer, J. No. 821 EDA 2016

StatusUnpublished

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Opinion

J-S17023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JEFFREY PALMER

Appellant No. 821 EDA 2016

Appeal from the Judgment of Sentence Entered January 28, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0002288-2015

BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED MAY 17, 2017

Appellant, Jeffrey Palmer, appeals from the January 28, 2016

judgment of sentence imposing life in prison without parole for first degree

murder, and concurrent terms of ten to twenty years of incarceration for

attempted murder, three to six years of incarceration for unlawful

possession of a firearm, and one to two years of incarceration for possession

of an instrument of crime.1 We affirm.

The trial court’s opinion sets forth the pertinent facts:

On July 19, 2014, residents of the 6000 block of North Beechwood Street held a block party. At around 11 p.m., while the party was winding down, Malik Hairston heard several men yelling, ‘where gray tank top at?’ Around the same, [sic] Octavious Thornton, also known as ‘Ta,’ wearing a gray tank top, ____________________________________________

1 18 Pa.C.S.A. §§ 2502(a), 901, 6106, and 907, respectively. J-S17023-17

was outside his mother’s house at [the] 6088 block of North Beechwood Street. While Thornton was moving tables and chairs from the party into the house, a group of men approached. One of the men said, ‘let me holler at you,’ in which Thornton replied, ‘I don’t know you from a can of paint.’ Another male in the group asked Thornton, ‘What’s up? What’s up?’ Then a man in a red polo shirt advised Thornton, ‘It’s just a yes or no question.’ As Thornton walked away and made his way into the house, the group of men grabbed him from the porch steps, and began punching him. More men soon gathered, and up to ten or twelve men punched Thornton and pulled him into the street. Thornton placed his back against a car and covered his body with his arms to protect himself from the barrage of punches.

Thornton’s mother, sister (Daria), and Hairston, attempted to intervene. After Hairston struck one man, and pulled him off Thornton, the group of men attacked Hairston. Hairston grabbed a rake and swung it at some of the attacking men. After Hairston swung the rake, a voice among the attacking men yelled, ‘Shoot that n*gger.’ Immediately thereafter, gunshots rang out. To avoid being shot, Hairston ran into the house at [the] 6088 block of North Beechwood through the front door. He was the only person who fled into the house. After firing the shots, the shooter jumped into a gray vehicle and drove off.

Thornton told police that the shooter had a revolver, and described him as a black male, dark skin, 25 years old, wearing a red polo shirt, approximately 5’ 6” to 5’ 8”, with a stocky build. Thornton’s sister Daria also stated that the shooter wore a red shirt. She further testified that no one else involved in the fight had a red shirt on. Following the shooting, both Thornton and Hairston identified [Appellant] from a photographic array as the male in the red polo shirt.

Almost immediately following the shooting, at or around 11:20 p.m., Police Officer James Butler saw a silver vehicle speeding southbound on Ogontz Avenue, about six to eight blocks from the shooting on Beechwood. Officer Butler and Officer Mark Austin attempted to pursue the vehicle, but lost sight of it.

Not long after Officer Butler first spotted the speeding vehicle on Ogontz Avenue, a security guard at Albert Einstein Hospital—just a few blocks from Ogontz Avenue—heard tires

-2- J-S17023-17

screeching and witnessed a gray vehicle speeding up the hospital’s emergency entrance. After the vehicle appeared to hit a guardrail, the passenger side window lowered, and the vehicle backed up and drove off. When a security guard inspected the guardrail for damage, he saw a gun lying nearby in the grass.

Roughly a minute after losing sight of the vehicle on Ogontz Avenue, Offices Butler and Austin responded to Einstein Hospital for a report of a gunshot victim, later identified as Thomas Fields, who had just arrived. Fields was pronounced dead at 11:40 p.m. The cause of death was a gunshot wound to the neck and the manner of death was homicide. A bullet entered the right side, upper back, near the neck. It traveled through the neck, striking the cervical spine, and perforated the right vertebral arteries, which provide blood to the brain. The bullet exited the front of the neck.

Upon their arrival at the hospital, Officers Butler and Austin noticed the same vehicle that they had just observed speeding on Ogontz parked in front of the ER. The passenger door was ajar, and a large amount of blood was on the vehicle’s interior. The officers secured the vehicle, believing that it was a crime scene. Blood was subsequently found on the vehicle’s seat, armrest, floor, door panel, and console. The front passenger side wheel was also flat.

Officer Austin then entered the hospital to locate the driver of the silver/gray vehicle. In the ER lobby, he found [Appellant] exiting the bathroom. There, [Appellant] informed the officer that an altercation took place at a cookout and someone there was shot. The police later took [Appellant] to the Homicide Unit for questioning.

