Opinion
J-S17023-17 No. 821 EDA 2016
05-17-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JEFFREY PALMER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered January 28, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0002288-2015 BEFORE: OLSON, STABILE, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.:
Appellant, Jeffrey Palmer, appeals from the January 28, 2016 judgment of sentence imposing life in prison without parole for first degree murder, and concurrent terms of ten to twenty years of incarceration for attempted murder, three to six years of incarceration for unlawful possession of a firearm, and one to two years of incarceration for possession of an instrument of crime. We affirm.
18 Pa.C.S.A. §§ 2502(a), 901, 6106, and 907, respectively. --------
The trial court's opinion sets forth the pertinent facts:
On July 19, 2014, residents of the 6000 block of North Beechwood Street held a block party. At around 11 p.m., while the party was winding down, Malik Hairston heard several men yelling, 'where gray tank top at?' Around the same, [sic] Octavious Thornton, also known as 'Ta,' wearing a gray tank top,
was outside his mother's house at [the] 6088 block of North Beechwood Street. While Thornton was moving tables and chairs from the party into the house, a group of men approached. One of the men said, 'let me holler at you,' in which Thornton replied, 'I don't know you from a can of paint.' Another male in the group asked Thornton, 'What's up? What's up?' Then a man in a red polo shirt advised Thornton, 'It's just a yes or no question.' As Thornton walked away and made his way into the house, the group of men grabbed him from the porch steps, and began punching him. More men soon gathered, and up to ten or twelve men punched Thornton and pulled him into the street. Thornton placed his back against a car and covered his body with his arms to protect himself from the barrage of punches.
Thornton's mother, sister (Daria), and Hairston, attempted to intervene. After Hairston struck one man, and pulled him off Thornton, the group of men attacked Hairston. Hairston grabbed a rake and swung it at some of the attacking men. After Hairston swung the rake, a voice among the attacking men yelled, 'Shoot that n*gger.' Immediately thereafter, gunshots rang out. To avoid being shot, Hairston ran into the house at [the] 6088 block of North Beechwood through the front door. He was the only person who fled into the house. After firing the shots, the shooter jumped into a gray vehicle and drove off.
Thornton told police that the shooter had a revolver, and described him as a black male, dark skin, 25 years old, wearing a red polo shirt, approximately 5' 6" to 5' 8", with a stocky build. Thornton's sister Daria also stated that the shooter wore a red shirt. She further testified that no one else involved in the fight had a red shirt on. Following the shooting, both Thornton and Hairston identified [Appellant] from a photographic array as the male in the red polo shirt.
Almost immediately following the shooting, at or around 11:20 p.m., Police Officer James Butler saw a silver vehicle speeding southbound on Ogontz Avenue, about six to eight blocks from the shooting on Beechwood. Officer Butler and Officer Mark Austin attempted to pursue the vehicle, but lost sight of it.
Not long after Officer Butler first spotted the speeding vehicle on Ogontz Avenue, a security guard at Albert Einstein Hospital—just a few blocks from Ogontz Avenue—heard tires
screeching and witnessed a gray vehicle speeding up the hospital's emergency entrance. After the vehicle appeared to hit a guardrail, the passenger side window lowered, and the vehicle backed up and drove off. When a security guard inspected the guardrail for damage, he saw a gun lying nearby in the grass.
Roughly a minute after losing sight of the vehicle on Ogontz Avenue, Offices Butler and Austin responded to Einstein Hospital for a report of a gunshot victim, later identified as Thomas Fields, who had just arrived. Fields was pronounced dead at 11:40 p.m. The cause of death was a gunshot wound to the neck and the manner of death was homicide. A bullet entered the right side, upper back, near the neck. It traveled through the neck, striking the cervical spine, and perforated the right vertebral arteries, which provide blood to the brain. The bullet exited the front of the neck.
Upon their arrival at the hospital, Officers Butler and Austin noticed the same vehicle that they had just observed speeding on Ogontz parked in front of the ER. The passenger door was ajar, and a large amount of blood was on the vehicle's interior. The officers secured the vehicle, believing that it was a crime scene. Blood was subsequently found on the vehicle's seat, armrest, floor, door panel, and console. The front passenger side wheel was also flat.
Officer Austin then entered the hospital to locate the driver of the silver/gray vehicle. In the ER lobby, he found [Appellant] exiting the bathroom. There, [Appellant] informed the officer that an altercation took place at a cookout and someone there was shot. The police later took [Appellant] to the Homicide Unit for questioning.
