J-S22005-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC ALAN KING                             :
                                               :
                       Appellant               :   No. 993 MDA 2019

          Appeal from the Judgment of Sentence Entered April 16, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0000700-2017


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.:                                  FILED JUNE 12, 2020

        Appellant, Eric Alan King, appeals from the judgment of sentence

entered on April 16, 2019, as made final by the denial of his post-sentence

motion on June 14, 2019. We affirm.

        The trial court thoroughly summarized the underlying facts and

procedural posture of this case:

          On or about December 29, 2016, [Appellant] was charged
          with one [] count each of: (1) criminal homicide; (2)
          possession of firearm prohibited; (3) firearms not to be
          carried without a license; (4) recklessly endangering another
          person; (5) receiving stolen property; and (6) aggravated
          assault.[1]   The charge of aggravated assault was
          subsequently withdrawn by the Commonwealth. A jury trial
          was held from February 25, 2019 through March 5, 2019.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2501(a), 6105(a)(1), 6106(a)(1), 2705, 3925(a), and
2702(a)(4), respectively.
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                                      ...

       The testimony from the jury trial revealed the following
       facts[.] At approximately 12:40 a.m. on December 29, 2016,
       [police officers from] the City of Harrisburg Police
       Department were dispatched to OD’s Plantation, a local bar,
       in the area of 16th and Sycamore Streets for a call of shots
       fired. Officer Garrett Miller was one of the first patrol officers
       on scene. Upon arrival, he observed a male suffering from
       gunshot wounds on the Sycamore Street side of the bar. The
       male informed Officer Garrett that he was shot inside the bar,
       as well as that he was shot at outside the bar, but did not
       think he was struck again while outside. Officer Garrett also
       noted that the male did not have any type of firearm on his
       person. . . .

       Officer Stephen Ruff was also one of the first patrol officers
       to arrive on scene, and established a crime scene perimeter.
       He observed a male lying east of the bar on Sycamore Street,
       as well as a vehicle parked on the southeast corner
       immediately in front of the bar with its windows shot out.

       Investigator Duane Pyles arrived on scene at approximately
       12:42 a.m. and assisted in securing the crime scene. When
       he learned that the victim was in the back of an ambulance,
       he went to photograph the victim’s injuries. Thereafter,
       Officer Ruff was directed to ride with the victim in the
       ambulance on the way to the hospital. Once they arrived at
       the hospital, the victim was immediately taken into triage and
       his clothing removed. Officer Ruff collected the victim’s
       clothing and noted that a firearm was not one of the items
       collected from the hospital.

       After the victim was transported to the hospital, the
       remaining officers on scene began to collect evidence.
       Investigator Pyles spoke with the owner of OD’s Planation
       who informed him that the bar is equipped with a surveillance
       system - cameras one [] through six [] cover the interior of
       the bar, and cameras ten [] through [13] cover the exterior
       and vestibule area of the bar. The owner was unsure how to
       use the system; however, [he] permitted Investigator Pyles
       to use it to review the video footage. A review of the
       surveillance footage showed that the entire incident, both

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       inside and outside of the bar, was captured on video;
       therefore Investigator Pyles downloaded video from all
       cameras for the time period of 12:30 to 12:55 a.m. . . .

       OD’s Plantation was a bar located on the corner of 16th and
       Sycamore Streets. It has a front door that exits directly onto
       the southeast corner of the intersection at 16th and
       Sycamore Streets. The front door opens into a vestibule area
       with a few steps to another door. Once inside, the bar is
       directly in front of the door, and beyond the bar area are two
       [] pool tables. Beyond the pool tables is a rear door that exits
       onto a ramp that leads down to Cascade Alley.

       The surveillance video shows the following: At 00:35:26,[fn.15]
       [Appellant] enters the bar with two [] individuals, who were
       subsequently identified as Shanelle Baltimore (hereinafter
       “Ms. Baltimore”) and Hasheem Jacob (hereinafter “Mr.
       Jacob”).

       Ms. Baltimore and Mr. Jacob proceed to the bar area while
       [Appellant] remains near the pool table closest to the rear
       exit. While in the bar area, it appears the victim, Mr. Jacob,
       and Ms. Baltimore have a casual interaction. Mr. Jacob and
       Ms. Baltimore then walk back toward [Appellant] waiting near
       the pool tables. After briefly conversing, [Appellant] walks
       toward the bar, stopping to say hello to a friend first, then
       approaches the victim.

          [fn.15] The video is time-stamped in military time. . . .

       The victim, [Appellant], and Mr. Jacob engage in a
       conversation by the bar area. [Appellant] then walks away
       leaving the victim and Mr. Jacob engaged in conversation.
       The victim ends the conversation and returns to the bar when
       [Appellant] re-engages him in conversation.               The
       conversation again ends, the victim walks away enjoying his
       drink, and [Appellant] converses with other patrons sitting at
       the bar. The [trial] court notes that the video shows the
       victim with one or both of his hands inside his jacket pocket
       throughout this entire interaction.

       At or around 00:39:22, [Appellant] is observed walking back
       toward the pool tables with Ms. Baltimore and Mr. Jacob while
       the victim remained at the bar. [Appellant] is with a group

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       of people near the pool table closest to the rear exit and
       watches the victim as he walks toward the pool table area.
       [Appellant] then leans against the pool table closest to the
       rear exit and appears to remove something from his
       waistband.     When [the video was converted to still
       photographs, Appellant] is observed to pull a firearm from
       the right side of his waistband, and then return it to his
       waistband    when     the   bartender    approaches     him.
       Simultaneously, the victim is observed on [the surveillance
       video] to be walking around and talking to someone on his
       cell phone.