On July 20, 2014, [Appellant] gave a statement to police, in which he told detectives that he was present when a shooting occurred at Beechwood. He said that he saw a fight break out at a block party and then heard gunshots. He also said that after the gunshots, Fields, his friend, said to him that he could not breath. [Appellant] stated that Fields had asthma. He claimed that after he and Fields got into his car to drive to the hospital, Fields coughed up blood.

Police later recovered a security video from Einstein Hospital. On the night of the shooting, at approximately 11:25:28, the camera captured [Appellant’s] vehicle driving up

-3- J-S17023-17

to the hospital’s emergency room ramp. At 11:26:14, the video showed [Appellant’s] vehicle, both doors open, pulling up outside the ER. [Appellant] existed [sic] the vehicle wearing a red polo shirt. Roughly thirty seconds later, [Appellant] removed the shirt, and threw it over a guardrail past where his vehicle was parked. A few minutes later, [Appellant] retrieved the shirt and tossed it into the trunk of the vehicle.

The police later recovered the gun that was lying near the hospital guardrail. The gun, a revolver, held two fired cartridge casing (“FCCs”) and three live rounds—all of which were .38 caliber and of the same manufacture. A total of four ballistic pieces were recovered from the shooting scene at 6088 North Beechwood Street, including two copper fragments found on the property, a lead fragment in the outside wall near the doorframe, and a projectile in the front door, five inches south of the doorknob. Officer Raymond Andrejczak, of the Police Firearms Identification Unit, concluded to a reasonable degree of scientific certainty that both copper fragments, the projectile, and both FCCs in the gun were all fired in and from the subject revolver. The remaining piece (the lead fragment) was unsuitable for microscopic comparison, but was consistent with a 9 millimeter/.38 caliber projectile. The subject revolver was incapable of firing a 9 millimeter bullet.

Trial Court Opinion, 4/18/16, at 2-5 (record citations omitted).

On August 4, 2014, police arrested Appellant for the murder of Fields.

After a January 28, 2016 trial, a jury found Appellant guilty of the

aforementioned offenses. The trial court imposed sentence immediately.

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J-S17023-17

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

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JEFFREY PALMER

Appellant No. 821 EDA 2016

Appeal from the Judgment of Sentence Entered January 28, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0002288-2015

BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED MAY 17, 2017

Appellant, Jeffrey Palmer, appeals from the January 28, 2016

judgment of sentence imposing life in prison without parole for first degree

murder, and concurrent terms of ten to twenty years of incarceration for

attempted murder, three to six years of incarceration for unlawful

possession of a firearm, and one to two years of incarceration for possession

of an instrument of crime.1 We affirm.

The trial court’s opinion sets forth the pertinent facts:

On July 19, 2014, residents of the 6000 block of North Beechwood Street held a block party. At around 11 p.m., while the party was winding down, Malik Hairston heard several men yelling, ‘where gray tank top at?’ Around the same, [sic] Octavious Thornton, also known as ‘Ta,’ wearing a gray tank top, ____________________________________________

1 18 Pa.C.S.A. §§ 2502(a), 901, 6106, and 907, respectively. J-S17023-17

was outside his mother’s house at [the] 6088 block of North Beechwood Street. While Thornton was moving tables and chairs from the party into the house, a group of men approached. One of the men said, ‘let me holler at you,’ in which Thornton replied, ‘I don’t know you from a can of paint.’ Another male in the group asked Thornton, ‘What’s up? What’s up?’ Then a man in a red polo shirt advised Thornton, ‘It’s just a yes or no question.’ As Thornton walked away and made his way into the house, the group of men grabbed him from the porch steps, and began punching him. More men soon gathered, and up to ten or twelve men punched Thornton and pulled him into the street. Thornton placed his back against a car and covered his body with his arms to protect himself from the barrage of punches.

Thornton’s mother, sister (Daria), and Hairston, attempted to intervene. After Hairston struck one man, and pulled him off Thornton, the group of men attacked Hairston. Hairston grabbed a rake and swung it at some of the attacking men. After Hairston swung the rake, a voice among the attacking men yelled, ‘Shoot that n*gger.’ Immediately thereafter, gunshots rang out. To avoid being shot, Hairston ran into the house at [the] 6088 block of North Beechwood through the front door. He was the only person who fled into the house. After firing the shots, the shooter jumped into a gray vehicle and drove off.

Thornton told police that the shooter had a revolver, and described him as a black male, dark skin, 25 years old, wearing a red polo shirt, approximately 5’ 6” to 5’ 8”, with a stocky build. Thornton’s sister Daria also stated that the shooter wore a red shirt. She further testified that no one else involved in the fight had a red shirt on. Following the shooting, both Thornton and Hairston identified [Appellant] from a photographic array as the male in the red polo shirt.

