J-S02007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
MARCUS BROWN                            :
                                        :
                  Appellant             :   No. 243 EDA 2017

          Appeal from the Judgment of Sentence January 3, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0004513-2015


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY BOWES, J.:                               FILED MAY 21, 2018

      Marcus Brown appeals from the judgment of sentence of life

imprisonment imposed following his conviction of first-degree murder and

related firearms charges. We affirm.

      The trial court set forth the relevant facts underlying this appeal as

follows:

            On September 20, 2014, the Twisters Motorcycle Club
      hosted its annual anniversary ceremony at the Nifiji Event Hall at
      1432 Chew Street in northern Philadelphia. Between 500 and
      1,000 people affiliated with several Philadelphia motorcycle clubs
      attended the event, including the decedent, Desmond “Little G”
      Davis, a member of the Twisters, [Appellant], Marcus “Taz”
      Brown, a member of the rival Byrd Riders Motorcycle Club, and
      his co-defendant, Stanley “Stizz” Newell, another Byrd Rider.

            At approximately midnight on September 21, 2014, an
      argument between “Gun,” the chapter president of the Byrd
      Riders, and the decedent commenced outside the event hall on
      Chew Street, drawing the attention of [Appellant] and Newell.
      As the argument continued, . . . Newell approached the decedent
* Retired Senior Judge Assigned to the Superior Court.
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     and argued with him about a gun.             During this argument,
     [Appellant] approached the decedent from behind, drew a Colt
     .45 caliber pistol, and pointed it at his face.

           Approximately ten feet away from [Appellant] and
     decedent, Michael “Country” Baker, a member of the Twisters,
     drew his pistol, raised it above his head, and fired one shot. The
     gunfire caused the crowd of over seventy-five attendees
     standing outside the event hall to panic and scatter. Several
     armed attendees drew their weapons and proceeded to fire at
     each other. The decedent . . . ran down Chew Street, turned on
     Park Avenue, and ran away from the Event Hall. [Appellant]
     gave chase, followed the decedent onto Park Avenue, aimed his
     weapon toward the decedent’s back, and fired at least four
     shots, killing him.

           Deputy Chief Medical Examiner Dr. Albert Chu, an expert
     in forensic pathology, reviewed [the decedent’s] autopsy report
     and testified that [he] suffered four gunshot wounds, including
     non-fatal, penetrating wounds to his left shoulder and left
     buttock, and fatal, penetrating wounds to his lower back and
     right buttock. The projectiles causing the decedent’s lower back
     and right buttock wounds travelled through several vital organs,
     including the heart, small intestine, and liver. The decedent
     suffered additional abrasions to his right hip, face, elbow, and
     left knee, consistent with terminal collapse injury.       To a
     reasonable degree of medical certainty, Dr. Chu concluded that
     the cause of death was homicide.

           Officers of the Philadelphia police crime scene unit
     investigated the area surrounding the Nifiji Event Center and
     recovered twenty-five fired cartridge casings (FCCs), including
     nine .45 caliber FCCs, seven projectiles or fragments, and four
     handguns, including a .45 caliber Springfield XDS pistol. Of the
     nine .45 caliber FCCs discovered at the crime scene, five
     matched the recovered Springfield XDS pistol.           The four
     remaining .45 caliber FCCs matched each other but did not
     match the recovered Springfield, and instead were fired from an
     unidentified pistol. The four .45 caliber FCCs matching the
     unidentified pistol were recovered from the intersection of Chew
     Street and Park Avenue, approximately one-quarter of a block
     from where the decedent’s body was discovered.




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             Officer Ronald Weitman, an expert in firearms and
      ballistics, reviewed all of the ballistics evidence recovered from
      the crime scene and the decedent’s body. Officer Weitman
      examined four projectiles recovered from the decedent and
      determined that they were .45 caliber. After comparing the
      projectiles, Officer Weitman concluded that they were fired from
      the same firearm, but that they were not fired from the
      Springfield XDS recovered from the crime scene.

             In the aftermath of the shooting, Philadelphia Police
      interviewed Tyrell Ginyard, a member of the Twisters motorcycle
      club present at the shooting. Ginyard told police and later
      testified that he was approximately a foot away from the
      decedent . . . when [Appellant] drew his .45 caliber pistol and
      pointed it at the decedent’s head.       [Mr.] Ginyard further
      observed [Appellant] chase [Mr. Ginyard] and the decedent
      around the corner of Chew Street and Park Avenue, after which
      [the decedent] was struck by gunfire and collapsed on the
      sidewalk.

           Police further interviewed Rodney Gregory, a Byrd Rider,
      who told police and later testified that he observed [Appellant]
      brandish a gun the night of the murder. Gregory identified both
      [Appellant] and his co-defendant[, Newell,] via photo array, and
      when shown surveillance video of the incident, Gregory identified
      [Appellant] as holding a pistol in his right hand.

