J-S77021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                      v.                       :
                                               :
                                               :
GLENN GRADY WALKER, III                        :
                                               :
                       Appellant               :   No. 494 MDA 2017

            Appeal from the Judgment of Sentence January 12, 2017
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0002550-2016


BEFORE:      BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:                           FILED FEBRUARY 23, 2018

        Glenn Grady Walker, III, appeals from the judgment of sentence,

entered in the Court of Common Pleas of Dauphin County, after he was

convicted, in a jury trial, of first-degree murder,1 possession of a firearm

without a license,2 and discharge of a firearm into an occupied structure.3

After careful review, we affirm.

        On December 15, 2015, Pennsylvania State Capitol Police Department

Sergeant Dave DeLellis was on patrol driving in the area of Third and Calder

Streets in Harrisburg, Pennsylvania. While on patrol, Sergeant DeLellis heard

between six and ten gunshots and observed several men firing handguns.

____________________________________________


1   18 Pa.C.S.A. § 2502(a).

2   18 Pa.C.S.A. § 6106.

3   18 Pa.C.S.A. § 2707.1.
____________________________________
* Former Justice specially assigned to the Superior Court.
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Sergeant DeLellis pursued the men, one of whom he subsequently identified

as Walker, but he was unable to apprehend any of the shooters.           Video

evidence from security cameras at a bar located at the corner of Third and

Calder Streets showed Walker and a friend brandishing firearms; Walker’s

father, Glenn Walker, Jr., was also present at the scene.         The shooting

stemmed from an incident involving Walker, Jr. and an unknown fourth male

who allegedly attacked him; Walker purportedly fired at the alleged attacker

in retaliation. Police collected several items from the scene of the December

shooting, including two different .45 cartridges and a projectile.4

       Approximately 3½ months later, on March 26, 2016, John Carter and

his fiancée, Kristian Cammack, were driving through Harrisburg with his two

children. Cammack was driving in the area of Woodbine and Green Streets

when she and Carter noticed a group of men staring at them and their vehicle;

they did not recognize the men. Shortly thereafter, Cammack drove into a

convenience store parking lot and briefly parked. Carter exited the vehicle

and directed Cammack to drive around the block while he finished smoking a

blunt and confronted the men who had been staring at the family.

       One of the men in the group, Taj Abdullah, an associate or friend of

Walker, was seen on surveillance video with Walker and Shawn Jones outside

of Abdullah’s home on the day of the shooting. After Cammack drove away,

____________________________________________


4 The subsequent investigation was carried out by the Harrisburg Police
Department, not the Pennsylvania State Capitol Police Department force on
which Sergeant DeLellis served.

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Carter approached the three men and an altercation erupted between Jones,

Abdullah, Walker and Carter. Carter, outnumbered, fled on Woodbine Street;

Jones and Walker pursued him on foot. Jones and Walker, during their pursuit,

produced firearms and shot at Carter as he fled.          Walker, specifically,

discharged two rounds in Carter’s direction.     One of the projectiles struck

Carter in the back and wounded him fatally.

      Meanwhile, Cammack, per Carter’s instructions, drove around the block

with Carter’s children, but upon return, could not find Carter. She then drove

up Woodbine Street, after which she discovered Carter lying on the ground

fatally wounded from a gunshot to the back.           During the subsequent

investigation, Police recovered shell casings from the scene of the March

shooting as well as a gold “grill” which, when tested, carried traces of Jones’

DNA. Police also recovered a projectile from Carter’s corpse, but never

recovered the firearm used in the shooting. Police submitted the recovered

shell casings and projectile for ballistics testing and they were found to match

ballistics evidence recovered from the December shooting.

      Following trial, a jury found Walker guilty of the foregoing charges. The

trial court sentenced Walker to life in prison without parole. Walker filed a

timely post-sentence motion challenging the weight of the evidence on

January 23, 2017, which the trial court denied by order dated March 7, 2017.