Almost immediately following the shooting, at or around 11:20 p.m., Police Officer James Butler saw a silver vehicle speeding southbound on Ogontz Avenue, about six to eight blocks from the shooting on Beechwood. Officer Butler and Officer Mark Austin attempted to pursue the vehicle, but lost sight of it.

Not long after Officer Butler first spotted the speeding vehicle on Ogontz Avenue, a security guard at Albert Einstein Hospital—just a few blocks from Ogontz Avenue—heard tires

-2- J-S17023-17

screeching and witnessed a gray vehicle speeding up the hospital’s emergency entrance. After the vehicle appeared to hit a guardrail, the passenger side window lowered, and the vehicle backed up and drove off. When a security guard inspected the guardrail for damage, he saw a gun lying nearby in the grass.

Roughly a minute after losing sight of the vehicle on Ogontz Avenue, Offices Butler and Austin responded to Einstein Hospital for a report of a gunshot victim, later identified as Thomas Fields, who had just arrived. Fields was pronounced dead at 11:40 p.m. The cause of death was a gunshot wound to the neck and the manner of death was homicide. A bullet entered the right side, upper back, near the neck. It traveled through the neck, striking the cervical spine, and perforated the right vertebral arteries, which provide blood to the brain. The bullet exited the front of the neck.

Upon their arrival at the hospital, Officers Butler and Austin noticed the same vehicle that they had just observed speeding on Ogontz parked in front of the ER. The passenger door was ajar, and a large amount of blood was on the vehicle’s interior. The officers secured the vehicle, believing that it was a crime scene. Blood was subsequently found on the vehicle’s seat, armrest, floor, door panel, and console. The front passenger side wheel was also flat.

Officer Austin then entered the hospital to locate the driver of the silver/gray vehicle. In the ER lobby, he found [Appellant] exiting the bathroom. There, [Appellant] informed the officer that an altercation took place at a cookout and someone there was shot. The police later took [Appellant] to the Homicide Unit for questioning.

On July 20, 2014, [Appellant] gave a statement to police, in which he told detectives that he was present when a shooting occurred at Beechwood. He said that he saw a fight break out at a block party and then heard gunshots. He also said that after the gunshots, Fields, his friend, said to him that he could not breath. [Appellant] stated that Fields had asthma. He claimed that after he and Fields got into his car to drive to the hospital, Fields coughed up blood.

Police later recovered a security video from Einstein Hospital. On the night of the shooting, at approximately 11:25:28, the camera captured [Appellant’s] vehicle driving up

-3- J-S17023-17

to the hospital’s emergency room ramp. At 11:26:14, the video showed [Appellant’s] vehicle, both doors open, pulling up outside the ER. [Appellant] existed [sic] the vehicle wearing a red polo shirt. Roughly thirty seconds later, [Appellant] removed the shirt, and threw it over a guardrail past where his vehicle was parked. A few minutes later, [Appellant] retrieved the shirt and tossed it into the trunk of the vehicle.

The police later recovered the gun that was lying near the hospital guardrail. The gun, a revolver, held two fired cartridge casing (“FCCs”) and three live rounds—all of which were .38 caliber and of the same manufacture. A total of four ballistic pieces were recovered from the shooting scene at 6088 North Beechwood Street, including two copper fragments found on the property, a lead fragment in the outside wall near the doorframe, and a projectile in the front door, five inches south of the doorknob. Officer Raymond Andrejczak, of the Police Firearms Identification Unit, concluded to a reasonable degree of scientific certainty that both copper fragments, the projectile, and both FCCs in the gun were all fired in and from the subject revolver. The remaining piece (the lead fragment) was unsuitable for microscopic comparison, but was consistent with a 9 millimeter/.38 caliber projectile. The subject revolver was incapable of firing a 9 millimeter bullet.

Trial Court Opinion, 4/18/16, at 2-5 (record citations omitted).

On August 4, 2014, police arrested Appellant for the murder of Fields.

After a January 28, 2016 trial, a jury found Appellant guilty of the

aforementioned offenses. The trial court imposed sentence immediately.

On January 29, 2016, Appellant filed a post-sentence motion challenging the

weight and sufficiency of the evidence. The trial court denied that motion on

February 11, 2016. This timely appeal followed. Appellant presents three

questions for our review:

I. Did the trial court err, abuse its discretion, and unfairly prejudice [Appellant] when the court overruled an

-4- J-S17023-17

objection and allowed the prosecutor to vouch for witnesses during closing argument?

II. Was the evidence sufficient as a matter of law to convict [Appellant] of murder of the first degree?

III. Was the verdict against the weight of the evidence?

Appellant’s Brief at 5.

Appellant first asserts that the trial court erred in overruling his

objection to the prosecutor’s alleged misconduct. Appellant argues that the

prosecutor improperly vouched for the credibility of the investigating police

officers.

