J. S12042/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
SHAWN ADRIAN WALKER,                       :         No. 1094 MDA 2017
                                           :
                          Appellant        :


             Appeal from the Judgment of Sentence, April 14, 2017,
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No. CP-22-CR-0004951-2015


BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED APRIL 10, 2018

        Shawn Adrian Walker appeals from the April 14, 2017 judgment of

sentence entered in the Court of Common Pleas of Dauphin County following

his conviction in a jury trial of one count each of criminal homicide – third-

degree murder; possession of a firearm prohibited; and firearms not to be

carried without a license.1       The trial court sentenced appellant to an

aggregate term of incarceration of 18 to 36 years. We affirm.

        The trial court set forth the following factual history of this case as

gleaned from the trial transcript:

              [O]n the night of July 11, 2015 into the morning
              hours of July 12, 2015, Shawn Walker (“[a]ppellant”)
              shot     and    killed    Eric  Rivers    (“[v]ictim”).
              Officer Christopher Auletta, of the Harrisburg City
              Police, received a call from dispatch that shots were

1   18 Pa.C.S.A. §§ 2501(a), 6105(a)(1), and 6106(a)(1), respectively.
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          fired on or near Crescent Street, Harrisburg[,]
          Pennsylvania. When Officer Auletta arrived on the
          scene, he saw a man (later identified as the victim)
          lying on a porch, not breathing with an injury to the
          front of his chest. There were no weapons on or near
          the victim.         Through Officer    Auletta, the
          Commonwealth introduced a photograph of the
          victim on the porch after EMS assessed him.

          Doctor Wayne Kenneth Ross, an expert in forensic
          pathology, performed the autopsy on the victim on
          July 14, 2015. The autopsy revealed three gunshot
          wounds to the left side of the chest, a gunshot
          wound to the right shoulder, and an abrasion/scrape
          around one of the knees. There was no indication
          that the victim grabbed the gun as there were no
          cuts, bruises, abrasions, etc. on the victim. Dr. Ross
          also described how the bullets entered the victim.
          The three gunshots to the chest were close range
          shots (i.e. the gun was touching the clothing). The
          shoulder shot occurred from two to three feet away.
          The BAC of the victim was .22.          William Henry
          Kimmick, III (“Investigator Kimmick”), a forensic
          investigator with the Harrisburg City Police,
          processed the crime scene.         Through him, the
          Commonwealth introduced Commonwealth’s Exhibits
          one through twenty which depicted the crime scene.
          Investigator Kimmick testified that when he
          processed the scene he found what appeared to be a
          .22 caliber bullet.     When a search warrant was
          conducted at [a]ppellant’s residence, some .22
          caliber ammunition was also found. A stipulation
          was entered in which the unspent bullets found at
          [a]ppellant’s residence were consistent (with respect
          to caliber, bullet type, configuration, and brass
          plating) as those found left at the scene.
          Investigator Kimmick also testified to the distance
          (280 feet) between [a]ppellant’s home at 1160 Berry
          Hill Street, Harrisburg, PA and where the victim was
          found at 450 Crescent Street, Harrisburg, PA.
          Finally, Investigator Kimmick testified that he
          received a paper from a neighbor, Ida Gaines, who
          said she saw the whole thing but did not want to be
          seen talking to police.


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          Ida Gaines, a neighbor who lives at 462 Crescent
          Street, testified that there was a fight between the
          victim and four other females ([appellant’s]
          daughters). One of the daughters, Aquaris [sic],
          yelled “I’ll go get my dad.”[Footnote 6] Ms. Gaines
          testified that the daughters left to go get their father
          and the victim was standing on a front porch.
          Ms. Gaines saw [a]ppellant pull a gun and shoot the
          victim three times. She further testified that the
          victim told [a]ppellant “You don’t have to do this”
          prior to the shots being fired. Also, prior to the
          shooting, the victim told [a]ppellant that he hit his
          daughter because the daughter spit on the victim.
          Ms. Gaines never saw the victim with a gun nor any
          weapons.[Footnote 7] Dwayne A. Simon[Footnote 8],
          a resident at 450 Crescent Street, also testified to the
          events that occurred. Mr. Simon saw one of the
          daughters spit on the victim, throw a drink on the
          victim, and then her [sic], along with her sisters,
          jump on the victim and star[t] hitting him. Mr. Simon
          testified that the victim had no weapon and that
          [a]ppellant just kept shooting despite the victim
          stating “I didn’t touch your daughter.” Mr. Simon
          also testified that while [the victim] fell backwards
          there was an additional shot.[Footnote 9]

                [Footnote 6] Acquaries        [sic]   is   a
                daughter to [a]ppellant.

                [Footnote 7] Ms. Gaines has a charge of
                false identification that is still pending.

                [Footnote 8] Mr. Simon is the victim’s
                cousin.

