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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
MARCUS SMITH,                          :          No. 311 WDA 2013
                                       :
                       Appellant       :


         Appeal from the Judgment of Sentence, October 3, 2012,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0002575-2011


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED OCTOBER 14, 2014

     Marcus Smith appeals the judgment of sentence entered on October 3,

2012, in the Court of Common Pleas of Allegheny County. We affirm.

     The facts, as summarized by the trial court, are as follows:

           Appellant spent the morning of February 12, 2011,
           at the home of Tanisha Helms in the Hill District
           section of the City of Pittsburgh. (T.T. 146-147,
           157, 593).[Footnote 6]      While there Appellant
           returned a phone call from his girlfriend,
           Ashley Woessner, who confronted him about getting
           another woman pregnant.           (T.T. 476-477).
           Appellant, assuming that their mutual friend
           Dane Smith had told Woessner about the other
           woman, became upset with Smith.         Smith and
           Appellant referred to each other as brothers even
           though they were unrelated.[Footnote 7] He told
           Woessner, “Dane is lying. Say no more, he is gone,”
           and hung up on Woessner. (T.T. 475, 477, 595).
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                [Footnote 6]     The designation “T.T.”
                followed by numerals refers to Trial
                Transcript, August 20-23, 2012.

                [Footnote 7]    It was established that
                Dane Smith introduced Marcus Smith to
                Ashley Woessner as his brother, though
                the two were unrelated.       (T.T. 475).
                Additionally, when police interrogated
                Appellant about the shooting death of
                Dane Smith he became angry and
                several times stated, “I did not shoot my
                brother.” (T.T. 595).

                Appellant exited Helms’s residence and waited
          on her front porch, anticipating Smith’s arrival there.
          Appellant’s friend Donta Ripley was already waiting
          outside for Appellant, and joined him on the porch.
          (T.T. 317, 322).          Dane Smith arrived at
          approximately 2:00 P.M. and Appellant walked down
          the porch steps to confront him. The two argued
          and Smith began to walk away. Appellant yelled for
          Smith to stop, but he continued to walk away.
          Appellant pulled out a sawed-off shotgun and shot
          into the air, prompting both Smith and Ripley to run
          down Reed Street towards Centre Avenue. (T.T.
          135, 179, 199, 208-210, 257, 323-325, 593-594).

                Appellant, shotgun in hand, chased Smith onto
          Centre Avenue where Smith darted back and forth
          between midday traffic in an attempt to avoid
          Appellant. (T.T. 179-180, 186, 211, 226, 319-320,
          325-326). Appellant shot at Smith striking him on
          the right side with shotgun pellets. (T.T. 239-242,
          258-259). Despite being shot, Smith managed to
          maneuver around a truck on Centre Avenue, but
          Appellant followed him as Smith pleaded, “Don’t
          shoot me. I didn’t make this phone call. I had
          nothing to do with it.” (T.T. 256, 260, 263-264).
          Appellant shot Smith again, this time grazing his
          right arm and causing him to fall to the ground.
          (T.T. 188, 229, 245-246, 265, 285).       From the
          ground Smith again pleaded with Appellant, “You
          don’t have to do this.” (T.T. 230). Appellant stood


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          over Smith, pointed the gun at him, and shot him in
          the head. (T.T. 188, 230-231, 243, 283, 285-286).

                Appellant crossed to the opposite side of
          Centre Avenue and ran behind a church. (T.T. 266,
          283, 331). From the parking lot behind the church,
          Appellant jumped over a fence and slowly jogged up
          the hillside away from the scene. (T.T. 268-269,
          289, 306).

                When police arrived Smith was found lying
          facedown [sic] next to the front wheel of the truck;
          he was bleeding from his side and had an obvious
          gunshot wound to the head. (T.T. 163, 305-306).
          He was emergently transported to Mercy Hospital but
          attempts to save his life were to no avail. (T.T.
          352). Smith suffered a gaping wound to his right
          arm, a large defect in his skull, and small pellet
          wounds on his right hip, arm, side, abdomen, and
          back. (T.T. 239-242). The cause of death was
          multiple gunshot wounds to the head and trunk, and
          the manner of death was homicide. (T.T. 255).