On July 20, 2014, [Appellant] gave a statement to police, in which he told detectives that he was present when a shooting occurred at Beechwood. He said that he saw a fight break out at a block party and then heard gunshots. He also said that after the gunshots, Fields, his friend, said to him that he could not breath. [Appellant] stated that Fields had asthma. He claimed that after he and Fields got into his car to drive to the hospital, Fields coughed up blood.
Police later recovered a security video from Einstein Hospital. On the night of the shooting, at approximately 11:25:28, the camera captured [Appellant's] vehicle driving up
to the hospital's emergency room ramp. At 11:26:14, the video showed [Appellant's] vehicle, both doors open, pulling up outside the ER. [Appellant] existed [sic] the vehicle wearing a red polo shirt. Roughly thirty seconds later, [Appellant] removed the shirt, and threw it over a guardrail past where his vehicle was parked. A few minutes later, [Appellant] retrieved the shirt and tossed it into the trunk of the vehicle.Trial Court Opinion, 4/18/16, at 2-5 (record citations omitted).
The police later recovered the gun that was lying near the hospital guardrail. The gun, a revolver, held two fired cartridge casing ("FCCs") and three live rounds—all of which were .38 caliber and of the same manufacture. A total of four ballistic pieces were recovered from the shooting scene at 6088 North Beechwood Street, including two copper fragments found on the property, a lead fragment in the outside wall near the doorframe, and a projectile in the front door, five inches south of the doorknob. Officer Raymond Andrejczak, of the Police Firearms Identification Unit, concluded to a reasonable degree of scientific certainty that both copper fragments, the projectile, and both FCCs in the gun were all fired in and from the subject revolver. The remaining piece (the lead fragment) was unsuitable for microscopic comparison, but was consistent with a 9 millimeter/.38 caliber projectile. The subject revolver was incapable of firing a 9 millimeter bullet.
On August 4, 2014, police arrested Appellant for the murder of Fields. After a January 28, 2016 trial, a jury found Appellant guilty of the aforementioned offenses. The trial court imposed sentence immediately. On January 29, 2016, Appellant filed a post-sentence motion challenging the weight and sufficiency of the evidence. The trial court denied that motion on February 11, 2016. This timely appeal followed. Appellant presents three questions for our review:
I. Did the trial court err, abuse its discretion, and unfairly prejudice [Appellant] when the court overruled an
objection and allowed the prosecutor to vouch for witnesses during closing argument?Appellant's Brief at 5.
II. Was the evidence sufficient as a matter of law to convict [Appellant] of murder of the first degree?
III. Was the verdict against the weight of the evidence?
Appellant first asserts that the trial court erred in overruling his objection to the prosecutor's alleged misconduct. Appellant argues that the prosecutor improperly vouched for the credibility of the investigating police officers.
It is well established that the prosecution may not inject a highly prejudicial personal opinion of [an] appellant's credibility into evidence, thereby clearly and improperly intruding upon the jury's exclusive function of evaluating the credibility of witnesses. However, as long as a prosecutor does not assert his personal opinions, he or she may, within reasonable limits, comment on the credibility of a Commonwealth witness. This is especially true when the credibility of the witness has been previously attacked by the defense. This stems from the general principle that the prosecutor is permitted to respond to the arguments of the defense and is free to present his or her case with logical force and vigor.Commonwealth v. Tedford , 960 A.2d 1, 31-32 (Pa. 2008).
Several witnesses who gave contemporaneous statements to the police testified at trial that the police coerced or fabricated their statements. During closing argument, defense counsel attacked the credibility of the testifying police officers. The prosecutor, during his closing argument, responded with sarcasm, saying that the alleged fabrications did not significantly advance the prosecution's case. The prosecutor also opined that officers with a combined 150 years of experience are unlikely to fabricate evidence. The prosecutor did not offer a personal opinion as to any witnesses' credibility. For the reasons explained on pages 5 to 8 of the trial court's April 18, 2016 opinion, we conclude that Appellant's argument lacks merit.
Next, Appellant challenges the weight and sufficiency of the evidence. As the trial court correctly noted, Appellant's Pa.R.A.P. 1925(b) statement contains only bald assertions that his convictions are against the weight and sufficiency of the evidence. Bald assertions are insufficient to preserve the issue for review. Commonwealth v. Reeves , 907 A.2d 1, 2 (Pa. Super. 2006), appeal denied, 919 A.2d 956 (Pa. 2007). For the reasons explained in the trial court's opinion, Appellant has waived his challenges to the weight and sufficiency of the evidence.
In summary, we have concluded that Appellant's first argument lacks merit, and the second and third arguments are waived. We therefore affirm the judgment of sentence. We direct that a copy of the trial court's opinion be filed along with this memorandum.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/17/2017
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