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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


       *
           Former Justice specially assigned to the Superior Court.
       1
        18 Pa.C.S. §§ 901(a); 2502(a), 2702(a)(1), 3702(a), 2705,
4904(a)(1), 6105(a)(1), respectively.
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       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 self-
       defense 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. §


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              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


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              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


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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.         Commonwealth v.

Brown, 64 A.3d 1101, 1104 (Pa.Super. 2013).                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).



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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 10-

15. 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




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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.



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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


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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 cross-

examined 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 34-

37.

      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.

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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.



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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.

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      “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.




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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).




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         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).

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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


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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.


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     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




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