Com. v. Hunter, S.

J-A22023-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAMIR H. HUNTER :
:
Appellant : No. 84 MDA 2021
Appeal from the Judgment of Sentence Entered June 1, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004664-2016
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED JANUARY 12, 2022
Appellant, Shamir H. Hunter, appeals from the judgment of sentence
entered on June 1, 2017, as made final by the denial of Appellant’s
post-sentence motion on December 23, 2020. We affirm.
The trial court thoroughly summarized the underlying facts of this case:
At a jury trial [Appellant] was found guilty of murder in the
second degree and robbery,[1] as a result of an incident that
occurred on June 19, 2016. The following are the facts
established at a jury trial held on April 24-26, 2017.
At trial, Morgan Sheaffer[] was the first to testify. On
Saturday June 18, 2016, she attended the wedding of her
cousin Brian Esworthy and his now wife Becky Esworthy.
Stephen Esworthy [(“the victim”)], also attended the
wedding. The victim was the groom's brother and also was
the best man in the wedding. The wedding ended at
approximately 9:30 p.m. After the reception ended, a group
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1 18 Pa.C.S.A. §§ 2502(b) and 3701(a)(1)(i), respectively.
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of individuals comprised of Morgan Sheaffer and her fiancé,
Brian and Becky Esworthy, and [the victim] went downtown
to Tom Sawyer's bar on Second Street in Harrisburg. Brian
and Becky Esworthy left around midnight to go to their hotel
room. Between 12:30 and 1:00 a.m. is when the rest of the
group decided they would leave. The victim was going to be
staying at his brother's house on Reily Street that night. [The
victim] left approximately five [] to ten [] minutes before Ms.
Sheaffer and her fiancé left in an Uber.
Lamar Porter, an eyewitness, testified that he was arriving at
his house on 1201 Green Street at around 1:00 a.m. on June
19, 2016. Upon arriving home he decided to walk his dog
because he [had not] taken him out that day. Mr. Porter
brought his bike outside[] and then went to grab his dog.
When doing that, Mr. Porter saw the victim walking up Green
Street visibly intoxicated. A few minutes after that, Mr.
Porter also notice[d Appellant] walking up Green Street as
well. He noted in his testimony that[ Appellant] was wearing
his shirt around his neck and was walking with a stick[2] in his
hand. At that point, Mr. Porter [got] on his bike to walk his
dog and pedal[ed] down Cumberland Street towards Second
Street and crosse[d] in front of [Appellant]. After two [] to
three [] minutes, Mr. Porter [came] back from walking his
dog, he [began] to make a right turn on the comer of Verbeke
Street onto Green Street, but [saw Appellant] standing over
the victim, going through his pockets. Instead of turning
down Green Street, Mr. Porter [stopped] to help the victim
and [saw Appellant] run down Charles Street. When the
victim [did not] respond to Mr. [Porter’s] attempts to speak
to him, [Mr. Porter called] 911[. This occurred at
approximately] 1:29 a.m. Mr. Porter described the victim as
lying face down on the ground with pieces of the broken stick
lying around the victim. When police arrive[d] at the scene,
Mr. Porter provide[d the] police with a description of the
person he saw that night. Mr. Porter's description provided
that the individual was approximately 6 feet tall, a
dark-skinned complexion, thin, and wearing his shirt around
____________________________________________
2 In describing the object carried by Appellant and used to attack the victim
on the night of the incident, the trial court refers, alternately, to the terms
“stick” and “stake.” We have incorporated a verbatim quote of the trial court’s
recitation of the facts.
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his neck. Several days after the incident, the police indicated
to Mr. Porter that they had identified a potential suspect and
wanted him to look at a photo lineup. Mr. Porter identified
the person he had seen on the night of the murder by placing
a circle around [Appellant’s] picture.
When officers arrived at the scene, Emergency Services were
called to treat the victim[]. After paramedics stabilized the
victim, he was placed into an ambulance so he could be
transported to a hospital. As paramedics were working on
the victim, he passe[d] away in the back of the ambulance at
1:47 a.m. After the victim's passing, Officers Hill and
Fruhwirth secured the crime scene.