On March 15, 2017, Walker filed a timely notice of appeal. Both Walker and

the trial court have complied with Pa.R.A.P. 1925. Walker raises the following

issues on appeal:

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      1. Did not the court err in permitting the Commonwealth to
      introduce   prior   bad-fact-evidence      detailing   [Walker’s]
      involvement in an unrelated shooting incident that occurred three
      months prior to the events that were the subject matter of the
      trial?

      2. Did not the court err in denying [Walker’s] objection to the
      Commonwealth’s ballistics expert’s stating that he can, to a
      “scientific certainty,” provide testimony that certain items of
      ballistic evidence came from the same gun?

      3. Did not the lower court abuse its discretion by failing to grant
      [Walker] 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 specific intent to kill and imperfect
      self-defense was unreliable, contradictory, and incredible?

Brief of Appellant, at 5.

      First, Walker argues that the trial court should not have allowed the

Commonwealth to present surveillance video evidence of the December

shooting shown at his jury trial. Walker, Jr. had previously identified him as

a participant in the December shooting, and the Commonwealth argued the

video was necessary to identify the firearm and to show Walker previously

possessed it. Our standard of review for admission of evidence is well settled:

      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. Admissibility depends on relevance
      and probative value. Evidence is relevant if it logically tends to
      establish a material fact in the case, tends to make a fact at issue
      more or less probable or supports a reasonable inference or
      presumption regarding a material fact.

Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super. 2006)

(citation omitted).




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     The trial court admitted the video evidence pursuant to Pa.R.E.

404(b)(1) and (2). Pa.R.E. 404(b) provides as follows:

     (b) Crimes, Wrongs or Other Acts.

     (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
     not admissible to prove a person’s character in order to show that
     on a particular occasion the person acted in accordance with the
     character.

     (2) Permitted Uses. This evidence may be admissible for
     another purpose, such as proving motive, opportunity,
     intent, preparation, plan, knowledge, identity, absence of
     mistake, or lack of accident. In a criminal case this
     evidence is admissible only if the probative value of the
     evidence outweighs its potential for unfair prejudice.

     (3) Notice in a Criminal Case. In a criminal case the prosecutor
     must provide reasonable notice in advance of trial, or during trial
     if the court excuses pretrial notice on good cause shown, of the
     general nature of any such evidence the prosecutor intends to
     introduce at trial.

Pa.R.E. 404(b) (emphasis added).

     [E]vidence of other crimes is admissible to demonstrate (1)
     motive; (2) intent; (3) absence of mistake or accident; (4) a
     common scheme, plan or design embracing the commission of two
     or more crimes so related to each other that proof of one tends to
     prove the others; or (5) the identity of the person charged
     with the commission of the crime on trial. Additionally,
     evidence of other crimes may be admitted where such evidence is
     part of the history of the case and forms part of the natural
     development of the facts.

Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa. Super. 2010), quoting

Commonwealth v. Collins, 703 A.2d 418, 422-23 (Pa. 1997) (emphasis

added) (brackets omitted).




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      The Commonwealth sought to present the video to (1) identify the

firearm Walker used in the instant case, and (2) prove that Walker possessed

the firearm at an earlier date. The Commonwealth’s video depicts Walker exit

a bar on December 15, 2015, approximately 3½ months before Carter was

murdered, and discharging a firearm. Additionally, ballistics testing matched

the tool markings on the cartridge cases recovered from the scenes of the

December 15, 2015 shooting and the March 26, 2016 shooting, indicating

Walker discharged the same gun in each instance. However, no witness was

available to testify that Walker was previously in possession of the murder

weapon on December 15, 2015. The trial court, taking all of the foregoing

into consideration, allowed the Commonwealth to show the video to the jury

on the narrow issue of identity only. We discern no abuse of discretion by the

trial court in allowing the Commonwealth to present video evidence of Walker

brandishing and discharging a firearm to corroborate his identity and show

Walker previously possessed a firearm. Dozzo, supra.

      Walker next claims that the trial court erred in denying his objection to

the Commonwealth ballistics expert’s testimony regarding the degree of

scientific certainty of his findings. Expert testimony is admissible if it concerns

a subject beyond the knowledge, information or skill possessed by the

ordinary juror, as phenomena and situations that are matters of common

knowledge may not be the subject of expert testimony. Pa.R.E. 702.

