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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

             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).
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     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


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     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

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     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 five-
     and-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

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     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




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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

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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

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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.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2017




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               Circulated 06/27/2017 11:54 AM
