J-S34012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

MARCUS LEONARD WALLACE

                          Appellant                  No. 324 MDA 2015


          Appeal from the Judgment of Sentence February 2, 2015
             In the Court of Common Pleas of Franklin County
            Criminal Division at No(s): CP-28-CR-0000213-2010


BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                         FILED AUGUST 16, 2016

      Appellant, Marcus Leonard Wallace, appeals from the judgment of

sentence entered after a jury convicted him of, among others, first-degree

murder. We conclude that none of Wallace’s arguments merit relief, and

therefore, affirm.

      In the early morning of December 10, 2009, an assailant broke into

the bedroom of Consuela Wallace. A relative, sleeping in a neighboring

bedroom, heard a loud crash and a male’s voice arguing with Consuela. He

later identified the male’s voice as Consuela’s adopted son, Marcus.

Responding to the noise, the relative found Consuela lying on the floor of her

bedroom, unconscious and bleeding from the head. Consuela later died from

the blunt force trauma she had sustained to her head.
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      Investigators quickly focused on Marcus as a person of interest.

Shortly thereafter, Marcus was arrested on an outstanding, unrelated

warrant. Pursuant to this arrest, a sample of Marcus’s DNA was taken and

matched DNA found at the scene of the crime. Furthermore, while

incarcerated on the unrelated charges, he provided a confession to the

murder to officers who questioned him. He was charged with, among others,

the first-degree murder of Consuela.

      After lengthy proceedings concerning Marcus’s competence to stand

trial, a trial on these charges was held in January, 2015. The jury found him

guilty of first-degree murder and burglary. Marcus immediately moved for a

judgment of acquittal on the grounds of insufficient evidence. The trial court

denied the oral motion, and subsequently sentenced Marcus to life

imprisonment without parole, with a concurrent term of imprisonment of 10

to 20 years on the burglary conviction. This timely appeal followed.

      On appeal, Marcus raises five challenges to his convictions. First,

Marcus contends that the evidence at trial was insufficient to sustain a

conviction for first-degree murder. We review a challenge to the sufficiency

of the evidence as follows.

      The standard we apply when reviewing the sufficiency of the
      evidence is whether 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 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

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      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 trier 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. Furthermore, when reviewing a sufficiency claim, our
      Court is required to give the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

      However, the inferences must flow from facts and circumstances
      proven in the record, and must be of such volume and quality as
      to overcome the presumption of innocence and satisfy the jury
      of an accused’s guilt beyond a reasonable doubt. The trier of fact
      cannot base a conviction on conjecture and speculation and a
      verdict which is premised on suspicion will fail even under the
      limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      “To obtain a first-degree murder conviction, the Commonwealth must

demonstrate that a human being was unlawfully killed, the defendant

perpetrated the killing, and that the defendant acted with malice and a

specific intent to kill.” Commonwealth v. Burno, 94 A.3d 956, 969 (Pa.,

2014) (citation omitted). “The Commonwealth may use wholly circumstantial

evidence to discharge its burden of showing the accused intentionally killed

the victim … and circumstantial evidence can itself be sufficient to prove any

or every element of the crime ….” Commonwealth v. Perez, 93 A.3d 829,

841 (Pa. 2014) (citations omitted). Thus, “[s]pecific intent to kill can be


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proven where the defendant knowingly applies deadly force to the person of

another.” Commonwealth v. Stokes, 78 A.3d 644, 650 (Pa. Super. 2013)

(citation omitted).

      Wallace argues that the evidence of an argument between himself and

Consuela in the moments before her murder negates any possibility of

finding specific intent. However, “the specific intent to kill can be formed in a

fraction of a second ….” Commonwealth v. Chambers, 980 A.2d 35, 47

(Pa. 2009) (citations omitted). Wallace does not dispute, for purposes of this

argument, that he struck Consuela in the head with sufficient force to cause

injuries that led to her death. Furthermore, it is undisputed that Wallace

drove over a hundred miles that night to Consuela’s home and broke into

her bedroom late at night. Under these circumstances, the jury was entitled

to find that Wallace acted with the specific intent to kill Consuela.

      In his next argument, Wallace asserts that police interrogations that

occurred while he was imprisoned on unrelated charges violated his right to

counsel.

      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is limited to determining
      whether the factual findings are supported by the record and
      whether the legal conclusions drawn from those facts are
      correct.

      [W]e may consider only the evidence of the prosecution and so
      much of the evidence for the defense as remains uncontradicted
      when read in the context of the record as a whole. Where the
      record supports the findings of the suppression court, we are
      bound by those facts and may reverse only if the court erred in
      reaching its legal conclusions based upon the facts.

