Com. v. Walker, T. (memorandum)

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J-S06011-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. TROY WALKER Appellant No. 630 EDA 2016 Appeal from the Judgment of Sentence October 19, 2015 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000394-2014 BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.* MEMORANDUM BY MOULTON, J.: FILED JULY 14, 2017 Troy Walker appeals from the October 19, 2015 judgment of sentence entered in the Montgomery County Court of Common Pleas following his jury trial convictions for attempted first-degree murder, aggravated assault, robbery of motor vehicle, recklessly endangering another person (“REAP”), unsworn falsification to authorities, and persons not to possess firearms.1 We affirm. The trial court set forth the relevant factual history as follows: On Sunday, October 20, 2013, at approximately 2:46 A.M., police responded to reports of a shooting at the Riverside Apartments in Norristown, Pennsylvania. As an ____________________________________________ * 1 Former Justice specially assigned to the Superior Court. 18 Pa.C.S. §§ 901(a); 2502(a), 2702(a)(1), 3702(a), 2705, 4904(a)(1), 6105(a)(1), respectively. J-S06011-17 officer was arriving on the scene, his unmarked patrol car was struck by a blue Volkswagen Passat, which proceeded to exit the parking lot. The complainant, John Steven Marszuk, was found on the ground towards the rear of the parking lot, where he had been shot just under the left eye. Marszuk, who does not remember the incident, was flown to a hospital with a bullet lodged in his brain. His vehicle, the blue Volkswagen Passat which had been driven off the scene, was found abandoned in an adjacent lot, and was processed for fingerprints. One of the fingerprints which w[as] submitted to a database matched those of Defendant, Troy Walker. On Wednesday. October 30, 2013, [Walker] accompanied two officers to a stationhouse, where he made a statement in which he denied his involvement with the crime or any personal knowledge of the complaining witness. As a result of the statement, [Walker] was charged with False Swearing. A warrant was issued for his arrest on November 5, 2013. [Walker] was arrested on December 18, 2013, and thereafter made a statement confessing to his involvement in the crime. [Walker] claimed that he had acted in selfdefense when the complaining witness had become sexually aggressive after offering to give Defendant a ride home. [Walker] stated that after shooting the complainant, he had driven away in the complainant’s blue Volkswagen Passat, accidentally struck the arriving police vehicle, abandoned the complainant’s car, threw his firearm into the Schuylkill River, and fled on foot. [Walker] was thereafter charged with attempted first degree murder, aggravated assault, robbery of a motor vehicle, recklessly endangering another person, unsworn falsification to authorities, and possession of a firearm by a person not to possess. [Walker] had a preliminary hearing on January 14, 2014, after which all charges were held for court.7 Following a trial on March 17. 2015, through March 19, 2015, [Walker] was convicted by a jury of all charges. 7 [Walker] was also originally charged with aggravated assault on a police officer, 18 Pa.C.S.A. § 2702(a)(2), and possession of a firearm with criminal intent, 18 Pa.C.S.A. § -2- J-S06011-17 907(b), for which an order of nolle prosequi was later entered. On September 2, 2015, [Walker] filed a Motion for Extraordinary [R]elief on the basis of a tainted juror, which was denied on October 2, 2015, after a hearing. [Walker] was sentenced on October 19, 2015, to fifteen and a half to thirty-one years of incarceration in a state correctional institution (with a concurrent sentence of six to twelve years’ incarceration), three years of consecutive probation (with two other concurrent sentences of two years’ probation), and to pay restitution. On October 29, 2015, [Walker] filed a post-sentence motion, raising in part the denial of [Walker’s] Motion for Extraordinary Relief and requesting leave to supplement the record with the questionnaire of the challenged juror. On November 3, 2015, this Court issued an order granting leave to supplement the record with the juror questionnaire within twenty days and stating that “In default thereof, same motion is DENIED.” [Walker] did not supplement the record with the juror questionnaire by November 23, 2015. [Walker’s] counsel failed to file a notice of appeal within thirty days of the automatic denial of the post-sentence motion (December 23, 2015). On February 5, 2016, [Walker’s] counsel filed a Motion for Nunc Pro Tunc Appeal, claiming that this Court’s order of November 3, 2015, was unclear as to whether the Court intended to deny in full [Walker’s] post-sentence motion on November 23, 2015, and that [Walker’s] counsel had been therefore unaware that the time period in which to file an appeal had expired on December 23, 2015. This Court was persuaded by counsel’s argument, and on February 11, 2016, granted [Walker] leave to appeal nunc pro tunc.8 [Walker] filed a notice of appeal on February 26, 2016. 