Com. v. Palmer, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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
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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
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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
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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
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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.
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J-S17023-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2017
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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);
see also 18. Pa. C.S.A. § 6 L 06.
To secure a conviction for PIC, the Commonwealth must show that a defendant
possessed an instrument of crime wlth the intent to employ it criminally. 18 Pa.C.S. § 907(a).
An instrument of crime is (([ ajnything used for criminal purposes and possessed by the actor
under circumstances not manifestly appropriate for lawful uses it may have." 18 Pa.C.S. §
907(d)(2); see also Commonwealth v, Robertson, 874 A.2d 1200, 1208-09 (Pa. Super. 2005).
This evidence was more than sufficient to establish the Defendant carried a firearm in
public without a license. Thornton told police that he saw the Defendant with a gun fire at
Hairston. 1/25/2016 at 117-18. The security officer at the Einstein Hospital testified that a
vehicle-matching the description of the Defendant's vehicle-stopped and lowered its window
in the same area where the gun used In the shooting was found. N.T. 1/26/2016 at 60-68. Both
copper fragments and the projectile recovered from Beechwood were fired from the subject
revolver. Id. at 182, 265-69. The certificate of non-licensnre submitted by the Commonwealth
12
conclusively established that the Defendant was not eligible to carry a firearm at the time of the
shooting. N.T. 1/27/2016 at 251-52. As the above discussion for first-degree murder indicated,
there was also more than sufficient evidence to establish that the Defendant's possessed a
criminal instrument with the intent to employ it criminally. Thus, these two claims are devoid of
merit.
Finally, the Defendant alleges that the verdicts for all convictions were against the weight
of the evidence. Because the Defendant, again, makes a bald assertion, this Court finds his
1925(b) Statement deficient. A Rule 1925(b) statement that is not specific enough for the trial
court to identify and address the issues an appellant wishes to raise may also result in waiver.
Reeves, 907 A.2d at 1; see also Commonwealth v, Seibert, 799 A.2<1 54, 62 (Pa. Super. 2002)
(finding that the weight of evidence claim was waived where the Rule 1925(b) statement only
asserted that the jury verdict "was against the weight of the credible evidence as to all of the
charges"), For the benefit of any future proceedings, however, this Com! will address the weight
of the evidence claims.
Weight of the evidence and sufficiency of the evidence are discrete inquiries, An
argument that the verdict is contrary to the weight of the evidence concedes that there is
sufficient evidence to sustain the verdict, but contends that the verdict is against the weight of the
evidence. Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002). An allegation that the
verdict is against the weight of the evidence is addressed to the sound discretion of the trial court,
Commonwealth v, Dupre, 866 A.2d l 089, 1101 (Pa. Super. 2005) (citing Commonwealth v.
Sullivan, 820 A.2d 795, 805-06 (Pa. Super. 2003)).
For a weight of the evidence claim to succeed, the test is whether the verdict is so
contrary to the evidence as to shock one's sense of justice. Commonwealth v. Diggs, 949 A.2d
13873, 879-80 (Pa. 2008). To determine whether this standard is met, appellate review is "limited
to whether the trial judge's discretion was properly exercised, and relief will 011ly be granted
where thefacts and inferences of record disclose a palpable abuse of discretion." Id. Hence, this
Court's denial of a motion for a new trial based on a weight of the evidence claim "is the least
assailable of its rulings." Id. at 8 80.
· As the fact-finder is free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses, for a defendant to prevail on a challenge to the weight, the evidence
must be "so tenuous, vague and uncertain that the verdict shocks the conscience of the court."
Sullivan, 820 A.2d at 806. This is a lofty standard as generally this threshold is only met when
"the figure of Justice totters on l ior pedestal," or when "the jury's verdict, at the time of its
rendition, causes the trial judge to lose his (or her] breath, temporarily, and causes him [or her] to
almost fall from the bench; [onlyf then it is truly shocking to the judicial conscience."
Commonwealth v. Davidson, 860 A.2d 575, 582 (Pa. Super. 2004) (quoting N11del111an v.
Gilbride, 647 A.2d 233, 237 (Pa. 1994)).
The Defendant's weight of the evidence claims for first-degree murder, attempted
murder, and aggravated assault are without merit as the verdicts were consistent with the
evidence and a far cry from shocking one's sense of justice. The Commonwealth presented a
considerable amount of testimonial, physical, and scientific evidence that the Defendant, with the
specific intent, fired at Hairston and struck and killed Fields. The jury's verdict indicates that
they chose to credit this evidence rather than the Defendant's theory of the case.
Having concluded that the weight of the evidence supports first-degree murder, attempted
murder, and aggravated assault, this Court also finds that the weight of the evidence supports the
verdict for PIC and Carrying a Firearm in Public Without a License. The evidence, as discussed
14
above, clearly shows that the Defendant intended to criminally employ a firearm when he shot at
Hairston mid struck and killed Fields. The record also reflects that the Defendant was not
eligible to carry a firearm at the time of the shooting. These claims ore, therefore, meritless.
For the foregoing masons, Defendant's claims are DENIED.
BY THE COURT,
~r~
15
Co111111011111ealth v, Jeffrey Palmer
CP"51"CR"0002288~2015
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing filing upon the personts), and in
the manner indicated below, which service satisfies the requirements of Pa. R. Crim, P. 114:
Philadelphia District Attorney's Office
Three South Perm Square
Philadelphia, PA 19107
Attn: Gaetano D' Andrea, Esq.
Type of Service: Hm1<1 Delivery
Nino Tinari, Esq.
1528 Walm1t Street
Suite 1212
Philadelphia, PA 19107
Type of Service:
Jeffrey Palmer
MJ6344
SCI Camp Hill
P.O. Box 200
CampHill,PA 17001
'I'ype of Service: Certified Mail
Dated: April 18, 2016