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       Further, [i]t is within the suppression court’s sole province as
       factfinder to pass on the credibility of witnesses and the weight
       to be given their testimony.

Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal

citations and quotations omitted; first brackets in original, second brackets

supplied).

       The following facts are uncontested for purposes of this appeal. On

December 11, 2009, Wallace was arrested in Pittsburgh on an unrelated

matter. Wallace was informally arraigned on this charge on December 15,

2009, and filed an application for appointment of counsel. Counsel was

appointed to represent Wallace shortly thereafter.

       On that same date, while still incarcerated on this unrelated charge,

Pennsylvania State Troopers interrogated Wallace regarding the death of

Consuela. Wallace concedes that he was provided with Miranda1 warnings

prior to the interrogation. See Appellant’s Brief, at 22. Wallace refused to

cooperate, but did not request counsel to be present during questioning.

       Approximately one week later, the Troopers returned to question

Wallace regarding blood having been found inside a car parked outside his

home in Pittsburgh. Once again, Wallace concedes that he was provided with

Miranda warnings. See id. Wallace admitted that he owned the car, but

posited that the blood must have been present when he bought the car.
____________________________________________


1
    Miranda v. Arizona, 384 U.S. 436 (1966).



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Wallace argues that the trial court erred in failing to suppress this statement

as it was procured in the absence of his court-appointed attorney.

      The critical flaw in Wallace’s argument is that he fails to distinguish

between his right to counsel for trial purposes, which is protected under the

Sixth Amendment, and his right to counsel during questioning, which is

protected under the Fifth Amendment. These two rights are not co-

extensive. See Commonwealth v. Steward, 775 A.2d 819, 827 (Pa.

Super. 2001). A defendant who has exercised his right to counsel during

questioning   is entitled   to   have   counsel present at   any subsequent

questioning while detained, even if the questioning is based upon unrelated

charges. See Commonwealth v. Santiago, 599 A.2d 200, 202 (Pa. 1991).

In contrast, a request for appointment of counsel to defend against criminal

charges is offense specific; such a request does not automatically invoke the

defendant’s right to have counsel present during questioning on unrelated

matters. See Steward, 775 A.2d at 827.

      Here, Wallace requested the appointment of counsel to defend him

against the unrelated criminal charges. He did not request that counsel be

present for any of the questioning that occurred regarding the murder of

Consuela. Thus, the Troopers did not violate his right to counsel when they

interrogated him. Wallace’s second issue on appeal merits no relief.

      Wallace’s third issue on appeal concerns the investigators’ use of the

Combined DNA Index System (“CODIS”) to generate a “cold hit” of Wallace


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on blood samples taken from Consuela’s home. Wallace contends that the

search of the CODIS database was an unreasonable search without a

warrant. He thus argues that the results should have been suppressed

pursuant to the Fourth Amendment. In support of his argument, Wallace

highlights Maryland v. King, 133 S.Ct. 1958 (2013). King proves his

argument’s undoing.

      There, the Supreme Court addressed the legality of Maryland’s DNA

Collection Act and the constitutionality of the CODIS program. The Act

requires law enforcement officials to take a DNA sample, by scraping the

inside of the arrestee’s cheek with a buccal swab, without a warrant. The

officials then run the DNA sample through CODIS to determine whether the

sample matches any unsolved crime. The Court held that while this process

constitutes a search under the Fourth Amendment, the search was

reasonable as the government interest outweighed the intrusion into an

individual’s privacy.

      The Court focused on the importance of the DNA sample in identifying

the arrestee. The Court likened using the DNA swab to identify the arrestee

to fingerprinting and photographing, explaining, “[f]inding occurrences of the

arrestee’s CODIS profile in outstanding cases is consistent with this common

practice. It uses a different form of identification than a name or fingerprint,

but its function is the same.” Id., at 1972. And noted that “[i]n light of the

scientific and statutory safeguards, once respondent’s DNA was lawfully


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collected the STR analysis of respondent’s DNA pursuant to CODIS

procedures did not amount to a significant invasion of privacy that would

render the DNA identification impermissible under the Fourth Amendment.”

Id, at 1980.

       Under King, searching the CODIS database for purposes of a criminal

investigation, that is, to solve a “cold case,” does not violate the Fourth

Amendment rights of those persons whose DNA profiles are stored in the

database.2 Wallace’s third issue on appeal, therefore, merits no relief.