It is well established that the prosecution may not inject a highly prejudicial personal opinion of [an] appellant’s credibility into evidence, thereby clearly and improperly intruding upon the jury’s exclusive function of evaluating the credibility of witnesses. However, as long as a prosecutor does not assert his personal opinions, he or she may, within reasonable limits, comment on the credibility of a Commonwealth witness. This is especially true when the credibility of the witness has been previously attacked by the defense. This stems from the general principle that the prosecutor is permitted to respond to the arguments of the defense and is free to present his or her case with logical force and vigor.

Commonwealth v. Tedford, 960 A.2d 1, 31–32 (Pa. 2008).

Several witnesses who gave contemporaneous statements to the

police testified at trial that the police coerced or fabricated their statements.

During closing argument, defense counsel attacked the credibility of the

testifying police officers. The prosecutor, during his closing argument,

responded with sarcasm, saying that the alleged fabrications did not

significantly advance the prosecution’s case. The prosecutor also opined

-5- J-S17023-17

that officers with a combined 150 years of experience are unlikely to

fabricate evidence. The prosecutor did not offer a personal opinion as to any

witnesses’ credibility. For the reasons explained on pages 5 to 8 of the trial

court’s April 18, 2016 opinion, we conclude that Appellant’s argument lacks

merit.

Next, Appellant challenges the weight and sufficiency of the evidence.

As the trial court correctly noted, Appellant’s Pa.R.A.P. 1925(b) statement

contains only bald assertions that his convictions are against the weight and

sufficiency of the evidence. Bald assertions are insufficient to preserve the

issue for review. Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super.

2006), appeal denied, 919 A.2d 956 (Pa. 2007). For the reasons explained

in the trial court’s opinion, Appellant has waived his challenges to the weight

and sufficiency of the evidence.

In summary, we have concluded that Appellant’s first argument lacks

merit, and the second and third arguments are waived. We therefore affirm

the judgment of sentence. We direct that a copy of the trial court’s opinion

be filed along with this memorandum.

Judgment of sentence affirmed.

-6- J-S17023-17

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/17/2017

-7- Circulated 04/27/2017 05:21 Plv1 I

IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA CP-5l-CR-0002288-2015 FILE.D v. fl.PR 1 S 20\6 Crimina\ App~a\~ Un\t JEFFREY PALMER r,:\rn\ Judicia\ D1s\nct ot PA OPINION Mclrermott, J. April 18, 2016

Procedural History

On August 4, 2014, the Defendant, Jeffrey Palmer, was arrested and charged with

Murder, Conspiracy, Attempted Murder, Aggravated Assault, Possession of Firearm Prohibited,

Firearms Not to be Carried Without License, Carrying Firearms in Public in Phlladeiphia, and

Possession of an Instrument of Crime ("PIC"). On January 25, 2016, the Defendant appeared

before this Court and elected to be tried by a jury. On January 28, 2016, the jury returned

verdicts of guilty to First-Degree Murder, Attempted Murder, Aggravated Assault, Firearms Not

to be Carried Without License, and PIC.

On that same date, this Court imposed a term of imprisonment of life without the

possibility of parole for First- Degree Murder, and concurrent terms of ten to twenty years for

attempted murder, 1 three to six years for Firearms Not to be Carried Without License, one to two

years for PIC.

On January 29, 2016, the Defendant filed a post-sentence motion challenging the weight

and sufficiency of the evidence. On February 11, 2016, this Court denied the motion. On

I Attempted Murder and Aggravated Ass11ult merged. February 17, 20161 the Defendant tiled a timely Notice of Appeal. On February 23, 2016, this

Court ordered the Defendant to submit a Statement of Matters Complained of on Appeal

pursnant Pn.R.A.P. l 925(b ). On March 10, 2015, the Defendant filed a Motion for Extension of

Time to file a Statement of Matters Complained of, which this Court granted on March 14. On

April 4, 2016, the Defendant timely filed a Concise Statement of Matters Complained of on

Appeal.

Facts

Ou July 19, 2014, residents of the 6000 block of North Beechwood Street held a block

party. Al around 11 p.m., while the party was winding down, Malik Hairston heard several men

yelling, "where gray tank top at?" Around the same, Octavious Thornton, also known ns "Ta,"

wearing a gray tank top, was outside his mother's house at 6088 block of North Beechwood

Street. While Thornton was moving tables and chairs from the party into the house, a grO\lP of

men approached. One of the men said, "let me holler at you," in which Thornton replied, "I

don't know you from a can of paint." Another male in the group asked Thornton, "What's up?

What's up?" Then a man in a red polo shirt advised Thornton, "It's just a yes or no question."

