J-S81028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

HASAN MYERS

                            Appellant                   No. 2020 EDA 2015


              Appeal from the Judgment of Sentence August 9, 2013
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0001048-2012


BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                              FILED MARCH 02, 2017

       Hasan Myers appeals from the August 9, 2013 judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

convictions for third-degree murder and possessing an instrument of crime

(“PIC”)1. We affirm.

       The trial court summarized the facts as follows:

            On July 29, 2011 around 7:00 p.m., Shondra Wilder, a
            resident of Wilmot Street in Philadelphia, went outside to
            assist in bringing her children inside from their
            grandmother’s vehicle.     Once outside, she observed
            [Myers] and another male standing behind her mother’s
            vehicle, pointing down the street. Ms. Wilder returned to
            her home, only to hear a loud boom just a few minutes
            later. Rushing out to her front porch, Ms. Wilder saw
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
           18 Pa.C.S. § 2502(c); 18 Pa.C.S. § 907(a).
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       [Myers] and his companion run in her direction away from
       the scene of a shooting with [Myers] carrying a large
       weapon. Initially thinking the boom was caused by a car
       accident, Ms. Wilder later observed decedent William
       “Esco” Parker [(“victim”)] lying unconscious in the street.

          Erica Williams, also a resident of Wilmot Street, heard a
       loud gunshot from her living room and rushed to her front
       door to check on her stepson who was playing on the
       porch. When she reached the door, she saw [Myers] and
       another man running down the street toward her. At that
       point, Ms. Williams observed [Myers] attempt to force a
       large weapon into his pant leg, with the weapon extending
       from his armpit into his pant leg. She also observed
       [Myers’] dark complexion and the smirk on his face as the
       men ran past her and tuned the corner onto a connecting
       street. After the men left the area, Ms. Williams saw
       [victim] lying on the ground.

          Just prior to the shooting, a few blocks away on Filmore
       Place, [Myers], along with Arnold Briggs and several
       others, had gathered on the steps of Mr. Briggs’ home. At
       some point, [Myers] and a man identified only as Rico left
       the group with the stated intent to purchase Xanax from
       Wilmot Street.      A short time after [Myers] and his
       companion left the area, the crowd gathered at Mr. Briggs’
       home heard a loud gunshot. Within minutes, [Myers]
       reemerged on the street, sweating and smiling, boasting
       that he had just shot [victim] in the chest. [Myers],
       carrying a large, double-barreled, sawed-off shotgun,
       stated that he shot [victim] in retaliation for the murder of
       [Myers’] friend a few weeks before.

          At approximately 7:41 p.m., police received information
       of a shooting in the 2000 block of Wilmot Street. Arriving
       on the scene, Police Officers Cordero and Vasquez found
       [victim] lying face down in the street with a gaping hole in
       the lower left side of his torso, exposing his intestines.
       Police were unable to find any vital signs, and [victim] was
       transferred to Temple Hospital where he was pronounced
       dead at 8:12 p.m. At the scene, officers recovered small
       pieces of shotgun wadding.       [Victim]’s death, ruled a
       homicide, was caused by a shotgun wound to the
       abdomen, from which projectiles struck his ribs, stomach,
       pancreas, aorta, liver, spleen and kidneys.

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             Following the shooting, the witnesses were interviewed
         by detectives and each identified [Myers] as the gunman.
         Ms. Wilder was interviewed by Homicide detectives the
         morning after the shooting but was not shown any
         photographs from which to identify [Myers]. Ms. Wilder
         was interviewed a second time, on August 11, 2011, where
         she identified [Myers] as the gunman from a photographic
         array.     Ms. Williams was interviewed by Homicide
         detectives and, after becoming visibly upset, identified
         [Myers] as the gunman from a photographic array. Ms.
         Williams and Ms. Wilder subsequently participated in a
         lineup. Ms. Wilder did not successfully identify [Myers] at
         the lineup. However, Ms. Williams identified [Myers] as
         the gunman, explaining that [Myers’] face was etched in
         her memory from the day of the shooting. Mr. Briggs was
         also presented a photographic array, from which he
         selected [Myers] as the person who stated he was
         responsible for shooting and killing [victim].

            In addition, William McNeil gave a statement to
         Homicide Unit detectives, wherein he stated that he
         learned from neighborhood acquaintances that a man
         named Rico was responsible for shooting [victim].
         Approximately two (2) weeks after the shooting, Mr.
         McNeil encountered [Myers] and Rico, and relayed the
         information he had about the shooting. Rico explained
         that he wasn’t responsible and hadn’t been there at the
         time, while [Myers], laughing, stated “that’s my work.”
         [Myers] went on to state to the two men that after the
         shooting he discarded the clothing he wore that day and
         sold the gun. Pursuant to their investigation, an arrest
         warrant for [Myers] was prepared and executed on
         November 9, 2011.