8 Documents sent directly from [Walker] and filed with the Clerk of Courts on January 27, 2016, (sent from the prison on December 17, 2015) indicated [Walker’s] timely desire to appeal his judgment of sentence. [Walker] also submitted a pro se request to appoint new -3- J-S06011-17 counsel on December 2, 2015, which was denied on January 7, 2016. Opinion, 5/3/16, at 1-3 (some footnotes omitted) (“1925(a) Op.”). On appeal, Walker raises the following issues: 1. The trial court erred in failing to suppress [Walker’s] statements taken on November 2, 2013, and December 18, 2013. 2. The trial court erred in allowing detective [Albert] Dinnell to certify to the jury that his opinion had the stamp of approval of the scientific community. 3. The trial court erred in denying the defense motion for extraordinary relief where a juror failed to reveal prior to or during trial that he worked at a juvenile delinquency institution and that he had prior contact with [Walker] at that institution. 4. The trial court erred in overruling the defense objection to the statement by the prosecutor in her closing that, “if you believe the defense you have been lied to . . . .” 5. The trial court erred in allowing a police officer to testify specifically that he could determine that [Walker’s] cell phone was in the area of the crime by checking nearby cell phone towers. 6. The evidence was insufficient as a matter of law to find [Walker] guilty of attempted first degree murder and the companion charges of robbery of a motor vehicle, aggravated assault and reckless endangerment. Walker’s Br. at 13. I. Motion to Suppress Walker first challenges the trial court’s denial of his motion to suppress the statements he made on November 2, 2013 and on December 18, 2013. He maintains the trial court should have suppressed his November 2, 2013 statements because the questioning constituted a custodial interrogation and -4- J-S06011-17 he was not provided Miranda2 warnings. He maintains the trial court should have suppressed his December 18, 2013 statements because the police lacked probable cause to arrest him and, therefore, the statements were the fruit of an illegal arrest. When reviewing a denial of a suppression motion, we must determine whether the record supports the trial court’s factual findings and whether the legal conclusions drawn from those facts are correct. Brown, 64 A.3d 1101, 1104 (Pa.Super. 2013). Commonwealth v. We may only consider evidence presented at the suppression hearing. In re L.J., 79 A.3d 1073, 1085-87 (Pa. 2013). In addition, because the Commonwealth prevailed in the suppression court, we consider only the Commonwealth’s evidence and so much of the defense evidence “as remains uncontradicted when read in the context of the record as a whole.” Brown, 64 A.3d at 1104 (quoting Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super. 2010)). We may reverse only if the legal conclusions drawn from the facts are in error. Id. A. November 2, 2013 Statements Walker contends that he was subject to a custodial detention on November 2, 2013 and that the statements made to police on that day are inadmissible because the police did not provide Miranda warnings. He maintains that on November 2, 2013, just one day after his eighteenth ____________________________________________ 2 Miranda v. Arizona, 384 U.S. 436 (1966). -5- J-S06011-17 birthday, the police requested that he accompany them to the police station under the false premise that they wanted to speak with him regarding his juvenile probation. He maintains that he was a special education student and that the conversation occurred without his parents’ presence or knowledge. Thus, he claims that the statements were coerced and involuntary and the trial court erred in denying his motion to suppress the statements. The trial court concluded that under the totality of the circumstances, Walker was not in custody on November 2, 2013 and, therefore, it denied the motion to suppress statements made on that date. 1925(a) Op. at 1015. It noted that Walker’s age is only one factor used to determine whether a custodial detention occurred. Id. at 10-11. It further concluded that, although the “probation officers used a certain level of deception to obtain [Walker’s] presence in the station, this does not contradict that [Walker] was not in custody at the time he gave the statement, or that he gave it voluntarily.” Id. at 14. The trial court noted that the officers did not make any promises or threats to Walker and that when he made the statement Walker “was fully aware of both the real reason he was being questioned and of his right to leave.” Id. at 15. After a review of the briefs, the record, the relevant case law, and the well-reasoned opinion of the Honorable Garrett D. Page, we