       Next, Wallace contends that the trial court erred in permitting the

Commonwealth to present evidence of Wallace’s prior bad acts. “[T]he

admission of evidence is within the sound discretion of the trial court and will

be reversed only upon a showing that the trial court clearly abused its

discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super.

2012) (citation omitted; brackets in original). In reviewing a court’s decision

to permit evidence of alleged prior bad acts, we note that it is impermissible

to present evidence at trial of a defendant’s prior bad acts or crimes to

establish the defendant’s criminal character or proclivities. See Pa.R.E.

404(b); Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super.

2008). Such evidence, however, may be admissible “where it is relevant for

some other legitimate purpose and not utilized solely to blacken the
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2
 Wallace has not raised a challenge to this question under the Pennsylvania
Constitution. We therefore do not reach this issue.



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defendant’s character.” Commonwealth v. Russell, 938 A.2d 1082, 1092

(Pa. Super. 2007) (citation omitted).

      Rule 404(b)(2) provides that “[e]vidence of other crimes, wrongs, or

acts may be admitted for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity or absence of

mistake or accident.” Pa.R.E., Rule 404(b)(2). Rule 404(b)(2), however,

mandates that other crimes, wrongs, or acts evidence “may be admitted in a

criminal case only upon a showing that the probative value of the evidence

outweighs its potential for prejudice.”   Pa.R.E., Rule 404(b)(2); see also

Russell, 938 A.2d at 1092. “[O]ur courts will allow evidence of prior bad

acts where the distinct crime or bad act was part of a chain or sequence of

events which formed the history of the case and was part of its natural

development.” Commonwealth v. Walker, 656 A.2d 90, 99 (Pa. 1995)

(citation omitted).

      Wallace challenges five separate items of prior bad act evidence that

the trial court admitted at trial: (a) Wallace’s unauthorized entry to

Consuela’s home in 1996; (b) Consuela obtaining a protection from abuse

(“PFA”) order against Wallace shortly thereafter; (c) Consuela obtaining a

second PFA order against Wallace in 1997; (d) Wallace’s conviction for

defiant trespass and simple assault of Consuela in her home; and (e) the

various allegations and statements contained in the relevant applications for

PFA orders and police reports.


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      Wallace argues that since these events occurred between nine and

thirteen years prior to the murder of Consuela, they could not have formed

part of the chain or sequence of events that led up to the murder. Contrary

to Wallace’s argument, “there is no time limitation on when [evidence that

forms the history of an offense] becomes inadmissible.” Commonwealth v.

Drumheller, 808 A.2d 893, 905 (Pa. 2002) (citing Commonwealth v.

Lilliock, 740 A.2d 237 (Pa. Super. 1999)). In Lilliock, this Court held that a

twelve-year-old PFA order was properly admissible to prove motive. See 740

A.2d at 245. While Wallace is correct in noting that there was a significant

period of time between the acts at issue and the murder of Consuela, this is

properly addressed to the weight of the evidence, not its admissibility. See

Commonwealth v. Petrakovich, 329 A.2d 844, 850 (Pa. 1974). Wallace’s

fourth argument on appeal merits no relief.

      In his final issue on appeal, Wallace contends that the prosecutor

misled the jury when discussing the probabilities associated with a false

positive result in DNA testing. Wallace asserts that the Commonwealth’s

expert committed what is known as the “prosecutor’s fallacy.” “The

prosecutor’s fallacy is the assumption that the random match probability is

the same as the probability that the defendant was not the source of the

DNA sample.” McDaniel v. Brown, 130 S.Ct. 665, 670 (2010) (citation

omitted). The random match probability is a form of incidence rate statistics.




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Thus, a random match probability designates the rate at which the targeted

DNA is found in the general, undifferentiated population. See id.

      However, the prosecutor’s fallacy is a statistical fallacy, not based

upon any unique characteristic of DNA or DNA testing. Prior to advent of

widespread DNA testing in criminal cases, a scholarly article identified the

prosecutor’s fallacy in the following manner.

      [A]nectdotal evidence suggests people sometimes make serious
      errors when evaluating incidence rate statistics. One of the
      authors recently discussed the use of incidence rate statistics
      with a deputy district attorney. This experienced prosecutor
      insisted that one can determine the probability of a defendant’s
      guilt by subtracting the incidence rate of a “matching”
      characteristic from one. In a case where the defendant and
      perpetrator match on blood type found in 10% of the population,
      for example, he reasoned that there is a 10% chance the
      defendant would have this blood type if he is innocent and
      therefore concluded there is a 90% chance he is guilty. This
      assessment is misguided because it purports to determine the
      defendant’s probability of guilt based solely on the associative
      evidence, ignoring the strength of other evidence in the case.