Corporal McNaughton, a forensic investigator, processed the
crime scene at approximately 2:30 a.m. A search of the area
surrounding the scene was conducted. Debris was found
clumped together by a storm drain which police believed to
be odd. Inside of the storm drain police found credit cards
with the name of Mahmoud Aeilbjl. Later, a daylight search
of the area was also conducted. A leather cardholder and a
metal clip that belonged with the leather money holder was
found, and later linked to [the victim]. At that point in time,
the victim's license or other identification cards were not
found on his person. The victim's license had later been
recovered by Jeffrey Bedmen, a person who lived in the
general area. . . .
Detective Kennedy also assisted in canvasing the area. In
his attempt to find evidence that would show the suspect's
flight path, he was able to obtain footage from Al's Bar and
Midtown Scholar [B]ookstore. In both surveillance videos,
they were able to see an individual with a description
matching the one provided by the eyewitness, Mr. Porter.
The video[] surveillance from Midtown Scholar Bookstore
showed an individual checking door handles on various
vehicles. The video show[ed] the same individual entering
Mahmoud Aeilbjl’s vehicle, which happens to be the same
individual whose credit cards were found in a storm drain
near the scene. The video surveillance from Al's Bar also
showed the same individual walking through a parking lot
with a shirt wrapped around his neck. Eventually, the video
footage obtained from Al's Bar was released to the media,
and an anonymous caller provided the name of Shamir
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Hunter, which [led] police to investigate [] Appellant. After
obtaining [Appellant’s] name, police searched [] his Facebook
account. Police [were] able to find a post on [Appellant’s]
page dated June 19, 2016 at 3:14 a.m. where he stat[ed]
that he had just ''caught a stain", which is commonly known
[] street slang for [a] robbery. As a result of the surveillance
video[] showing [Appellant] entering vehicles, a warrant
[was] issued for that crime and [Appellant] was arrested the
following day.
Following his arrest, [Appellant was] brought in for an
interview by Detective Ferrari and Kennedy on June 25, 2016.
At approximately 2:10 p.m., Detective Kennedy [read
Appellant his Miranda3 warnings], explaining to him that he
[could] stop questioning at any time. Even after [Miranda
warnings] were given[, Appellant] still indicated that he
wanted to speak with detectives. At the outset of the
interview, [Appellant] denied any involvement with the car
break-ins. After [Appellant’s] denial of his involvement[, the
d]etectives explain[ed] to him that they h[ad] video footage
of the car break-ins. Detective Kennedy also explained that
someone had been attacked and robbed in the same area,
and eventually passed away from his injuries. Not soon after
this, [Appellant] began to change his statement. Eventually,
he admit[ted] running into the victim and [declared] that
they began to yell at each other, and in response to the victim
trying to hit him, he picked up a stick and hit him with it.
[Appellant] change[d] his story multiple times before
detectives [were] able to obtain an accurate statement from
him. After detectives explain[ed] to [Appellant] that all they
wanted from him was to tell the truth, he beg[an] to explain
his involvement. [Appellant told] detectives that he was
breaking into cars on that evening trying to get money for
synthetic marijuana, and when he saw [the victim,] he saw
an opportunity to rob him. Eventually, [Appellant]
explain[ed] that he had seen [the victim], and he appeared
to be intoxicated. When he [saw the victim] leaned up
against a fence, he came up behind him and hit him with the
stake. The detectives then recorded the remainder of their
conversation with [Appellant].
____________________________________________
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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Dr. Wayne Ross, a forensic pathologist, conducted the
autopsy of [the victim]. Dr. Ross's observations about [the
victim] indicated that he had suffered an abrasion to the back
of his head that extended all along the right side of his head.