As Thornton walked away and made his way into the house, the group of men grabbed him from

the porch steps, and began punching him. More men soon gathered, and up to ten or twelve men

punched Thornton and pulled him into the street. Thornton placed his back against a car and

covered his body with his arms to protect himself from the barrage of punches, N.T. 1/25/2016 at

95-99; N.T. 1/26/2016 at 85-86, 102.

Thornton's mother, sister (Daria), and Hairston, attempted to intervene. After Hairston

struck one man, and pulled him off Thornton, the group of men attacked Hairston. Hairston

grabbed a rake and swung it at some of the attacking men. After Hairston swung the rake, a

2 voice among the attacking men yelled, "Shoot that n+gger." Immediately thereafter, gunshots

rnng out. To avoid being shot, Hairston ran into the house at 6088 block of North Beechwood

through the front door. He was the only person who fled into the house. After firing the shots,

the shooter jumped into a gray vehicle and drove off. N.T. 1/25/2016 at I 00-05, 115-17; N.T.

1/26/2016at 92-95, 127, 180-85.

Thornton told police that the shooter had a revolver, and described him as a black male,

dark skin, 25 years old, wearing a red polo shirt, approximately 5'6" to 5'8", with a stocky build.

Thornton's sister Darin also stated that the shooter wore a red shirt. She further testified that no

one else involved in the fight had a red shirt on. Following the shooting, both Thornton and

Hairston identified the Defendant from n photographic array as the male in the reel polo shirt.

N.T. 1/25/2016 at 117-19; N.T. 1/26/2016 at l03, 182.

Almost immediately following the shooting, at or around 11 :20 p.m., Police Officer

James Butler saw a silver vehicle speeding southbound on Ogontz Avenue, about six to eight

blocks from the shooting on Beechwood. Officer Butler and Officer Mark Austin attempted to

pursue the vehicle, but lost sight of it. N.T. 1/26/2016 at 26-33, 307-09.

Not long after Officer Butler first spotted the speeding vehicle on Ogontz Avenue, a

security guard nt Albert Einstein Hospital-just a few blocks from Ogontz Avenue+-heard tires

screeching and witnessed a gray vehicle speeding up the hospital's emergency entrance. After

the vehicle appeared to hit a guardrail, the passenger side window lowered, and the vehicle

backed up and drove off. When the security guard inspected the guardrail for damage, he saw a

gun lying nearby in the grass. N.T. l/26/2016 at 60-68.

Roughly a minute after losing sight of the vehicle on Ogontz A venue, Officers Butler and

Austin responded to Einstein Hospital for n report of a gunshot victim, later identified as Thomas

3 Fields, who had just arrl ved. Fields was pronounced dead at 11 :40 p.m. The cause of death was

a gunshot wound to the neck and the manner of death was homicide. A bullet entered the right

side, upper back, near the neck. It traveled through the neck, striking the cervical spine> and

perforated the right vertebral arteries, which provide blood to the brain. The bullet exited the

front of the neck. N.T. 1/26/2016 at 26-27, 307-09; N.T, 1/27/2016 at 83-85.

Upon their arrival at the hospital, Officers Butler and Austin noticed the same vehicle

that they had just observed speeding on Ogontz parked in front of the ER. The passenger door

was ajar, and a large amount of blood was on the vehicle's interior. The officers secured the

vehicle, believing that it was a crime scene. Blood was subsequently found on the vehicle's seat,

armrest, floor, door panel, and console. The front passenger side wheel was also flat. N.T.

1/26/2016 at 29-33, 295-96, 307-09; N.T. 1/27/2016 at 29, 32.

Officer Austin then entered the hospital to locate the driver of the silver/gray vehicle. In

the ER lobby, he found the Defendant exiting the bathroom. There, the Defendant informed the

officer that an altercation took place at a cookout and someone there was shot. The police later

took the Defendant to the Homicide Unit for questioning. N.T. 1/26/2016 at 309-11.

On July 201 2014, the Defendant gave a statement to police, in which he told detectives

that he was present when a shooting occurred at Beechwood. He said that he saw a fight break

out at a block party and then heard gunshots, He also said that after the gunshots, Fields, his

friend, said to him that he could not breathe. The Defendant stated that Fields had asthma, He

claimed that after he and Fields got into his car to drive to the hospital, Fields coughed \IP blood.