      …

      Suppose you are asked to judge the probability a man is a
      lawyer based on the fact he owns a briefcase. Let us assume all
      lawyers own a briefcase but only one person in ten in the
      general population owns a briefcase. Following the prosecutor’s
      logic, you would jump to the conclusion that there is a 90%
      chance the man is a lawyer. But this conclusion is obviously
      wrong. We know that the number of nonlawyers is many times
      greater than the number of lawyers. Hence, lawyers are
      probably outnumbered by briefcase owners who are not lawyers,
      and a given briefcase owner is more likely to be a nonlawyer
      than a lawyer. To draw conclusions about the probability the
      man is a lawyer based on the fact he owns a briefcase, we must
      consider not just the incidence rate of briefcase ownership, but
      also the a priori likelihood of being a lawyer. Similarly, to draw
      conclusions about the probability a criminal suspect is guilty

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      based on evidence of a “match,” we must consider not just the
      percentage of people who would match but also the a priori
      likelihood that the defendant in question is guilty.

      The prosecutor’s misguided judgmental strategy, which we shall
      call the Prosecutor’s Fallacy, could lead to serious error,
      particularly where the other evidence in the case is weak and
      therefore the prior probability of guilt is low. Suppose, for
      example, that one initially estimates the suspect’s probability of
      guilt to be only .20, but then receives additional evidence
      showing that the defendant and perpetrator match on a blood
      type found in 10% of the population. According to Bayes
      theorem, this new evidence should increase one’s subjective
      probability of guilt to .71, not .90.

William C. Thompson & Edward L. Schumann, Interpretation of Statistical

Evidence in Criminal Trials, The Prosecutor's Fallacy and the Defense

Attorney's Fallacy, 11 LAW & HUM.BEHAV. 167, 170-71 (1987). The Bayes

theorem, when utilized for conventional probability, is nearly universally

accepted as valid. See State v. Spann, 617 A.2d 247, 257 (N.J. 1993).

“What is not at all clear is its general acceptance for the purpose of

converting what is essentially a non-mathematical conclusion of a prior

probability of guilt into a higher probability through the use of the formula.”

Id.

      Given this description of the prosecutor’s fallacy, we conclude that this

issue is more properly addressed to the weight of an expert’s testimony,

rather than its admissibility. Most appropriately, this issue would be the

subject of dueling experts. Even short of this ideal, the expert’s awareness

of the fallacy and its implications is fertile ground for cross-examination. Of




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course, expert testimony that clearly embraces the statistical fallacy can be

found to be inadmissible pursuant to Frye3 in an appropriate proceeding.

       Here, we have little trouble in determining that the Commonwealth’s

expert did not succumb to the fallacy. After testifying to his opinion

regarding the extraordinarily low probability of a random match, the expert

provided the following responses to wrap up cross-examination.

       Q.     And just so we’re clear here you’re testifying – you’ve
       testified before clearly so you understand the jury’s job here is
       to determine guilt or innocence?

       A.     It is, yes.

       Q.     You’re not testifying to guilt or innocence?

       A.     No, absolutely not.

       Q.   You’re testifying to the probability of a match – DNA profile
       match?

       A.     That’s exactly right.

N.T., Trial, 1/29/15, at 80. The Commonwealth’s expert did not confuse the

incidence rate with probability of guilt.

       Nor is this a case where the other evidence linking Wallace to the

crime was weak. The Commonwealth presented evidence of Wallace’s long-

standing hostility towards Consuela. The Commonwealth also presented

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3
  Frye v. United States, 293 F. 1013 (D.C. Cir.1923). Under Frye, novel
scientific evidence must be generally accepted in the relevant scientific
community before it will be admitted. Pennsylvania Courts utilize the Frye
test. See Betz v. Pneumo Abex, LLC, 44 A.3d 27, 30 (Pa. 2012).



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evidence that a vehicle owned by Wallace had been seen in the area of

Consuela’s house on the night of the murder. Wallace’s blood was later

found on the steering wheel of the car. A witness in the home identified a

voice he heard arguing with Consuela moments before her murder as

Wallace’s. The blood tested was, among others, found on broken glass at

Consuela’s home and on her bedroom wall. Thus, the jury was entitled to

infer that blood found at these locations was not there innocently.

      Under these circumstances, we are confident that the Commonwealth

did not rely on the prosecutor’s fallacy to prove Wallace’s guilt. Wallace’s

final issue on appeal therefore merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2016




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