conclude the trial court’s factual findings are supported -6- J-S06011-17 by the record and its legal conclusions are not in error. We agree with and adopt the trial court’s reasoning. See 1925(a) Op. at 10-15.3 B. Affidavit of Probable Cause and the December 18, 2013 Statements Walker next contends that the warrant for his arrest for unsworn falsification to authorities was not based upon probable cause and, therefore, the arrest was illegal and any statements made after the arrest are inadmissible. He contends that the affidavit of probable cause presented to the judge in support of the arrest warrant contained a material misrepresentation because it stated that Walker told the police officers that he never touched the car, where, at the interview, Walker told the police officers he did not touch the car on October 20, 2013. The trial court concluded that Walker’s arrest was supported by probable cause. 1925(a) Op. at 15. The trial court found that the statement in the affidavit “d[id] not rise to the level of false statements made with reckless disregard for the truth.” Id. at 18. The court found that the affiant’s interpretation of Walker’s November 2, 2013 statement “was neither patently false nor did it amount to a gross deviation from reasonable ____________________________________________ 3 The trial court stated the facts herein “align closer with those of [Commonwealth v.] Cooley[, 118 A.3d 370 (Pa. 2015)] than [Minnesota v.] Murphy[, 465 U.S. 420 (1984)].” 1925(a) Op. at 13. It is clear from the cases and from the parenthetical citations provided by the trial court, id. at 13-14, that the trial court actually found the facts “align closer with those of [Murphy] than [Cooley],” id. at 13. -7- J-S06011-17 conduct, particularly at the probable cause level.” Id. at 19. It further concluded that although “the existence of two interpretations to the question arguably meant that there was insufficient evidence at the time for a conviction of unsworn falsification at the ‘beyond a reasonable doubt’ standard, the totality of the circumstances, including the common sense interpretation of the question (and [Walker’s] negative answer), provides ample probable cause for arrest on that charge.” Id. at 20-21. After a review of the briefs, the record, the relevant case law, and the well-reasoned opinion of Judge Page, we conclude that the trial court’s factual findings are supported by the record and its legal conclusions are not in error. We agree with and adopt the trial court’s reasoning. See 1925(a) Op. at 15-21. II. Admissibility of Fingerprint Expert Testimony and Cell Phone Expert Testimony In Walker’s second and fifth claims, he challenges the admission of testimony from two experts, a fingerprint expert and a cell phone expert. We review a challenge to the admission of evidence for an abuse of discretion. Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super. 2014). A. Fingerprint Expert Walker maintains the trial court erred in overruling his objection to the testimony of Detective Albert Dinnell. Walker objected to Detective Dinnell’s testimony that it was his opinion, to a reasonable degree of scientific -8- J-S06011-17 certainty, that the fingerprint located on the victim’s car matched Walker’s. Walker maintains that fingerprint analysis is subjective and not based on science and that, although a fingerprint expert can give an opinion, the expert cannot claim the opinion is based on science. The trial court concluded Walker did not object to the underlying scientific methodology used by requesting a Frye hearing and presented no ground “for this Court to believe that a Frye hearing was warranted.” 1925(a) Op. at 34. The trial court also noted that Walker successfully crossexamined Detective Dinnell and that Detective Dinnell was qualified as an expert. Id. at 36-37. After a review of the briefs, the record, the relevant case law, and the well-reasoned opinion of Judge Page, we conclude that the trial court did not abuse its discretion when it overruled Walker’s objection. We agree with and adopt the trial court’s reasoning. See 1925(a) Op. at 3437. B. Cell Phone Expert Walker next maintains the trial court erred when it allowed an expert to testify to a reasonable degree of scientific certainty that Walker’s cell phone was in the area. Walker maintains that a cell phone expert can determine what tower picked up the cell phone signal, but not that the phone was in the vicinity. The trial court concluded Walker’s issue lacked merit where Walker vigorously cross-examined the expert, the expert was qualified, the expert’s conclusions were “simplistic,” and Walker did not request a Frye hearing. -9- J-S06011-17 1925(a) Op. at 34. After a review of the briefs, the record, the relevant case law, and the well-reasoned opinion of Judge Page, we conclude that the trial court did not abuse its discretion. We agree with and adopt the trial court’s reasoning. See 1925(a) Op. at 30-34. III. Juror Misconduct Walker maintains the trial court erred in not granting a new trial where a juror failed to disclose on the juror questionnaire that he worked as a counselor at a juvenile institution.4 We apply the following standard of review to the denial of a new trial due to alleged juror misconduct: The refusal of a new trial on the grounds of alleged misconduct of a juror is largely within the discretion of the trial judge. When the facts surrounding the possible misconduct are in dispute, the trial judge should examine the various witnesses on the question, and his findings of fact will be sustained unless there is an abuse of discretion. Commonwealth v. Pope, 14 A.3d 139, 145 (Pa.Super. 