Id. at 174-91. Police Inter recovered a security video from Einstein Hospital. On the night of the

shooting, at approximately 11 :25:28, the camera captured the Defendant's vehicle driving \IP to

4 the hospital's emergency room ramp. At 11:26:14, the video showed the Defendant's vehicle,

both doors open, pulling up outside the ER. The Defendant existed the vehicle wearing a red

polo shirt. Roughly thirty seconds later, the Defendant removed the shirt, and threw it over a

guardrail past where his vehicle was parked. A few minutes Inter, the Defendant retrieved the

shirt and tossed it onto the trunk of his vehicle. N.T. 1/27/2016 at 201-11, 242-43.2

The police later recovered the gun that was lying near the hospital guardrail. The gun, a

revolver, held two fired cartridge casing ("FCCs") and three live rounds-all of which were .38

caliber and of the same manufacture. A total of four ballistic pieces were recovered from the

shooting scene at 6088 North Beechwood Street, including two copper fragments found on the

property, a lend fragment in the outside wall near the doorframe, and a projectile in the front

door, five inches south of the doorknob. Officer Raymond Andrejczak, of the Police Firearms

Identiflcalion Unit, concluded to a reasonable degree of scientific certainly that both copper

fragments, the projectile, and both FCCs in the gun were all fired in and from the subject

revolver, The remaining piece (the lead fragment) was unsuitable for microscopic comparison,

but was consistent with a 9 millimetcr/.38 caliber projectile, The subject revolver was incapable

of'firlng a 9 millimeter bullet. N.T. 1/25/2016 at 84; N.T. 1/26/2016 at 182, 263-70.

Discussion

The Defendant alleges that this Court erred when it overruled the Defendant's objection

and permitted the prosecutor to vouch for detectives and police officers. The Defendant also

2 A mixture of DNA was taken from the back collar of the red polo shirt. Be11ja111iu Levin, a forensic scientist, testified Lon rensonable degree of sclentlflc certainty that the major component la ken from the back collar was consistent with tt mixture orlginutlng from Cit least two contributors, one of which had a high probability of being Jeffrey Palmer. N.T. l/27/2016 at 59--63.

5 makes weight and sufficiency claims for First-Degree Murder, Attempted Murder, Aggravated

Assault, Firearms Not to be Carried Without License, and PIC.

Fo1· the Defendant's first issue, during closing remarks, in response to insinuations that

the detectives coerced witnesses, the Commonwealth referenced the detectives who had testified

at trial. In his remarks, the Commonwealth reiterating the detectives' law enforcement

experience and sarcastically chastised them for not "fixing" the case better:

COMMONWEALTH: Every insinuation has been made that Detective Harkins, Detective Fettersl.] who is here, that they what? That they forced people to say things; that they put things in the statement. Presumably to do what, right? To make their case better, right? To get the prosecution's conviction because it means so much to me. Every prosecution does because he means so much to them, to the Fields family) and every other family. But that's insinuation, right, that the detectives forced them, to say things to make the case better. Well, you heard me ask each of the detectives, nHow long have you been on force? How long were you in homicide? To get promoted to homicide, where were you"]"] I wasn't doing that for fluff. I was doing that so you could hear how long they were on the force. Why? Because they're not rookies. Thirty years, 26 years, 27 years; among them, over 150 years of experience. So, okay, they're going to fabricate, right[?] Detective Harkins is going to make Malik [Hairston] say what he wants him to say, make the case better .. Okay. Well, when you have Malik in there, right, and you want to frame I suppose the [D'[efendant, here's what was forced upon Malik Hairston, This is what was forced upon him, right? He didn't want to say it, it was forced.

Well, if this is what's happening, that they're and forcing cases. Detective Harkins, next time you're going to force someone to do something, please force them to identify the defendant as actually shooting. Because this doesn't do anything for me. Force them to say he's the shooter, That's what's going to help me, right, not this nonsense. They're [referring to the detectives] fixing the case? Make it better.

N.T. 1/28/2016 at 86. Following closing arguments, defense counsel objected to the remarks and

argued that the Commonwealth was "vouchsnfing" and "vouching" for the detectives. Defense

6 counsel requested a curative instruction to Instruct the jury not to give greater weight to the

witnesses because they are detectives, which this Court denied.

· It is well-established that a prosecutor is free to present his argument with logical force

and vigor so long as there is a reasonable basis in the record for the prosecutor's remarks.

Commonwealth v. Hutchinson, 25 A.3d 277, 306 (Pa. 2011). Reversible error arises from a

prosecutor's comments only where their unavoidable effect is to prejudice the jurors, forming in

their minds a fixed bias and hostility toward the defendant such that they could not weigh the

evidence objectively and render a fair verdict. Commonwealth v, Tedford, 960 A.2d 1, 33 (Pa,

2008). The prejudicial effect of the prosecutor's remarks must be evaluated in the context in

which they occurred. Commonwealth v. Gooding, 649 A.2d 722, 727 (Pa. Super. 1994) (citing

Commonwealth v. D 'Amato, 526 A.2d 300, 309 (Pa, 1987) (citations omitted)). The effect of

remarks made in closing arguments is to be ascertained by the trial judge. Commonwealth v.

Williams, 433 A.2d 505 (Pa. Super. 198 I) (citing Commonwealth v. Stoltzfus, 337 A.2d 873, 882

(Pa. 1975)). The remedy to be applied in each case is within the discretion of the trial judge.