             Detective Frank Mullen, an expert in video recovery,
      obtained video surveillance footage from three angles at the
      Nifiji Event Hall and a private residence at 5626 Park Avenue.
      Video recovered from the Nifiji Event Hall showed [Appellant]
      point a gun at the decedent[’s] head just under the building’s
      awning on Chew Street. A different camera angle from this
      location showed the decedent . . . attempt to escape the chaos
      outside the event hall by running down Chew Street and turning
      onto Park Avenue. That same camera showed [Appellant] fire at
      the decedent.

Trial Court Opinion, 3/16/17, at 2-5 (citations, footnote, and some

capitalization omitted).




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       Appellant and Newell were arrested and charged with murder and

related firearms offenses.           On November 15, 2016, a jury rejected

Appellant’s claim of self-defense, and convicted him of first-degree murder

and related firearms offenses.1                On January 3, 2017, the trial court

sentenced Appellant to life in prison without the possibility of parole on the

murder charge, and a concurrent aggregate sentence of two to four years on

the firearms violations.       The trial court denied Appellant’s post-sentence

motion raising challenges to the weight and sufficiency of the evidence.

Appellant filed a timely notice of appeal, and a court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.              The trial

court filed a Pa.R.A.P. 1925(a) opinion.           This matter is now ready for our

review.

       Appellant raises the following claims:

       A. Was the evidence presented insufficient to sustain a verdict of
          first[-]degree murder?

       B. Was the weight of the evidence presented insufficient to
          support the Appellant’s conviction?

Appellant’s brief at 6 (capitalization omitted).

       In his first claim, Appellant challenges the sufficiency of the evidence

supporting his conviction of first-degree murder. Our scope and standard of

review of a sufficiency claim is well-settled:
____________________________________________


1 The charges against Appellant and Newell were consolidated for trial. The
jury found Newell guilty of third-degree murder in Baker’s shooting death.



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            [O]ur standard of review of sufficiency claims requires that
      we evaluate the record in the light most favorable to the verdict
      winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. 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.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty.       [T]he facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant’s innocence. Any doubt about
      the defendant’s guilt is to be resolved by the fact finder unless
      the evidence is so weak and inconclusive that, as a matter of
      law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa.Super. 2013) (citations

and quotation marks omitted).

      In   order   to   sustain   a   conviction   for   first-degree   murder,   the

Commonwealth must prove that: (1) a person was unlawfully killed; (2) the

accused is responsible for the killing; and (3) the accused acted with malice

and specific intent to kill. See Commonwealth v. Hitcho, 123 A.3d 731,

746 (Pa. 2015); 18 Pa.C.S. § 2502(a). Under the Crimes Code, murder in

the first degree requires an “intentional killing,” which is defined as a “willful,

deliberate and premeditated killing.”      18 Pa.C.S. § 2502(d).        The use of a

deadly weapon on a vital part of the body is sufficient to establish the

specific intent to kill. See Commonwealth v. Tucker, 143 A.3d 955, 964

(Pa.Super. 2016).

      When, as in this case, the defendant has raised a claim of self-

defense, “[t]he use of force upon or toward another person is justifiable



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when the actor believes that such force is immediately necessary for the

purpose of protecting himself against the use of unlawful force by such other

person on the present occasion.”     18 Pa.C.S. § 505.     If the defendant

properly raises self-defense under section 505, the Commonwealth must

prove beyond a reasonable doubt that the defendant’s act was not justifiable

self-defense. See Commonwealth v. McClendon, 874 A.2d 1223, 1229-

30 (Pa.Super. 2005).      The Commonwealth sustains this burden if it

establishes at least one of the following: (1) the accused did not reasonably

believe that he was in danger of death or serious bodily injury; or (2) the

accused provoked or continued the use of force; or (3) the accused had a

duty to retreat and the retreat was possible with complete safety.    Id. at

1230.

        Appellant maintains that evidence presented by the Commonwealth

demonstrated that as many as eight guns were involved in the incident,

members of both the Twisters and Byrd Riders were firing weapons at the

time of the shooting, and a number of people were shooting in the

decedent’s direction. Appellant highlights that the evidence established that

the decedent was shot by two different people, as the projectiles discovered

in his body consisted of both .45 caliber and .38/.357 caliber bullet

fragments. Appellant claims that there is no physical evidence linking him to

the shooting, nor any evidence that he owned a .45 caliber gun. Appellant’s

brief at 14-15.


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     Appellant argues that Mr. Ginyard is the only individual who testified

that Appellant had a .45 caliber weapon and shot at the decedent, and posits

that Mr. Ginyard’s testimony should be discredited on the basis that, in his

initial statement to police, he did not identify Appellant as one of the

shooters at the scene.      Appellant further contends that that this omission

establishes that he acted in self-defense.    According to Appellant, a video

presented at trial is consistent with his claim that he shot his weapon in

response to fear of imminent danger of death or serious bodily injury caused

by the decedent firing his weapon. Appellant’s brief at 15.