                Appellant     attempted      to   avoid    taking
          responsibility for Smith’s death by persuading
          Emmanuel Robinson to turn himself in as the
          shooter. Robinson was a friend of both Appellant
          and Smith, and was of limited cognitive ability.
          Appellant suggested that since Appellant was
          expecting a child with Robinson’s aunt, and since
          Robinson did not have a criminal record, he could
          take responsibility for the shooting. Woessner and
          Appellant drove Robinson to the building that housed
          the homicide office and told him to ask for
          Detective Sherwood.         (T.T. 332-333, 421-423).
          Robinson went into the homicide office and
          confessed to the shooting, but once it became
          apparent that he was not the shooter based on his
          limited ability and inability to answer basic questions
          about the shooting, Detective Sherwood had
          Robinson escorted home.          (T.T. 425-426, 561).
          Undeterred, Appellant directed Robinson to locate
          the murder weapon in the woods near the end of
          Brackenridge Street where he had discarded it.


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          Woessner drove Robinson to that location the
          following morning and Robinson retrieved the
          shotgun.    (T.T. 427-428, 488).      Woessner later
          drove Robinson to the homicide office and waited
          outside with the headlights shining into the lobby so
          she could update Appellant while Robinson went
          inside with the shotgun.      Once inside, Robinson
          notified the front desk that he was there to confess
          to a murder and laid down on the ground with his
          limbs outstretched so detectives could retrieve the
          shotgun. Detectives escorted Robinson inside and
          Woessner drove away. (T.T. 431-433, 494). Once
          inside, Robinson told Detective Sherwood that
          Appellant sent him there. Robinson was arrested
          and charged with a firearms violation. (T.T. 407,
          433-434). Upset that homicide charges had not
          been brought against Robinson, Appellant sent
          Woessner to police headquarters the following day to
          say that Robinson was the killer. However, once she
          arrived there and was interrogated by detectives,
          Woessner told them that Robinson was setup by
          Appellant to confess to a crime that Robinson did not
          commit. (T.T. 497-500).

                Police executed a search warrant and
          recovered a backpack from the living room of
          Helms’s residence on Reed Street, containing indicia
          for Appellant and an empty Remington shotgun shell
          box.    (T.T. 147-149, 151-152).      One 12-gauge
          shotgun shell was recovered from the sidewalk in
          front of Helms’s Reed Street residence and a second
          12-gauge shotgun shell was recovered from a nearby
          yard on Centre Avenue. It was determined that
          these shells were both discharged from the firearm
          that Appellant instructed Robinson to retrieve. (T.T.
          138, 144, 161, 365-366). A 12-gauge shotgun shell
          wadding was recovered from Smith’s brain during
          autopsy, and a second shotgun shell wadding was
          found next to the truck where Smith was found on
          Centre Avenue. (T.T. 165-166, 244, 365-366).

               Based on the evidence above and an interview
          with Woessner which revealed that Appellant hid
          several guns at a home in North Braddock, police


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             obtained an arrest warrant for Appellant and a
             search warrant for that home. (T.T. 563). The SWAT
             team executed the search; their announcement
             prompted Appellant to flee from the front bedroom
             to the rear of the house, but he eventually emerged
             and was detained. SWAT found the duffel bag of
             guns described by Woessner in the front bedroom,
             as well as shotgun shells and a second loaded
             sawed-off shotgun. (T.T. 564, 567, 582, 584-585,
             587). Appellant was formally arrested and charged
             as noted hereinabove.

Trial court opinion, 11/12/13 at 5-9.

      Appellant was charged with one count of criminal homicide, two counts

of person not to possess a firearm, one count of altering/obliterating mark of

identification,   one   count   of   possession   of   a   firearm   with   altered

manufacturer’s number, and two counts of prohibited offensive weapon.1

Appellant filed a motion to suppress and a hearing was held on August 20,

2012, before the Honorable Edward J. Borkowski. The motion was denied

and a jury trial immediately commenced.            Appellant was subsequently

convicted of first degree murder, possession of a firearm with altered

manufacturer’s number, and both counts of possession of a prohibited

offensive weapon; he was found not guilty of altering or obliterating marks

of identification.

      On October 3, 2012, appellant received a mandatory sentence of life

imprisonment without the possibility of parole for first degree murder, a



1
  The two counts of person not to possess a firearm were severed prior to
trial. On August 28, 2012, appellant was found guilty of both counts.


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consecutive term of 3 to 6 years’ imprisonment at Count 2 (person not to

possess a firearm), at Count 3 (person not to possess a firearm) and Count

5 (possession of a firearm with altered manufacturer’s number) concurrent

terms of 3 to 6 years’ imprisonment were imposed. No further penalty was

assigned for the remaining counts. Appellant’s post-sentence motions were

denied by an order entered on January 18, 2013, and a timely notice of

appeal was filed on February 11, 2013. (Docket #21, 22.)

