Com. v. Johnson, M. (memorandum)

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J-S29029-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v. MARCUS R. JOHNSON Appellant No. 2432 EDA 2016 Appeal from the Judgment of Sentence dated June 27, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014428-2014 BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.* MEMORANDUM BY SOLANO, J.: FILED JULY 13, 2017 Appellant, Marcus R. Johnson, appeals from the judgment of sentence imposed after a jury convicted him of first-degree murder and possessing an instrument of crime (PIC).1 We affirm. The trial court recounted the evidence presented at trial as follows: During the summer of 2014, [Appellant] lived at 987 South 5 Street in the City and County of Philadelphia with his longtime paramour, the decedent Nekeisha Eugene, and their nine-year-old son, Marcus Johnson, Jr. Although [Appellant] and the decedent were romantically involved for the preceding seventeen years, [Appellant] had numerous affairs between 2011 and August 2014. th In 2011, after the decedent discovered that [Appellant] had an affair during a trip to Las Vegas, she moved out of the house for two weeks. Subsequently, [Appellant], a manager of a ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. §§ 2502(a) and 907(a). J-S29029-17 Walmart, cheated on the decedent with several fellow Walmart employees. In mid-August 2014, the decedent discovered some of these affairs and confronted [Appellant], resulting in numerous arguments. On September 4, 2014, [Appellant] celebrated his birthday and, despite his promises to remain faithful, he had sex with another woman. Two days later[,] on September 6, 2014, the decedent discovered [Appellant]’s infidelity through text messages sent to his phone and confronted him. During the ensuing argument, the decedent broke [Appellant]’s cell phone, scratched him with a steak knife, and threw a whiskey bottle at him. After the argument, while the decedent was alone in her bedroom, she fired [Appellant]’s .25 caliber Beretta pistol into the bedroom wall. On September 8, 2014, [Appellant] inserted his own SIM card into the decedent’s phone and used it to exchange text messages with several women throughout the day. He later travelled to the Firing Lane gun store in South Philadelphia and attempted to sell his Beretta. After the store owner told [Appellant] that he did not want to purchase the firearm, [Appellant] returned home and placed the Beretta on a computer desk in an upstairs room. On the evening of September 8, 2014, [Appellant] and his brother, Robert Jackson Jr., were watching Monday Night Football in Jackson’s home at 411 Washington Avenue, located across a small parking lot from [Appellant]’s home. At approximately 9:15 p.m., Jackson left his home to drive his wife home from work. At 9:17 p.m., [Appellant] used Jackson’s phone to call the decedent, who quickly hung up on him. Immediately after the phone call, [Appellant] walked home to 987 South 5th Street and confronted the decedent. Upon [Appellant]’s arrival, the decedent revealed that she had seen the text messages [Appellant] sent through her phone, and admonished him because he “keep[s] texting those fucking girls.” Despite it being past his bedtime on a school night, [Appellant] immediately ran upstairs and ordered Johnson Jr. to get out of bed and run to Jackson’s house. After Johnson Jr. left, the decedent showed [Appellant] a photo she had discovered of him holding an infant he fathered with another -2- J-S29029-17 woman. The decedent did not know the baby existed until [Appellant] inadvertently downloaded it onto her phone. Confronted with this evidence, [Appellant] again ran upstairs, retrieved his .25 caliber Beretta pistol, and returned downstairs to the living room, gun in hand. [Appellant] then slammed the pistol on the TV stand and warned the decedent not to “talk to me like that now,” acknowledging the pistol. As the argument continued, [Appellant] grabbed the pistol, pointed it at the decedent, and fired six times. As the decedent lay bleeding on the living room floor, instead of calling for medical help, [Appellant] called his brother over to 987 South 5th Street. Jackson arrived at [Appellant’s] home to discover the decedent lying face up with her eyes twitching, and immediately called 911. Moments later, Police Officers Nicholas Polini, Confesor Nieves, and Martin Berkery arrived at the scene, observed the severity of the decedent’s injuries, and immediately transported the decedent in a police van to Jefferson Hospital, where she expired. As the officers