Stolfrrs, 337 A.2d at 882; Commonwealth v. Silvis, 284 A.2d 740, 741 (Pa. 1971).

The prosecutor's remarks and his use of sarcasm to appeal to the commonsense of the

jury were well within the pennissible bounds. Additionally, before closing arguments, this Court

properly instructed the jury that the)' were not bound by the attorneys' recollection of the

evidence nor their conclusions of the facts, and that it was for the jury to decide what arguments,

if any, appeal to their reason and commonsense. N.T. 1/28/2016 at 21-22. Moreover, at the start

of trial, and in its final charge, this Court instructed the jury that they were the judges of a

witness's credibility. N.T. 1 /25/2016 at 18. The jury is presumed to follow these instructions.

7 Commonwealth v. Jones, 668 A.2d 491, 503-04 (Pa. 1995). For the foregoing reasons, the

Defendant is not entitled to relief,

For the Defendant's next issue, he baldly asserts that the evidence for each of his

convictions was insufficient. This Court finds the Defendant's 1925(b) Statement deficient as he

neglects to specify how the evidence failed to establish which clements of each offense. As

Superior Court has held, "[ijf Appellant wants to preserve a clnlm that the evidence was

insufficient, then the 1925(b) Statement needs to specify the element or clements upon which the

evidence was insufficient." Commonwealth \'. Manley, 985 A.2d 256 (Pa. Super. 2009) (q1101/11g

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)); Commonwealth v.

Reeves, 907 A.2d l (Pa. Super. 2006), appeal denied, 919 A.2d 956 (Pa. 2007). For this reason,

the sufficiency issues are deemed waived. For the benefit of any future proceedings, however,

this Com-twill address the sufficiency of the evidence fol' each of the Defendant's convictions.

Evidence presented at trial is sufficient when, viewed in the light most fovornblc to the

Commonwealth as the verdict winner, the evidence and all reasonable inferences derived

therefrom are sufficient to establish all elements of the offense beyond a reasonable doubt.

Commonwealth v. Baum hammers, 960 A.2d 59, 68 (Pa. 2008). The Commonwealth may sustain

its burden of proving each element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence. Commonwealth v. Estepp, 17 A.3d 939, 943 (Pa. Super, 2011) (citing

Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 20 ! 0)). The fact-finder is free to

believe all, part, or none of the evidence, and credibility determinations rest solely within the

purview of the fact-finder. Commonwealth v. Treiber, 874 A.2d 26, 30 (Pa. 2005). The Superior

Court considers nil the evidence admitted, without regard to any claim of wrongly admitted

8 evidence. Co111111011wealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010). The Superior Court will

also not weigh the evidence or make credibility determinations. Jd.

First-Degree Murder is any unlawful killing committed with malice and the specific

intent to kill. 18 Pa.C.S. § 2502(a); Commonwealth \'. Johnson, '12 A.3d IO 17, 1025 (Pa. 2012).

The specific intent to kill as well as malice can be inferred from the use of a deadly weapon \1po11

a vital part of the victim's body. Commonwealth v, Thomas, 54 A.3d 332, 335-36 (Pa. 2012);

Commonwealth v. Ramtahal, 33 A.3d 6021 607 (Pa. 201 l) (citing Commonwealth P. Smith, 985

A.2d 886, 895 (Pa. 2009)). Evidence is sufficient to sustain a conviction for First-Degree

Murder when the Commonwealth establishes that: (I) a human being was unlawfully killed; (2)

the accused is responsible for the killing; and (3) the accused acted with specific intent. 18

Pa.C.S. § 2502(a); Commonwealth v. Chambers, 980 A.2d 35, 44 (Pa. 2009). The

Commonwealth may establish that a defendant intentionally killed the victim wholly through

circumstantial evidence, lei. ( citing Commonwealth v. Rivera, 773 A.2d 131, 135 (Pa. 2001)).

Under the doctrine of transferred intent, the intent to murder may be transferred where

the person actually killed is not the intended victim. See Commonwealth v. Jones, 912 A.2d 268

(Pa. 2006) (find ing that appellant had specific intent to kill a bystander, who was not the specific

target, where appellant shot others three or four times at close range and killed the bystander

with a single gunshot wound to the chest). The theory behind the doctrine is that if the intent to

commit a crime exists, this intent can be transferred for the purpose of finding the intent element

of another crime. Commonwealth v. Thompson, 739 A.2d 1023, l 030 (Pa. 1999) (citing

Commonwealth ii. Gibbs, 626 A.2d 133 (Pa. 1993)).

In the case at bar, sufficient evidence established that the Defendant, with the specific

intent to kill, murdered Thomas Fields. The cause of death was a gunshot wound to Fields' neck.