2011) (quoting Commonwealth v. Russell, 665 A.2d 1239, 1243 (Pa.Super. 1995)). The trial court found that although the average juror would have listed all places of current employment in response to the juror questionnaire, the ____________________________________________ 4 In response to a question regarding employment, a juror responded that he worked as a corrections officer at State Correctional Institution Graterford, but did not state that he also was employed at New Life Residential Program for Youth, a drug and rehabilitation residential facility for juveniles. 1925(a) Op. at 49. Walker previously was a resident at New Life. Id. - 10 - J-S06011-17 average juror would not have listed his or her entire employment history. 1925(a) Op. at 55. The trial court further noted that Walker failed to establish that he was prejudiced by the juror’s omission of the juror’s employment at the juvenile institution from the questionnaire. Id. The juror testified that he wondered a few days into the trial whether he recognized Walker, but it was a fleeting thought. The juror testified that he did not have any direct interaction with Walker, did not know Walker’s name, and did not know for what offense Walker had been adjudicated dependent. Id. The trial court therefore was “not persuaded that an average juror, who had only the slightest inkling that [he or she] may have recognized a defendant from such a situation, would have been influenced in [his or her] decision-making.” Id. at 55-56. After a review of the briefs, the record, the relevant case law, and the well-reasoned opinion of Judge Page, we conclude that the trial court did not abuse its discretion in denying Walker a new trial. We agree with and adopt the trial court’s reasoning. See 1925(a) Op. at 48-51, 53-56. IV. Prosecutor Misconduct Walker next argues that the trial court erred in overruling Walker’s objection to statements made during closing argument by the assistant district attorney (“ADA”). Walker argues the ADA improperly stated that to find Walker not guilty the jury would have to find that “an awful lot of people that took the stand” lied to the jury. Walker maintains that this comment was improper and highly prejudicial and, thus, a new trial is required. - 11 - J-S06011-17 “Our standard of review for a claim of prosecutorial misconduct is limited to whether the trial court abused its discretion.” Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa.Super. 2011) (quoting Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa.Super. 2008)). Further “[i]n considering this claim, our attention is focused on whether the defendant was deprived of a fair trial, not a perfect one.” Id. (quoting Rolan, 964 A.2d at 410). The trial court found that the ADA’s comments were improper. 1925(a) Op. at 39. The trial court, however, was “not convinced that these remarks alone would have created fixed bias and hostility towards [Walker] in the minds of the jury, considering the general propriety of the closing statement and the fair conduct over the course of the trial.” Id. at 39-40. The trial court further noted that it gave a prompt instruction in response to Walker’s objection and provided additional instructions during the final charge to the jury that closing arguments were not to be considered evidence. Id. at 40. After a review of the briefs, the record, the relevant case law, and the well-reasoned opinion of Judge Page, we conclude that the trial court did not abuse its discretion in finding Walker was not deprived of a fair trial. We agree with and adopt the trial court’s reasoning. See 1925(a) Op. at 37-40. - 12 - J-S06011-17 V. Sufficiency of the Evidence Walker next maintains that the evidence was insufficient to establish that he committed attempted first-degree murder, robbery of a motor vehicle, aggravated assault, or REAP.5 He maintains the victim “began grooming [Walker] by agreeing to purchas[e] marijuana” and the victim “enticed [Walker] into his vehicle and drove” to a secluded spot in near the Riverside Apartment Complex. Walker’s Br. at 64-65. The victim then became “sexually aggressive” and Walker attempted to rebuff the advances by pulling out his gun. Id. at 65. Walker maintains that when he exited the vehicle, the victim exited as well and “[Walker] confronted [the victim] and fired a shot which struck him below the right eye.” Id. He further notes that there was testimony that someone shouted “leave me alone” prior to the shooting. Id. at 70. We apply the following standard when reviewing a sufficiency of the evidence claim: [W]hether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every ____________________________________________ 5 Although Walker stated the Commonwealth did not present sufficient evidence to convict him of robbery of a motor vehicle, he does not include any discussion of this crime in the argument section of his brief. Therefore, he has waived any sufficiency challenge as to robbery of a motor vehicle. Commonwealth v. Charleston, 94 A.3d 1012, 1022 (Pa.Super. 2014) (finding claim waived where appellant failed to develop argument or offer pertinent legal authority). - 13 - J-S06011-17 element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (quoting Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)) (some alterations in original). A. Attempted First-Degree Murder, Aggravated Assault, and REAP “A person may be convicted of attempted murder ‘if he takes a substantial step toward the commission of a killing, with the specific intent in mind to commit such an act.’” Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008) (quoting Commonwealth v. Dale, 836 A.2d 150, 152 (Pa.Super. 2003)). Further: “The mens rea required for first-degree murder, specific intent to kill, may be established solely from circumstantial evidence.” Commonwealth v. Schoff, 911 A.2d 147, 160 (Pa.Super.2006). “[T]he law permits the fact finder to infer that one intends the natural and probable consequences of his acts[.]” Commonwealth v. Gease, 548 Pa. 165, 696 A.2d 130, 133 (1997). - 14 - J-S06011-17 Id. (alterations in original). “Specific intent to kill can be inferred from the use of a deadly weapon upon a vital part of the victim’s body.” Commonwealth v. DeJesus, 860 A.2d 102, 106 (Pa. 2004). Further, Under the Crimes Code, a person may be convicted of aggravated assault, . . . if he or she “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.A. § 2702(a)(1). Serious bodily injury is further defined by the Crimes Code as “bodily 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.” 18 Pa.C.S.A. § 2301. Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.Super. 2007). REAP is defined as follows: A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. 18 Pa.C.S. § 2705. “Reckless endangerment is a lesser included offense of aggravated assault and where the evidence is sufficient to support a claim of aggravated assault it is also sufficient to support a claim of recklessly endangering another person.” Commonwealth v. Smith, 956 A.2d 1029, 1036 (Pa.Super. 2008) (quoting Commonwealth v. Thompson, 739 A.2d 1023, 1028 n. 13 (Pa. 1999)). Walker merely argues that there was evidence that the victim “groomed” him by agreeing to buy marijuana and that the victim made - 15 - J-S06011-17 sexual advances. Such evidence, however, does not alter that the Commonwealth presented evidence that Walker shot the victim with the intent to kill him, including Walker’s statement, which included the following: “[H]e started talking about that he was tricking and that he wanted to suck my dick because he needed money. We started arguing and he started talking with his hands and shit and I told him to get the fuck out of my face and we both got out of the car basically at the same time. I got out of the passenger side and he got out of the driver’s side of the blue car. I walked around to the driver’s side and the big white guy was leaning up against the car. I walked over to him and he stood up like he was trying to scare me so I took out my gun and I shot him in the face.” Cmwlth. Ex. C-25. We conclude that the Commonwealth presented sufficient evidence from which a jury could find beyond a reasonable doubt that Walker shot the victim in a vital part of the victim’s body and that it presented sufficient evidence from which a jury could find Walker was guilty of attempted first-degree murder, aggravated assault, and REAP. B. Unsworn Falsification to Authorities Walker also maintains the Commonwealth failed to present sufficient evidence to support the conviction for unsworn falsification to authorities. The trial court found the Commonwealth presented sufficient evidence from which the jury could find beyond a reasonable doubt that Walker was guilty of unsworn falsification to authorities. 1925(a) Op. at 45-46. After a review of the briefs, the record, the relevant case law, and the well-reasoned opinion of Judge Page, we agree with and adopt the trial court’s reasoning. See 1925(a) Op. at 45-46. - 16 - J-S06011-17 Judgment of sentence affirmed. Judge Ransom joins in the memorandum. Justice Fitzgerald concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/14/2017 - 17 - Circulated 06/23/2017 12:31 PM

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