Opinion, 1/20/16, at 4-7 (“1925(a) Op.”) (internal citations omitted).

      Following a jury trial, the jury found Myers guilty of third-degree

murder and PIC.     The trial court sentenced Myers to 22½ to 45 years’




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incarceration. Myers did not file post-sentence motions. On June 29, 2015,

he timely filed his notice of appeal to this Court.2

       On appeal, Myers raises the following issue:

            Commonwealth v. Walker[3] Overturned the Case Law
            Prohibiting Eyewitness Experts from Testifying. Walker is
            a New Rule and it Should Be Applied Retroactively to Mr.
            Myers’s Case. U.S. Const. amdts. V, VI, VIII, XIV; Pa.
            Const. art. 1., §§ 8, 9, 23.

Myers’ Br. at 4.

       First, we must decide whether Walker4 applies retroactively to Myers’

case and, if so, whether Myers preserved a Walker claim.                 Generally, “in

Pennsylvania . . . we apply the law in effect at the time of an appellate

decision.” Amato v. Bell & Gossett, 116 A.3d 607, 617 (Pa.Super. 2015).

“Where an appellate decision overrules prior law and announces a new

principle,    unless   the   decision    specifically   declares   the   ruling   to   be

____________________________________________


       2
        Myers initially filed his notice of appeal on August 14, 2013. We
quashed this appeal, however, due to prior counsel’s failure to file a
docketing statement in accordance with Pennsylvania Rule of Appellate
Procedure 3517. The trial court reinstated Myers’ appellate rights nunc pro
tunc on June 10, 2015 and appointed current counsel. This timely appeal
followed.
       3
           92 A.3d 766 (Pa. 2014).
       4
        Walker held that “the admission of expert testimony regarding
eyewitness identification is no longer per se impermissible.” 92 A.3d at 792-
93. It further held that “‘such expert testimony would be limited to certain
cases’ and trial courts must exercise their traditional role in determining the
admissibility of expert testimony.” Commonwealth v. Selenski, 117 A.3d
1283, 1285 (Pa.Super. 2015) (quoting Walker, 92 A.3d at 787, 789-91).



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prospective only, the new rule is to be applied retroactively to cases where

the issue in question is properly preserved at all stages.” Commonwealth

v. Cabeza, 469 A.2d 146, 148 (Pa. 1983). “Thus, ‘a party whose case is

pending on direct appeal is entitled to the benefit of changes in law which

occur before the judgment becomes final.’”5        Amato, 116 A.3d at 617

(quoting Commonwealth v. Brown, 431 A.2d 905, 906-07 (Pa. 1981)).

       Our Supreme Court has held that “[e]ven when a new rule of law is

deemed to apply retroactively, however, it still applies only to matters where

the question at issue was properly raised and preserved in the trial court and

at all subsequent stages of the adjudication.”           Commonwealth v.

Freeman, 827 A.2d 385, 395 (Pa. 2003).             It is well established that

“[i]ssues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”         Pa.R.A.P. 302; see also Commonwealth v.

Hawkins, 441 A.2d 1308, 1312 n.6 (Pa.Super. 1982) (“[I]ssues, even those

of constitutional dimension, cannot be raised for the first time on appeal.”).




____________________________________________


       5
        While we quashed Myers’ initial appeal due to prior counsel’s failure
to file a docketing statement, on April 22, 2014, Myers filed a petition
pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546,
seeking to have his appeal rights reinstated, which was granted. For this
reason, coupled with the fact that the Commonwealth does not dispute that
Myers’ case was on direct appeal at the time of the Walker decision – May
28, 2014 – we will treat his appeal as pending at the time Walker was
decided. See Commonwealth v. Selenski, 117 A.3d 1283 (Pa.Super.
2015) (applying Walker retroactively).



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      Here, because Myers’ case was on direct appeal at the time Walker

was decided, Walker would apply retroactively to his case. Myers, however,

has waived his claim. Cf. Selenski, 117 A.3d at 1284 (addressing Walker

claim and remanding for hearing where defendant attempted to admit expert

testimony from “a leading expert on human memory, concerning the

psychological    factors   that   influence   the   accuracy   of   eyewitness

identifications.”).   As Myers admits in his brief, his “trial counsel did not

attempt to present an eyewitness expert, nor did he object to the then

existing case law prohibiting him from introducing such testimony.” Myers’

Br. at 34. Indeed, Myers did not first raise his claim until he filed his second

1925(b) statement, after his appeal rights were reinstated. Because Myers

failed to preserve his claim, we find this issue waived.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2017




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