9 N.T. 1/27/2016 at 83-85. Thornton identified the Defendant as the shooter. N.T. 1/25/2016 at

117-18. Thornton's sister Daria stated that the shooter wore a red polo shirt and both Hairston

anci Thornton identified the Defendant as the person in the red polo shirt. N. T. 1125/2016 at 119;

N .T. I /26/2016 at 103, 182. The Defendant was the only person present in the fight wearing a

red shirt, which he still had on when he arrived at the ER with Fields. N.T. 1/26/2016 at 182;

N.T. 1127/2016 at 201-11. In addition, the police found a revolver on the hospital grounds near

where the Defendant appeared to strike a guardrail and lowered his window. N.T. 1/26/2016 at

60-68. Both copper fragments and the projectile, found at Beechwood, were fired from the

found revolver. Id. at 182, 265-69.

In addition to the evidence establishing the Defendant as the shooter, the evidence also

showed that the Defendant specifically intended to shoot Hairston, and not in self-defense, as the

Defendant was part of the group of men that was not free from fault in provoking or continuing

the difficulty which resulted in the fight and subsequent shooting. See Commonwealth v.

Mo11zo11, 53 A.3d 738 (Pa. 2012). Because the Defendant shot at Hairston after a voice among

the attacking men yelled, "Shoot that n* gger," coupled with the fact that police found a bullet

fragment near the door frame and a projectile in the door of 6088 North Beechwood, indicated

that the Defendant specifically aimed at Hairston as Hairston fled into the house. N.T. 1/25/2016

at 84; N.T. 1/26/2016 at 92, 180-85. Hairston was the only participant in the fight to nm into the

house, N.T. 1/26/2016 at 127. That the Defendant's intended target was Hairston, and not

Fields, is of no moment, as the Defendant's intent to kill Hairston was transferred to Fields. See

Jones and Thompson, supra.

The Defendant challenges the sufficiency of the evidence for his convictions for

attempted murder and aggravated assault, A person is guilty of attempted murder if he takes "a

10 substantial step to words an intentional killing." Commonwealth v. Wesley, 860 A.2d 5 85, 593

(Pa. Super. 2004); see also 18 Pa.C.S.A. § 90l(a). [fa defendant Hikes a "substantial step toward

the commission of a killing, with the specific intent in mind to commit such an act, he may be

convicted of attempted murder." !11 re R.D., 44 A.Jd 657, 678 (Pa. Super. 2012). The

"substantial step test broadens the scope of attempt liability by concentrating 011 the acts the

defendant has done and does not any longer focus on the acts remaining to be done before the

actual commission of the crime." Id. (quoting Co111mo11111ealth v. Gilliam, 417 A.2d 12031 1205

(Pa. Super. 1980)). The Commonwealth may also solely use circumstantial evidence to establish

the mens rea required for first-degree nnuder=-the specific intent to kill. /11 re R.D., 44 A.3d at

678 (citing Commonwealth v. Schoff, 91 [ A.2d 14 7, 160 (Pa.Super.2006)).

To sustain a conviction fol' aggravated assault, the Commonwealth must prove that the

Defendant either attempted if he "attempts to cause serious bodily Injury to another, or causes

such injury intentionally, knowingly or recklessly under circumstances manifesting extreme

indifference to the value of human life." 18 Pa.C.S. § 2702(a)(l ); Commonwealth v. Matthew,

909 A.2d 1254, 1257 (Pa. 2006). "Serious bodily injury" is defined as "[b [odily injury which

creates a substantial risk of death or which causes serious permanent disfigurement, or protracted

loss or impairment of the function of any bodily member or organ." Commonwealth v. Lewis,

911 A.2d 558, 564 (Pa. Super. 2006); 18 Pa.C.S. § 2301. For aggravated assault purposes, an

attempt is found where the accused, with the required specific intent, acts in a manner which

constitutes a substantial step toward perpetrating a serious bodily injury upon another.

Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. Super, 2005) (citation omitted).

In the instant matter, the Defendant's actions clearly constituted attempted murder. The

Defendant aimed a gun and fl~ed at Hairston after someone requested him to do so-this clearly

- 11 established that he took a substantial step toward an intentional killing and demonstrated that he

had the requisite intent to shoot and kill Hairston. N.T. 1/26/2016 at 92, 180-85. The same

evidence also sufficiently demonstrated aggravated assault as the Defendant's act of aiming a

gun and firing at Hairston constituted a substantial step toward perpetrating a serious bodily

injury upon another.

The Defendant also challenges his convictions for Carrying a Firearm in Public Without a

License and PIC. To convict a defendant of Carrying a Firearm in Public Withouta License, the

Commonwealth must prove: "(a) that the weapon was a firearm, (b) that the firearm was

unlicensed, and (c) that where the firearm was concealed on or about the person, it was outside

his home or place of business." Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004);

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