Additionally, there were abrasions to [the victim’s] face
where it appeared that he had fallen face first. [Dr. Ross]
noted that there were no defensive wounds to [the victim’s]
hands as a reflex to falling down. Dr. Ross concluded that
[the victim] had sustained an immediate neurologic injury
that completely impaired his brain and rendered him
unconscious.
As for the cause of these injuries to [the victim], Dr. Ross
concluded that the abrasion to the back of [the victim’s] head
was the result of the victim being struck with the end of a
stake, where the force was so great that the stick would have
[] broken as a result. He also concluded that it appeared to
be only one strike with an item weighing being five [] to ten
[] pounds. Dr. Ross then discussed the abrasions to [the
victim’s] face. He noted that those injuries were consistent
with a fall. Dr. Ross summarized that he believed that the
injury to the back of [the victim’s] head occurred before he
fell to the ground, which rendered him unconscious. As a
result of being rendered unconscious, [the victim] fell
forward. This sequence of events also explains the lack of
injuries to [the victim’s] hands because there was no reflex
of the victim trying to stop himself.
Sara Harner, the technician who tested various items
collected from the crime scene, testified next. She testified
that she had received eight [] different samples which
included the following: (1) a swab from the surface of a
wristwatch; (2) a cutting from the left front pocket of [the
victim’s] pants; (3) a cutting from the front right pocket of
[the victim’s] pants; (4) a cutting from the back right pocket
of [the victim’s] pants; (5) a cutting from the front right hip
area of [the victim’s] pants; (6) three swabs from a section
of one of the broken pieces from the wooden stake; (7)
another three swabs from a section of another broken piece
from the wooden stake; and (8) a swab from the exterior
surfaces of the wallet and money clip. Ms. Harner also
received two [] known reference samples from [the victim]
and [Appellant].
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The majority of the items tested, Ms. Harner was either
unable to collect a sufficient amount of DNA from the item or
was able to find sufficient DNA but, it was too complex of a
mixture and produced inconclusive results. However, a
portion of the wooden stake, which Ms. Harner identified as
item "Q6", did contain a partial DNA profile. Her testimony
indicated that seven [] of the [24] locations of the DNA
completely matched the known reference sample from
[Appellant]. Ms. Harner explained that at the remaining [17]
locations, there was simply not enough DNA to determine []
a complete match, but none of the other locations were
mismatched. Ms. Harner did include in her testimony the
[probability] of randomly selecting an unrelated individual to
that strand of DNA as being "1 in 32 billion from the
Caucasian population, 1 in 870 million from the African
American population, and 1 in 10 billion from the Hispanic
population".
At trial, [Appellant] testified. He indicated during his
testimony that he did not feel as though he was in a sound
state of mind during his interview with detectives because he
had used synthetic marijuana earlier that day. Additionally,
he admitted that he had used synthetic marijuana daily and
had been smoking it since 2012.
Trial Court Opinion, 5/28/19, at 1-7 (citations and some capitalization
omitted).
The jury found Appellant guilty of second-degree murder and robbery
and, on June 1, 2017, the trial court sentenced Appellant to serve a term of
life in prison. N.T. Sentencing, 6/1/17, at 13. Following the nunc pro tunc
restoration of Appellant’s post-sentence and appellate rights, the trial court
denied Appellant’s post-sentence motion on December 23, 2020 and Appellant
filed a timely notice of appeal. Appellant raises the following claims on appeal:
Did the [trial] court err in denying Appellant’s post-sentence
motion requesting an arrest of [judgment] and seeking a new
trial, where the verdicts of second degree homicide and
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robbery were so contrary to the weight of the evidence that
its shocks one’s sense of justice?
a. Specifically, did the jury give improper weight to the
eyewitness testimony from Lamar Porter as the lighting
conditions were poor, the perpetrator was a distance
away from the eyewitness, Porter was distracted with his
dog and bicycle, and Appellant was not known to the
eyewitness prior to that night?
b. Did the jury give improper weight to Appellant’s
testimony that he was under the influence of synthetic
marijuana at the time of his interview with the police, he
felt threatened, and the police coerced him into a
confession by making him promises during the
interrogation?
c. Was the DNA “partial match” insufficient to establish
the identity to [Appellant] as the perpetrator?