     The trial court rejected Appellant’s sufficiency claim, and explained its

determination as follows:

           Video surveillance footage recovered from the Nifiji Event
     Hall showed [Appellant] draw a .45 caliber pistol and point it at
     the decedent’s head immediately prior to the shooting.
     Additional footage recovered from the Nifiji Event Hall showed
     [Appellant] fire his weapon down Park Street towards the
     decedent.     [Mr.] Ginyard testified that that he and [the
     decedent] ran down Chew Street and turned onto Park Avenue
     as [Appellant] gave chase. After running halfway down the city
     block, [Mr.] Ginyard watched [the decedent] collapse after being
     struck with gunfire. Dr. Chu testified that the decedent was
     struck in the back with four bullets, two of which traveled
     through his vital organs.

           ....

           Although it is undisputed that multiple parties discharged
     their weapons on the night of the murder, forensic evidence and
     [Mr.] Ginyard’s testimony sufficiently disproved [Appellant’s]
     self-defense argument.     Dr. Chu’s uncontroverted testimony
     showed that the decedent . . . suffered four wounds to his back
     caused by .45 cal[iber] projectiles. [Mr.] Ginyard testified that
     [Appellant] carried a .45 cal[iber] pistol and pointed it at the

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       decedent.     Video evidence showed [Appellant] fire at the
       decedent as he ran away. [Mr.] Ginyard recounted how he
       attempted to flee the shooting with the decedent, only to watch
       him collapse after having been struck in the back during his
       escape. Nothing on the record indicated that the decedent fired
       a weapon or otherwise attacked [Appellant]. The evidence is
       sufficient to disprove [Appellant’s] self-defense claim, as the
       Commonwealth has shown, beyond a reasonable doubt, that
       [Appellant] could not reasonably believe he was in danger of
       death or serious bodily injury, and that he continued to use force
       as the decedent attempted to flee.

Trial Court Opinion, 3/16/17, at 6-7 (citations to record omitted).

       Based on the evidence of record, the jury could reasonably infer that

Appellant chased the decedent as he was fleeing, and fired the shots which

killed him. As noted above, the use of a deadly weapon on a vital part of

the body is sufficient to establish the specific intent to kill. Tucker, supra.

Once    the   issue   of self-defense   had been raised by Appellant, the

Commonwealth sustained its burden of proof by demonstrating beyond a

reasonable doubt that Appellant did not reasonably believe that he was in

danger of death or serious bodily injury, since he fired the fatal shots as the

decedent was fleeing from him. Thus, Appellant is not entitled to relief on

his first claim.

       In his second claim, Appellant contends that the verdict depended

primarily on Mr. Ginyard’s trial testimony, which was inconsistent with his

initial statement to police.    Appellant claims that the physical evidence

contradicts Mr. Ginyard’s testimony, because the video recovered from the

scene does not show what caliber weapon Appellant was holding, or that he


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discharged it.   Appellant posits that Mr. Ginyard’s testimony should be

discredited because he provided false information on gun applications, and

was on probation for fraud at the time of trial.     On this basis, Appellant

claims that the jury had no basis for rendering a guilty verdict on the murder

charge other than Mr. Ginyard’s inherently unreliable testimony.

      Our standard of review of a challenge to the weight of the evidence is

well-settled:

             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.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal

citations omitted).

      As noted above, we assess only the trial court’s exercise of discretion

in evaluating whether the jury’s decision to give more weight to certain facts

constitutes a denial of justice. Here, the trial court determined there were

no grounds to disturb the jury’s credibility findings or reweigh the evidence

after examining all of the evidence, stating:

            [Appellant’s] argument ignores the substantial video
      evidence showing [Appellant] brandishing a weapon prior to the
      shooting, threatening the decedent with his weapon, and firing

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       the weapon towards the decedent. Eyewitnesses [Mr.] Ginyard
       and Gregory identified [Appellant] as the shooter on the video
       surveillance tape, while [Mr.] Ginyard testified that he stood one
       foot away from the decedent when [Appellant] pointed a gun at
       his face. Although trial counsel impeached [Mr.] Ginyard with
       evidence of his prior crimen falsi convictions for fraud and
       providing false information to obtain a firearm, the jury was free
       to consider those convictions during their deliberations and
       found [Appellant] guilty nonetheless.

Trial Court Opinion, 3/16/17, at 9-10 (citations to record omitted).

       Additionally, our review discloses that Mr. Ginyard was subject to

extensive cross-examination before the jury regarding his failure to identify

Appellant in his initial statement, and that he presented an explanation for

the inconsistency.2 See N.T. Trial, 11/9/16, at 35-84. The jury had a full

opportunity to observe Mr. Ginyard and to assess the credibility of his

explanation.     After reviewing all the evidence, the jury found that the

credible evidence identified Appellant as the shooter. As such, we conclude

the trial court properly exercised its discretion in finding the jury’s verdict

was not so contrary to the evidence as to shock the conscience.

       Judgment of sentence affirmed.



____________________________________________


2 Our review discloses that Mr. Ginyard testified that he spent approximately
thirty-six hours at the police station following the incident. During that time,
he gave two statements to police. After providing his first statement, Mr.
Ginyard was shown surveillance video from an area near the shooting. After
viewing the videotape, Mr. Ginyard provided his second statement to police,
wherein he identified Appellant as an individual in the video holding a gun,
and stated that Appellant shot at the decedent. See N.T. Trial, 11/9/16, at
35-84.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/18




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