investigated his home, [Appellant] fled and walked to a nearby 7-Eleven convenience store and purchased two containers of NyQuil. [Appellant] ingested the NyQuil in an alleged suicide attempt, but returned to Jackson’s home the morning of September 9, 2014, where police arrested him. After his arrest, [Appellant] gave a statement to police wherein he indicated that the decedent held the gun during the argument, that he snatched it from her, and fired between four and five times. Officer Polini recovered [Appellant]’s Beretta in the living room and discovered six live rounds in the magazine and one in the chamber. Officer Terry Tull of the Crime Scene Unit discovered six Fired Cartridge Casings (“FCCs”), four fired projectiles, and two unfired live rounds in the living room and forwarded them to the ballistics unit. Tull further took three DNA swabs from the handgun and submitted them to the criminalistics laboratory. Officer Robert Stott, a ballistician with the Philadelphia Firearms Unit and an expert in ballistics identification, inspected the recovered Beretta, the FCCs, and the four projectiles, observed a six right twist identification marker on each -3- J-S29029-17 projectile, and determined that each projectile was fired from [Appellant]’s Beretta. Officer Stott further concluded that each of the FCCs were fired from [Appellant]’s firearm. At trial, Officer Stott testified that the Beretta was semi-automatic and in working condition, requiring the shooter to pull the trigger once for each round expended. A shooter would have to apply fiveand-one-half pounds of force to pull the trigger of the Beretta, and the recovered firearm had a maximum capacity of nine rounds, indicating that the shooter had reloaded the weapon in the time between the incident and the weapon’s recovery. According to Philadelphia Deputy Medical Examiner Dr. Albert Chu, an expert in forensic pathology, the decedent suffered six distinct gunshot wounds, including two penetrating, fatal wounds to the back of her head, two non-fatal wounds to the left forearm, a non-fatal wound to the right forearm, and a graze wound to the left shoulder. One penetrating, fatal wound to the back of the decedent’s head travelled through the victim’s skull and brain back to front, left to right, and slightly upward, coming to rest near the decedent’s right ear. The decedent’s other head wound entered the neck near the base of the skull, fractured the first cervical vertebra, and was recovered on the right side of the decedent’s back, near the lower neck. Dr. Chu characterized the second wound as immediately fatal, as the projectile struck the part of the spinal cord that controlled the decedent’s breathing and heartbeat. Each of the decedent’s wounds was consistent with shots fired while the decedent’s back faced the shooter. Dr. Chu concluded, to a reasonable degree of medical certainty, that the manner of death was homicide caused by multiple gunshot wounds. On September 10, 2014, Jackson recovered [Appellant]’s cell phone from 987 South 5th Street and surrendered it to the police. A Regional Computer Forensic Lab report of the phone revealed several threatening text messages that [Appellant] sent to the decedent in the days leading up to the homicide. Between 11:38 and 11:59 GMT on September 1, 2014, [Appellant] texted the decedent that “you pissed me off so much just now I wanted to choke you,” “no, I want to leave because I don’t want to be in jail for murder,” and “I see how people get angry and stressed enough to kill another.” [Appellant] testified on his own behalf at trial, and claimed that on Saturday, September 6, 2014, the decedent discovered -4- J-S29029-17 text messages between [Appellant] and other women on his phone and threatened him with a steak knife. During the argument, the decedent destroyed [Appellant]’s phone, scratched his neck, threw a whiskey bottle at him, and later fired the Beretta into the bedroom wall while he was in another room. In response, [Appellant] attempted to sell the firearm to Ashley Jefferson, Darius Coit, and the Firing Line gun store in the city, but no one was interested in purchasing it. [Appellant] admitted on the stand that he shot the decedent multiple times after the decedent showed him the photo of him holding a child that he conceived with another woman. [Appellant] testified that after he took the phone from the decedent and attempted to delete the photo, she grabbed the gun and pointed it at him. After a “mild struggle,” [Appellant] testified, he wrestled the gun away from the decedent, whereupon the gun