Appellant’s Brief at 4 (some capitalization omitted).
Appellant claims that the jury’s verdict was against the weight of the
evidence. As our Supreme Court has explained:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the
discretion of the trial court. A new trial should not be granted
because of a mere conflict in the testimony or because the
judge on the same facts would have arrived at a different
conclusion. Rather, the role of the trial judge is to determine
that notwithstanding all the facts, certain facts are so clearly
of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice. It has often been
stated that a new trial should be awarded when the
[factfinder's] verdict is so contrary to the evidence as to
shock one's sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.
An appellate court's standard of review when presented with
a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
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Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear
and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial court's
determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court's conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
This does not mean that the exercise of discretion by the trial
court in granting or denying a motion for a new trial based
on a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court's discretion, [the
Pennsylvania Supreme Court has] explained:
The term discretion imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for
the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason,
as opposed to prejudice, personal motivations, caprice or
arbitrary actions. Discretion is abused where the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where
the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill-will.
Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1055 (2013) (citations,
quotations, and emphasis omitted).
Appellant claims that the jury’s verdict is against the weight of the
evidence because: the jury gave improper weight to Lamar Porter’s
eyewitness testimony; the DNA results were only a “partial match;” and,
Appellant was under the influence of synthetic marijuana when he was
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interviewed by the police and the police coerced him into confessing.
Appellant’s Brief at 17-21. These claims fail. As the trial court explained, it
denied Appellant’s post-sentence, weight of the evidence claim for the
following reasons:
Appellant [] contends that the lighting conditions at the time
of the incident were poor, which created unreliable
eyewitness testimony. We disagree. . . . Eyewitness
testimony of Lamar Porter was corroborated with video
surveillance footage, DNA results, and an identification of []
Appellant during a photo lineup. First, it is important to note
that the eyewitness described the individual he saw that
evening as being approximately six [] feet tall, thin, with a
dark complexion, and was wearing a t-shirt hung around his
neck. Video surveillance from the Midtown Scholar Bookstore
displayed an individual who met the description provided by
the eyewitness. That video showed an individual wearing a
white t-shirt and jeans checking the door handles on vehicles.
Later in the surveillance footage, that same individual is seen
walking back from Verbeke Street with a shirt wrapped
around his neck[,] much like the description provided by
Lamar Porter. Another surveillance video from Al's Bar was
also obtained, which also showed an individual walking
through the parking lot with his shirt[] wrapped around his
neck. Again, this is the exact description provided by the
eyewitness, Lamar Porter.
Next, the Commonwealth presented the testimony of Sara
Harner, who tested various items collected from the crime
scene for potential DNA evidence. She testified that she was
able to collect a partial DNA[] profile from item Q6, which was
a portion of the wooden stake used to commit the murder.
Her testimony indicated that seven [] out of [24] of the DNA
locations along the strand completely matched a DNA profile
from the known reference sample collected from [Appellant].
More specifically, her testimony indicated that the probability
of randomly selecting an unrelated person with the same DNA
profile is "1 in 32 billion from the Caucasian population, 1 in
870 million from the African American population, and 1 in
10 billion from the Hispanic population." In other words, the
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probability of finding another individual that would match
that DNA strand is fairly low.
Finally, [Porter] identified [Appellant] in a photo lineup. As
Officer Galkowski testified, the eyewitness was relaxed and
comfortable. He indicated [] Appellant[,] signed and dated
the lineup of photos[,] while placing a circle around []
Appellant's photo. . . .
Regardless of [] Appellant's argument that the lighting
conditions were unfavorable for making a positive
identification of [] Appellant as the perpetrator of the crimes,
we find that the other evidence presented was sufficient to
connect [] Appellant to the murder. Additionally, "[t]he
general rule is that the credibility of all witnesses is in the
exclusive province of the jury. The jury is to assess the
weight to be accorded each witness' testimony and may
believe all, part, or none of what they hear."