                [Footnote 9] Mr. Simon also testified that
                he gave a different statement to police
                than what he testified [to] because he
                wanted to get and kill [a]ppellant.

          Roderick McArthur, a resident at 452 Crescent
          Street, also testified to the interaction between
          Shayla ([a]ppellant’s daughter) and the victim.


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          Mr. McArthur testified that a drink was thrown in the
          victim’s face, someone spit in the victim’s face, and
          that the daughters ganged up on the victim.
          Mr. McArthur testified that the victim tried to walk
          away from the situation. Mr. McArthur described the
          shooting and noted that he did not see any weapons
          on the victim and that the victim was acting calm.
          The Commonwealth introduced the testimony of
          Kanishia Kirkland who also testified to the events of
          July, 2015. Ms. Kirkland testified that she along with
          [a]ppellant went to York, Pennsylvania immediately
          following the incident.        Detective Jason Paul,
          employed by the Harrisburg City Police, testified that
          [a]ppellant was located in Creedmoor, North Carolina
          and does not have a valid license to possess a
          firearm. Detective Paul also identified [a]ppellant.

          Shayla Walker, a daughter of [a]ppellant, testified
          for the defense. Shayla testified that the victim was
          touching her butt and thighs in a sexual manner.
          Shayla threw a drink in the victim’s face and the
          victim   punched      her    several   times.      On
          cross-examination, Shayla testified that no one ever
          called 911, they got in a car and fled. Additionally,
          Shayla never called police to tell them what
          happened.       Shantay Walker, a daughter of
          [a]ppellant, also testified that she went and got her
          father ([a]ppellant). She also testified that no one
          called 911 nor talked to the police. And that when
          Shayla and her father came around the corner, the
          victim and Tatiana ([a]ppellant’s daughter) were not
          together and [a]ppellant asked what was going on.
          Appellant also testified and indicated that he had no
          knowledge of who it was [that was messing with his
          daughters] or whether they had a weapon.
          [Appellant] also testified that it was the victim who
          lunged and tried to grab him. On cross-examination,
          [appellant] admitted to leaving the house with a gun
          and leaving the house without calling the police.
          Additionally, [appellant] admitted that he did not
          give a warning to the victim prior to shooting.




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Trial court opinion, 8/15/17 at 2-5 (citations to notes of testimony omitted;

some brackets in original).

      The record reflects that following appellant’s convictions, appellant

filed a post-sentence motion, which the trial court subsequently denied.

Appellant then filed a timely notice of appeal to this court. The trial court

ordered appellant to file a concise statement of errors complained of on

appeal   pursuant   to   Pa.R.A.P.   1925(b).      Appellant   timely   complied.

Thereafter, the trial court filed its Pa.R.A.P. 1925(a) opinion.

      Appellant raises the following issue for our review:

            Did not the [trial] court abuse its discretion by failing
            to grant [appellant] a new trial on the basis that the
            guilty verdict was against the weight of the evidence
            when the totality of the evidence as to the issues of
            self-defense, imperfect self-defense, and killing in
            the heat of passion was unreliable, contradictory,
            and incredible?

Appellant’s brief at 5 (capitalization omitted).

            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.




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Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations

omitted; emphasis omitted).

               The weight of the evidence is exclusively for the
               finder of fact who is free to believe all, part, or none
               of the evidence and to determine the credibility of
               the witnesses. An appellate court cannot substitute
               its judgment for that of the finder of fact. Thus, we
               may only reverse the . . . verdict if it is so contrary
               to the evidence as to shock one’s sense of justice.

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011).

          Here, appellant contends that “[a]lthough there were many disputed

circumstances at trial, it is reasonable to conclude that there was no dispute

regarding [certain aspects] of [appellant’s] state of mind and actions.”

(Appellant’s brief at 32.) Appellant then asks this court to “discount[] the

bias[ed] testimony of [appellant’s] best friend and cousin.”          (Id. at 33.)

Appellant further maintains that “the credibility of [certain Commonwealth

witnesses] was undermined by substantial, indisputable evidence of record”

and that “[m]ost of the Commonwealth witnesses gave inconsistent

statements to the police regarding the key issues in the case.” (Id. at 34.)

          In so doing, appellant invites this court to assess witness credibility

and reweigh the evidence.        “The jury, as fact-finder[, however,] had the

duty to determine the credibility of the testimony and evidence presented at

trial.”    Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2016).

(citation omitted).      Appellate courts cannot and do not substitute their

judgment for that of the fact-finder.       See id.   Here, a jury of appellant’s



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peers weighed the evidence and assessed the credibility of the witnesses

and determined that the Commonwealth’s evidence proved beyond a

reasonable doubt that appellant committed third-degree murder.            After

carefully reviewing the record, we conclude that the jury’s verdict was not so

contrary to the evidence so as to shock one’s sense of justice. Rather, our

review of the record supports our conclusion that the trial court properly

exercised its discretion in denying appellant’s weight of the evidence claim.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/10/2018




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