discharged, striking and killing her. Dr. Jonathan Arden, former Chief Medical Examiner of Washington, D.C. and an expert in forensic pathology, testified that the decedent’s wounds were consistent with having been caused by five projectiles in a “rapid fire, rapid motion” situation, where the decedent faced [Appellant] when he started shooting and turned around as the bullets struck her. But Dr. Arden, during cross-examination, agreed that the wounds were consistent with the scenario presented by the Commonwealth. Trial Court Opinion, 9/19/16, at 1-6 (citations to notes of testimony and footnote omitted). The jury convicted Appellant of first-degree murder and PIC on June 27, 2016. That same day, the trial court sentenced Appellant to mandatory life imprisonment for first-degree murder, with no further penalty for PIC. On June 6, 2016, Appellant filed a post-sentence motion in which he alleged that his conviction was against the weight of the evidence. The trial court -5- J-S29029-17 denied the motion on July 18, 2016. Appellant filed a timely appeal on July 25, 2016. Appellant presents two issues for our review: 1. Did the trial court err in denying Appellant’s post-sentence motion because Appellant’s conviction is against the weight of the evidence in that the circumstantial evidence was not enough to convict Appellant using the beyond a reasonable doubt standard? 2. Was the evidence insufficient as a matter of law to convict for Murder in the First Degree when there was no specific intent to kill or malice shown? Appellant’s Brief at 4. The Pennsylvania Supreme Court has delineated the distinctions between Appellant’s two claims, stating: A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation 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. A trial judge -6- J-S29029-17 must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. 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. Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000) (citations, footnote, and quotation marks omitted). In order to sustain a verdict of first-degree murder, the Commonwealth must prove that a human being was unlawfully killed, that the defendant did the killing; that the killing was willful, deliberate, and premeditated; and that the defendant acted with the specific intent to kill. Commonwealth v. Fiebiger, 810 A.2d 1233, 1235 (Pa. 2002). Instantly, Appellant does not deny that he killed the victim; his contention is that the killing was not first-degree murder. In challenging the weight of the evidence, Appellant argues that his convictions “shock one’s sense of justice” because his “struggle theory of the case was not disproven.” Appellant’s Brief at 7-10. Appellant also asserts that the verdict was against the weight of the evidence given his introduction of good character evidence. Appellant states that “[i]t is inconceivable that someone of Appellant’s good character could engage in the kind of killing alleged by the Commonwealth at trial.” Id. at 11. With regard to the sufficiency of the evidence, Appellant argues there “was insufficient evidence to sustain Appellant’s conviction for first-degree -7- J-S29029-17 murder because neither [the] specific intent to kill nor malice were proven beyond a reasonable doubt.” Id. at 14. Following our review of the certified record and the parties’ briefs, we conclude that the Honorable Barbara A. McDermott, sitting as the trial court, has authored an opinion which correctly addresses and disposes of Appellant’s weight and sufficiency issues. See, e.g., Trial Court Opinion, 9/19/16, at 10-13 (verdict not contrary to the weight of the evidence based on Appellant’s “characterization of events leading up to the shooting” and evidence of good character, where the weight issue was one of credibility that the jury resolved against Appellant) and 8 (evidence was sufficient because “the evidence presented by [Appellant] at trial does not negate the ample evidence of malice and specific intent to kill presented by the Commonwealth”). Based on the foregoing, we adopt the trial court’s September 19, 2016 opinion as our own, and hold that the trial court committed neither an error of law nor an abuse of discretion relative to Appellant’s evidentiary issues and first-degree murder conviction. The parties shall attach the trial court’s opinion to any future filings relating to the merits of this appeal. Judgment of sentence affirmed. -8- J-S29029-17 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/13/2017 -9- 0044_Opinion Circulated 06/27/2017 11:54 AM

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