J-S43011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JOSHUA JEROME WALKER

                            Appellant                     No. 1425 WDA 2016


        Appeal from the Judgment of Sentence Entered August 24, 2016
                  In the Court of Common Pleas of Erie County
               Criminal Division at No: CP-25-CR-0000691-2015


BEFORE: STABILE, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                          FILED SEPTEMBER 18, 2017

        Appellant Joshua Jerome Walker appeals from the August 24, 2016

judgment of sentence entered in the Court of Common Pleas of Erie County

(“trial court”), following his jury convictions for third-degree murder and

aggravated assault. Upon review, we affirm.

        On October 6, 2014, the Erie Police Department charged Appellant

with, among other things, criminal homicide and aggravated assault in

connection with the killing of David McLendon, who was discovered in a

prone position on a sidewalk in Erie.          This case proceeded to a jury trial,

following which Appellant was convicted of the above-mentioned crimes. On

August 24, 2016, the trial court sentenced Appellant to 240 to 480 months’

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S43011-17



imprisonment for his conviction for third-degree murder.1 Appellant did not

file any post-sentence motions.                On September 19, 2016, Appellant

appealed to this Court. At the trial court’s behest, Appellant filed a Pa.R.A.P.

1925(b) statement of errors complained of on appeal. In response, the trial

court issued a Pa.R.A.P. 1925(a) opinion.

       On appeal, Appellant raises two issues for our review:

       [I.] Did the trial court commit an abuse of discretion or error of
       law when it failed to give a voluntary manslaughter instruction to
       the jury?

       [II.] Did the trial court err when it permitted the prosecutor to
       argue in closing that Appellant had money in his possession, and
       money was a motive for the killing, when the court granted a
       judgment of acquittal as to robbery and theft when the
       Commonwealth rested its case?

Appellant’s Brief at 6.

       After careful review of the record and the relevant case law, we

conclude that the trial court accurately and thoroughly addressed Appellant’s

claims.   See Trial Court Opinion, 12/13/16, at 1-4.            In so doing, the trial

court correctly concluded that Appellant failed to preserve his claims for

appeal.    Specifically, he did not object to the trial court’s failure to give a

charge    of   voluntary     manslaughter,2       or   the   Commonwealth’s    closing

____________________________________________


1
 The trial court did not impose an additional penalty for aggravated assault
as it merged with third-degree murder.
2
  Our review of the trial transcript reveals that Appellant not only failed to
request a charge of voluntary manslaughter at trial, but that his trial counsel
specifically asked the trial court not to “include that instruction.” N.T. Trial,
5/27/16, at 2-3.



                                           -2-
J-S43011-17



argument.3 Accordingly, we affirm Appellant’s August 24, 2016 judgment of

sentence.    We further direct that a copy of the trial court’s December 13,

2016 opinion be attached to any future filings in this case.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




____________________________________________


3
   The record reveals that Appellant waived a challenge to the
Commonwealth’s closing argument by failing to make a timely objection, or
requesting a curative instruction. See Commonwealth v. May, 31 A.3d
668, 673 (Pa. 2011) (citing Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”)); see
also Pa.R.E. 103(a) (party may claim error in admission of evidence only
when party makes a timely objection); Pa.R.Crim.P. 605(B) (“When an event
prejudicial to the defendant occurs during trial only the defendant may move
for a mistrial, the motion shall be made when the event is disclosed.
Otherwise, the trial judge may declare a mistrial only for reasons of manifest
necessity.”); Commonwealth v. Szakal, 50 A.3d 210, 219 (Pa. Super.
2012).



                                           -3-
Circulated 08/28/2017 03:16 PM