      Our standard of review in cases involving the admission of expert
      testimony is broad: Generally speaking, the admission of expert
      testimony is a matter left largely to the discretion of the trial court,

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      and its rulings thereon will not be reversed absent an abuse of
      discretion. An expert’s testimony is admissible when it is based
      on facts of record and will not cause confusion or prejudice.

Commonwealth v. Watson, 954 A.2d 174, 176 (Pa. Super. 2008).

      At trial, the Commonwealth proffered the testimony of Pennsylvania

State Trooper Todd Neumyer. Trooper Neumyer is a firearm and toolmark

examiner with the Harrisburg Regional Crime Laboratory. At the conclusion

of the Commonwealth’s direct examination of Trooper Neumyer, the following

exchange occurred:

      COMMONWEALTH: And those conclusions that you’ve shared here
      with this jury, are you doing so within a reasonable degree of
      certainty within your field?

      TROOPER NEUMYER: Yes, both scientific –

      COUNSEL FOR WALKER: Objection, Your Honor. In regards to
      the bullets, I don’t think an expert in firearm and tool[]mark can
      give an opinion to a reasonable degree of any kind of certainty.
      This is an opinion that he makes by observing the different
      markings and – microscopic markings. I just don’t know that
      that’s an acceptable degree of certainty for this type of expert.

      TRIAL COURT: Overruled.

N.T. Jury Trial, 1/10/17, at 474-75 (emphasis added).

      Trooper Neumyer went on to state that he could render an expert

opinion within both scientific and professional degrees of certainty. Walker

argues that Trooper Neumyer’s testimony that an unknown Glock firearm was

the source of ejected shell casings and discharged bullets implicates the

validity of whether an expert can present to a degree of scientific certainty

ballistics-match testimony. Specifically, Walker cites to the findings of a study



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entitled “Firearms Identification and the Use of Ballistics Evidence,” which

asserts that the validity of ballistics-match testimony has not yet been fully

scientifically demonstrated. Brief of Appellant, at 29-30. Walker also cites to

United States v. Green, 405 F.Supp.2d 104, 123 (D. Mass. 2005), wherein

the Government’s ballistics expert was permitted to identify toolmarks left on

shell casings, but was not allowed to testify as to his conclusions that the

match he had found excluded all other guns as the source of said shell casings.

Id.

      Instantly, Walker asks us to reassess the general admissibility of

forensic firearms evidence.   We decline to do so.    In Commonwealth v.

Whitacre, 878 A.2d 96 (Pa. Super. 2005), this Court held that expert ballistic

matching evidence obtained by a comparison microscope, as in the instant

matter, is “generally accepted by the scientific community consisting of

firearms experts.”   Id. at 101 (“The comparison microscope examination

method has been in use since the 1930’s and is an accepted methodology by

the Association of Firearms and Toolmark Examiners.”).              See also

Commonwealth v. Vandivner, 962 A.2d 1170 (Pa. 2009) (expert in field of

firearm and toolmark examination determined that bullet recovered from

victim’s brain was fired from handgun found in defendant’s possession at time

of his apprehension). Accordingly, we discern no abuse of discretion by the

trial court in overruling Walker’s objection to Trooper Neumyer’s testimony.

Watson, supra.




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        Lastly, Walker claims that his conviction was contrary to the weight of

the evidence. Specifically, Walker avers that (1) contradictions of witnesses’

testimony were irreconcilable, (2) substantial indisputable evidence existed to

undermine the credibility of the witnesses, and (3) the jury should have found

him guilty of the lesser charge of voluntary manslaughter5 because he was

acting in “unreasonable belief self-defense.”6 His claim is meritless.
____________________________________________


5   18 Pa.C.S.A. § 2503(b).