[Commonwealth v. Bamosky, 400 A.2d 168, 171 (Pa.
Super. 1979)]. As such, it is up to the jury to determine what
weight they will place on the testimony presented and
whether they found it to be reliable or unreliable. For the
aforementioned reasons, we believe that the eyewitness'
testimony was reliable. . . .
In regard to [] Appellant's second argument where it was
argued that the DNA results were inconclusive, we must
disagree. At [] Appellant's trial[,] Sara Harner testified. She
was the technician who tested various items collected from
the crime scene. Most importantly, she testified that a portion
of the wooden stake, the murder weapon, contained a partial
DNA profile. Her testimony indicated that seven [] out of
[24] of the DNA locations along the strand completely
matched a DNA profile from the known reference sample
collected from [Appellant]. More specifically, her testimony
indicated that the probability of randomly selecting an
unrelated person with the same DNA profile is "1 in 32 billion
from the Caucasian population, 1 in 870 million from the
African American population, and 1 in 10 billion from the
Hispanic population." In other words, the probability of
finding another individual that would match that DNA strand
is fairly low. Although she was unable to collect a full strand
of DNA, we still find that her testimony regarding the wooden
stake was sufficient to prove [Appellant] was the perpetrator
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of the crime. The extremely low probability of finding another
individual with the same seven [] locations of DNA in a strand
was highly convincing to the [trial] court.
Finally, we address [] Appellant's argument that his
confession was coerced because he was under the influence
of synthetic marijuana. . . . First, detectives who interviewed
[Appellant] indicated that he was [read his Miranda
warnings] around 2:10 p.m. As detectives explained during
their testimony, when they [read Miranda warnings] to
anyone, their goal specifically is to make sure that the
individual whom they are interviewing understands the
questions they ask. As part of their Miranda warnings,
detectives explained to [Appellant] that they would stop
questioning him at any time, and if at any point he wanted to
stop, he [could stop]. Even after Miranda warnings were
given, [Appellant] indicated to the detectives that he still
wished to speak to them. Further, both detectives indicated
to [the trial] court that there was no indication that
[Appellant] was under the influence of anything at the time
of the interview. Additionally, they did not get any indication
that [Appellant] had any type of problem that would impact
his ability to mentally participate in the interview. In addition,
Detective Ferrari indicated that at no point during the
interview was there any yelling; it was simply a conversation
they were all having with [one] other. [Appellant] suggested
during his testimony that detectives repeatedly indicated to
him that they would take care of him, which he was unable
to explain. Detectives made it clear to [the trial] court during
their testimony that no statements had been made to
[Appellant about] “protecting him” or anything else that could
have been interpreted in such a manner. Lastly, we find it
important to note that [] Appellant had no issue with
admitting to the robbery via Facebook, where his post
indicated that he had just "caught a stain". This is just one
more reason why it is difficult for [the trial] court to believe
that his confession was coerced. [Appellant's] nonchalance in
admitting to a crime via Facebook makes it more difficult to
believe that he would not have admitted to other crimes in
front of two detectives.
[Appellant], in his own testimony, admitted to smoking
synthetic marijuana on the morning of the [] interview.
However, we find it important to note that [Appellant]
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admitted to using synthetic marijuana daily since 2012. It is
important to note that a daily user of synthetic marijuana
would be expected to build up some tolerance to the effects
of the drug, especially when an individual had been using said
drug since 2012. Additionally, [] Appellant stated that he had
used the synthetic marijuana in the morning, but he was not
interviewed until the afternoon, which would provide time for
the effects of the drug to wear off before beginning the
interview.
Trial Court Opinion, 5/28/19, at 8-12 (citations and some capitalization
omitted).
We agree with the learned trial court’s analysis and conclude that the
trial court did not abuse its discretion when it denied Appellant’s weight of the
evidence claims.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/12/2022
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