       At or around 00:40:35, the victim is observed returning to
       the pool table closest to the bar where he engaged in
       conversation with other patrons with his back to [Appellant]
       at times. Mr. Jacob is pacing and appears to be keeping an
       eye on the victim and [Appellant] is leaning on the pool table
       closest to the rear exit. . . .

       At 00:40:50 . . . , Mr. Jacob appears to say something to
       [Appellant] while looking toward the victim. [Appellant]
       takes a step back, turns toward the victim then turns back
       and leans against the pool table with his right hand near his
       waistband. . . .

       At 00:41:06 . . . , Mr. Jacob walks toward [Appellant],
       [Appellant] uses his right hand to pull a firearm from his
       waistband, points his firearm at the victim and pulls the
       trigger. However, it appears [Appellant] forgot to load a
       bullet into the chamber. [Appellant] cocks the firearm, points
       it at the victim, and shoots. The victim appears to be
       unaware that [Appellant] had pointed a firearm at him, does
       not reach for a weapon, and immediately flees toward the
       front door upon being hit. At 00:41:26 . . . , the victim is
       observed at the front door with blood on his right pant leg.

       [Appellant] watches the victim run away for a beat, then
       calmly turns and casually walks out of the rear exit with the
       firearm in his right hand. [Appellant] exits onto Cascade Alley
       and makes a right toward 16th Street. He gets into the
       passenger side of a vehicle driven by Mr. Jacob and fires two
       [] shots toward the corner of 16th and Sycamore Streets.
       The vehicle travels north on 16th Street and makes a left onto
       Sycamore Street. As the vehicle turns left, [Appellant] points

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        his firearm out of the passenger side window and fires two []
        additional shots in the direction of where the victim ran.

        Dr. Wayne Ross . . . is a forensic pathologist employed by the
        Dauphin County Coroner’s office. The victim suffered a total
        of three [] gunshot wounds - the right arm, beneath the lip,
        and left hip. The right arm had a gunshot wound to the right
        forearm, near the right wrist area. Dr. Ross classified it [as]
        a “through-and-through” gunshot wound, meaning that the
        bullet went clean through the flesh and did not fracture any
        bones nor lodge in the body. This particular wound would
        cause a significant amount of bleeding. As for the gunshot
        wound on the face, Dr. Ross testified that it went "through
        the right chin, right lip, and entered on the right side, went
        through the lip, and came out of the lip.”

        Lastly, the victim had a gunshot wound on his left hip. Dr.
        Ross testified that the bullet went through the victim’s left
        hip, into his abdomen, through his intestines, and exited
        through the front of the abdomen on the right side. This
        wound would cause blood to immediately pour out through
        the holes where the bullet entered and exited the victim’s
        body. Due to the amount of blood loss, the victim would have
        suffered hemorrhagic shock. Additionally, bacteria would
        begin flowing into the abdomen, through the system, and
        cause an infection or septic shock. Dr. Ross testified that any
        one of the three [] gunshot wounds could have been the
        deadly shot.

Trial Court Opinion, 9/20/19, at 1-8 (citations and some footnotes and

capitalization omitted).

      The jury found Appellant guilty of first-degree murder, possession of a

firearm by a prohibited person, firearms not to be carried without a license,

and recklessly endangering another person; the jury found Appellant not

guilty of receiving stolen property. N.T. Trial, 3/5/19, at 1046-1047. On April

16, 2019, the trial court sentenced Appellant to serve a term of life in prison

for his first-degree murder conviction and to serve a consecutive term of five


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to ten years in prison for his possession of a firearm by a prohibited person

conviction. N.T. Sentencing, 4/16/19, at 1-2.

      The trial court denied Appellant’s post-sentence motion on June 14,

2019 and Appellant filed a timely notice of appeal. Appellant raises four claims

on appeal:

        1. Whether the trial court had subject matter jurisdiction to
           try, convict[,] and sentence [Appellant]?

        2. Whether the search warrant of [Appellant’s] phone lacks
           probable cause and is overbroad in violation of the 4th
           Amendment of the United States Constitution and Article
           1, Section 8 of the Pennsylvania Constitution?

        3. Whether the trial court abused its discretion               by
           [permitting] improper demonstrative evidence?

        4. Whether the trial court abused its discretion by allowing
           the Commonwealth to present pictures of [Appellant] with
           a gun to impeach [Appellant’s] expert witness?

Appellant’s Brief at 5-6 (some capitalization omitted).

      We have reviewed the briefs of the parties, the relevant law, the certified

record, the notes of testimony, and the opinion of the able trial court judge,

the Honorable William T. Tully. We conclude that Appellant is not entitled to

relief in this case, for the reasons expressed in Judge Tully’s September 20,

2019 opinion. Therefore, we affirm on the basis of Judge Tully’s thorough

opinion and adopt it as our own. In any future filing with this or any other

court addressing this ruling, the filing party shall attach a copy of Judge Tully’s

September 20, 2019 opinion.

      Judgment of sentence affirmed. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/12/2020




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