6   Voluntary manslaughter pursuant to section 2503(b) is defined as:

        (b) Unreasonable belief killing justifiable.–A person who
        intentionally kills an individual commits voluntary manslaughter if
        at the time of the killing he believes the circumstances to be such
        that, if they existed, would justify the killing under Chapter 5 of
        this title, but his belief is unreasonable.

        18 Pa.C.S.A. § 2503(b).

“The elements necessary to establish reasonable belief manslaughter, which
is sometimes loosely referred to as ‘imperfect self-defense’ require proof of an
‘unreasonably belief rather than a reasonable belief that deadly force was
required to save the actor’s life.’” Commonwealth v. Ventura, 975 A.2d
1128, 1143 (Pa. Super. 2009) (citation omitted). “All other principles of
justification under 18 Pa.C.S.[A.] § 505 must still be met in order to establish
unreasonable belief voluntary manslaughter.” Id.

Section 505 sets for the elements of self-defense:

        § 505. Use of force in self protection

        (a) Use of force justifiable for protection of the person.–The
        use of force upon or toward another person is justifiable when the
        actor believes that such force is immediately necessary for the
        purpose of protecting himself against the use of unlawful force by
        such other person on the present occasion.

18 Pa.C.S.A. § 505(a).

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      The essence of appellate review for a weight claim appears to lie
      in ensuring that the trial court’s decision has record support.
      Where the record adequately supports the trial court, the trial
      court has acted within the limits of its discretion.

      A motion for a new trial based on a claim that the verdict is against
      the weight of the evidence is addressed to the discretion of the
      trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the
      same facts would have arrived at a different conclusion. Rather,
      the role of the trial judge is to determine that notwithstanding all
      the facts, certain facts are so clearly of greater weight that to
      ignore them or to give them equal weight with all the facts is to
      deny justice.

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of review
      applied by the trial court. 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.

Commonwealth v. Mucci, 413 A.3d 399, 410-11 (Pa. Super. 2011)

(emphasis added), quoting Commonwealth v. Clay, 64 A.3d 1049, 1054-55

(Pa. 2013). A “trial court’s denial of a motion for a new trial based on a weight

of the evidence claim is the least assailable of its rulings.” Commonwealth

v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).

      The trial court provided the jury with instructions for the charges of first-

degree murder and voluntary manslaughter. “A criminal homicide constitutes

murder of the first degree when it is committed by an intentional killing.” 18

Pa.C.S.A. § 2502(a).     To obtain a conviction for first-degree murder, the

Commonwealth must demonstrate that a human being was unlawfully killed,

that the person accused did the killing, and that the killing was done with

deliberation.   Commonwealth v. Marrero, 687 A.2d 1102 (Pa. 1996).

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Additionally, specific intent to kill, as an element of first-degree murder, can

be established through circumstantial evidence such as the use of a deadly

weapon on a vital part of the victim’s body. Commonwealth v. Diamond,

83 A.3d 119 (Pa. Super. 2013).

      In finding Walker guilty of first-degree murder beyond a reasonable

doubt, the jury found the Commonwealth’s witnesses to be credible and

reconciled   any    discrepancies    in   the   witnesses’   testimony.       See

Commonwealth v. Yocum, 418 A.2d 534, 536 (Pa. Super. 1980) (citation

omitted) (“The function of a jury is to reconcile conflicting testimony; it is only

when the testimony is so contradictory on the basic issues as to make any

verdict based thereon pure conjecture that the jury should not be permitted

to consider it.”); see also Commonwealth v. Battle, 433 A.2d 496, 498

(Pa. Super. 1981) (determination of credibility of witnesses is within sole

province of jury). Moreover, it was well within the purview of the jury to find

Walker guilty of first-degree murder where the evidence showed he used a

deadly weapon to shoot Carter in the torso. Diamond, supra.

      The trial court instructed the jury on first-degree murder and voluntary

manslaughter, and the jury nonetheless found Walker guilty of the latter. We

discern no abuse of discretion in the trial court’s conclusion that Walker’s

convictions did not shock one’s sense of justice. Mucci, supra. Accordingly,

we affirm Walker’s judgment of sentence.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2018




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