      Herein, the following issues have been presented for our review:

            I.     Did the lower court err in denying the Motion
                   to Suppress the identification made by
                   Fannie Lauw?

            II.    Did the lower court err in allowing the
                   Commonwealth to present the testimony of
                   Dionne Walker, who provided an in-court
                   identification after    providing a   vague
                   description to detectives on the day of the
                   incident, and after being unable to identify
                   anyone in a photo array?

            III.   Did the lower court err in denying the motion
                   for a new trial on the grounds that the verdict
                   was against the weight of the evidence?

Appellant’s brief at 3.

      Appellant’s first two issues argue that the trial court erred by not

suppressing Fannie Lauw’s and Dionne Walker’s identification testimony that

appellant was the shooter.

            When reviewing a challenge to a trial court’s denial
            of a suppression motion, our standard of review is:




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                 limited to determining whether the
                 suppression court’s factual findings are
                 supported by the record and whether the
                 legal conclusions drawn from those facts
                 are correct. Because the Commonwealth
                 prevailed before the suppression court,
                 we may consider only the evidence of the
                 Commonwealth 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
                 suppression court’s factual findings are
                 supported by the record, we are bound
                 by these findings and may reverse only if
                 the    court’s   legal  conclusions   are
                 erroneous. Where, as here, the appeal
                 of the determination of the suppression
                 court turns on allegations of legal error,
                 the suppression court’s legal conclusions
                 are not binding on an appellate court,
                 whose duty it is to determine if the
                 suppression court properly applied the
                 law to the facts. Thus, the conclusions of
                 law of the courts below are subject to
                 our plenary review.

Commonwealth v. Delvalle, 74 A.3d 1081, 1084 (Pa.Super. 2013),

quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-362 (Pa.Super.

2012), appeal denied, 57 A.3d 68 (Pa. 2012).

     We find no error with either the trial court’s decision or rationale.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, it is our

determination that there is no merit to the first two questions raised on

appeal.    The   trial   court’s   opinion,   filed   on   November   12,   2013,




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comprehensively discusses and properly disposes of the question presented.

We will adopt it as our own and affirm on that basis.

      We note our agreement with the trial court that both witnesses had an

independent basis for their identifications and both witnesses independently

recognized appellant when they saw him in the courtroom.          Additionally,

although both witnesses failed to identify appellant positively in the

photographic array after the incident, neither of them ever identified another

person as the shooter.     The absence of pretrial identification affects the

weight of the identification evidence at trial, not its admissibility.    See

Commonwealth v. Rush, 562 A.2d 285, 289 (Pa. 1989). Accordingly, the

witnesses are permitted to identify the defendant as the perpetrator at trial,

if they are able to do so, subject to cross-examination regarding their failure

to identify him on previous occasions. Commonwealth v. McIntosh, 476

A.2d 1316, 1320 (Pa.Super. 1984).

      In the final issue presented, appellant argues that his convictions are

against the weight of the evidence. We note our standard of review:

            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


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            not against the weight of the evidence and that a
            new trial should be granted in the interest of justice.

            This does not mean that the exercise of discretion by
            the trial court in granting or denying a motion for a
            new trial based on a challenge to the weight of the
            evidence is unfettered. In describing the limits of a
            trial court’s discretion, we have explained[,] [t]he
            term ‘discretion’ imports the exercise of judgment,
            wisdom and skill so as to reach a dispassionate
            conclusion within the framework of the law, and is
            not exercised for the purpose of giving effect to the
            will of the judge. Discretion must be exercised on
            the foundation of reason, as opposed to prejudice,
            personal motivations, caprice or arbitrary actions.
            Discretion is abused where the course pursued
            represents not merely an error of judgment, but
            where the judgment is manifestly unreasonable or
            where the law is not applied or where the record
            shows that the action is a result of partiality,
            prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in the

original) (citations omitted).

      We agree with the Commonwealth that in making his argument on

appeal, appellant ignores the evidence presented against him and argues the

evidence in his favor. Here, the trial court took into consideration that the

jury heard identification testimony from three separate witnesses and also

heard testimony concerning appellant’s plan, within hours of the murder, of

having Robinson falsely confess to the crime. (Trial court opinion, 11/12/13

at 18-19.) Two inmates also testified that appellant made statements about

killing his brother and needing to get rid of a female witness. (Id.) The trial




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court found that the verdict did not shock its sense of justice. We find no

reason to overturn this decision.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2014




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