Com. v. Walker, J.

• Court: Superior Court of Pennsylvania
• Decided: September 18, 2017
• Docket: 1425 WDA 2016
• Status: Unpublished

Opinion

J-S43011-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSHUA JEROME WALKER

Appellant No. 1425 WDA 2016

Appeal from the Judgment of Sentence Entered August 24, 2016 In the Court of Common Pleas of Erie County Criminal Division at No: CP-25-CR-0000691-2015

BEFORE: STABILE, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 18, 2017

Appellant Joshua Jerome Walker appeals from the August 24, 2016

judgment of sentence entered in the Court of Common Pleas of Erie County

(“trial court”), following his jury convictions for third-degree murder and

aggravated assault. Upon review, we affirm.

On October 6, 2014, the Erie Police Department charged Appellant

with, among other things, criminal homicide and aggravated assault in

connection with the killing of David McLendon, who was discovered in a

prone position on a sidewalk in Erie. This case proceeded to a jury trial,

following which Appellant was convicted of the above-mentioned crimes. On

August 24, 2016, the trial court sentenced Appellant to 240 to 480 months’

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* Former Justice specially assigned to the Superior Court. J-S43011-17

imprisonment for his conviction for third-degree murder.1 Appellant did not

file any post-sentence motions. On September 19, 2016, Appellant

appealed to this Court. At the trial court’s behest, Appellant filed a Pa.R.A.P.

1925(b) statement of errors complained of on appeal. In response, the trial

court issued a Pa.R.A.P. 1925(a) opinion.

On appeal, Appellant raises two issues for our review:

[I.] Did the trial court commit an abuse of discretion or error of law when it failed to give a voluntary manslaughter instruction to the jury?

[II.] Did the trial court err when it permitted the prosecutor to argue in closing that Appellant had money in his possession, and money was a motive for the killing, when the court granted a judgment of acquittal as to robbery and theft when the Commonwealth rested its case?

Appellant’s Brief at 6.

After careful review of the record and the relevant case law, we

conclude that the trial court accurately and thoroughly addressed Appellant’s

claims. See Trial Court Opinion, 12/13/16, at 1-4. In so doing, the trial

court correctly concluded that Appellant failed to preserve his claims for

appeal. Specifically, he did not object to the trial court’s failure to give a

charge of voluntary manslaughter,2 or the Commonwealth’s closing

1 The trial court did not impose an additional penalty for aggravated assault as it merged with third-degree murder. 2 Our review of the trial transcript reveals that Appellant not only failed to request a charge of voluntary manslaughter at trial, but that his trial counsel specifically asked the trial court not to “include that instruction.” N.T. Trial, 5/27/16, at 2-3.

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argument.3 Accordingly, we affirm Appellant’s August 24, 2016 judgment of

sentence. We further direct that a copy of the trial court’s December 13,

2016 opinion be attached to any future filings in this case.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/18/2017

3 The record reveals that Appellant waived a challenge to the Commonwealth’s closing argument by failing to make a timely objection, or requesting a curative instruction. See Commonwealth v. May, 31 A.3d 668, 673 (Pa. 2011) (citing Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”)); see also Pa.R.E. 103(a) (party may claim error in admission of evidence only when party makes a timely objection); Pa.R.Crim.P. 605(B) (“When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial, the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.”); Commonwealth v. Szakal, 50 A.3d 210, 219 (Pa. Super. 2012).

-3- Circulated 08/28/2017 03:16 PM