The opinion
J-S02007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS BROWN :
:
Appellant : No. 243 EDA 2017
Appeal from the Judgment of Sentence January 3, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004513-2015
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY BOWES, J.: FILED MAY 21, 2018
Marcus Brown appeals from the judgment of sentence of life
imprisonment imposed following his conviction of first-degree murder and
related firearms charges. We affirm.
The trial court set forth the relevant facts underlying this appeal as
follows:
On September 20, 2014, the Twisters Motorcycle Club
hosted its annual anniversary ceremony at the Nifiji Event Hall at
1432 Chew Street in northern Philadelphia. Between 500 and
1,000 people affiliated with several Philadelphia motorcycle clubs
attended the event, including the decedent, Desmond “Little G”
Davis, a member of the Twisters, [Appellant], Marcus “Taz”
Brown, a member of the rival Byrd Riders Motorcycle Club, and
his co-defendant, Stanley “Stizz” Newell, another Byrd Rider.
At approximately midnight on September 21, 2014, an
argument between “Gun,” the chapter president of the Byrd
Riders, and the decedent commenced outside the event hall on
Chew Street, drawing the attention of [Appellant] and Newell.
As the argument continued, . . . Newell approached the decedent
* Retired Senior Judge Assigned to the Superior Court.
J-S02007-18
and argued with him about a gun. During this argument,
[Appellant] approached the decedent from behind, drew a Colt
.45 caliber pistol, and pointed it at his face.
Approximately ten feet away from [Appellant] and
decedent, Michael “Country” Baker, a member of the Twisters,
drew his pistol, raised it above his head, and fired one shot. The
gunfire caused the crowd of over seventy-five attendees
standing outside the event hall to panic and scatter. Several
armed attendees drew their weapons and proceeded to fire at
each other. The decedent . . . ran down Chew Street, turned on
Park Avenue, and ran away from the Event Hall. [Appellant]
gave chase, followed the decedent onto Park Avenue, aimed his
weapon toward the decedent’s back, and fired at least four
shots, killing him.
Deputy Chief Medical Examiner Dr. Albert Chu, an expert
in forensic pathology, reviewed [the decedent’s] autopsy report
and testified that [he] suffered four gunshot wounds, including
non-fatal, penetrating wounds to his left shoulder and left
buttock, and fatal, penetrating wounds to his lower back and
right buttock. The projectiles causing the decedent’s lower back
and right buttock wounds travelled through several vital organs,
including the heart, small intestine, and liver. The decedent
suffered additional abrasions to his right hip, face, elbow, and
left knee, consistent with terminal collapse injury. To a
reasonable degree of medical certainty, Dr. Chu concluded that
the cause of death was homicide.
Officers of the Philadelphia police crime scene unit
investigated the area surrounding the Nifiji Event Center and
recovered twenty-five fired cartridge casings (FCCs), including
nine .45 caliber FCCs, seven projectiles or fragments, and four
handguns, including a .45 caliber Springfield XDS pistol. Of the
nine .45 caliber FCCs discovered at the crime scene, five
matched the recovered Springfield XDS pistol. The four
remaining .45 caliber FCCs matched each other but did not
match the recovered Springfield, and instead were fired from an
unidentified pistol. The four .45 caliber FCCs matching the
unidentified pistol were recovered from the intersection of Chew
Street and Park Avenue, approximately one-quarter of a block
from where the decedent’s body was discovered.
-2-
J-S02007-18
Officer Ronald Weitman, an expert in firearms and
ballistics, reviewed all of the ballistics evidence recovered from
the crime scene and the decedent’s body. Officer Weitman
examined four projectiles recovered from the decedent and
determined that they were .45 caliber. After comparing the
projectiles, Officer Weitman concluded that they were fired from
the same firearm, but that they were not fired from the
Springfield XDS recovered from the crime scene.
In the aftermath of the shooting, Philadelphia Police
interviewed Tyrell Ginyard, a member of the Twisters motorcycle
club present at the shooting. Ginyard told police and later
testified that he was approximately a foot away from the
decedent . . . when [Appellant] drew his .45 caliber pistol and
pointed it at the decedent’s head. [Mr.] Ginyard further
observed [Appellant] chase [Mr. Ginyard] and the decedent
around the corner of Chew Street and Park Avenue, after which
[the decedent] was struck by gunfire and collapsed on the
sidewalk.
Police further interviewed Rodney Gregory, a Byrd Rider,
who told police and later testified that he observed [Appellant]
brandish a gun the night of the murder. Gregory identified both
[Appellant] and his co-defendant[, Newell,] via photo array, and
when shown surveillance video of the incident, Gregory identified
[Appellant] as holding a pistol in his right hand.
Detective Frank Mullen, an expert in video recovery,
obtained video surveillance footage from three angles at the
Nifiji Event Hall and a private residence at 5626 Park Avenue.
Video recovered from the Nifiji Event Hall showed [Appellant]
point a gun at the decedent[’s] head just under the building’s
awning on Chew Street. A different camera angle from this
location showed the decedent . . . attempt to escape the chaos
outside the event hall by running down Chew Street and turning
onto Park Avenue. That same camera showed [Appellant] fire at
the decedent.
Trial Court Opinion, 3/16/17, at 2-5 (citations, footnote, and some
capitalization omitted).
-3-
J-S02007-18
Appellant and Newell were arrested and charged with murder and
related firearms offenses. On November 15, 2016, a jury rejected
Appellant’s claim of self-defense, and convicted him of first-degree murder
and related firearms offenses.1 On January 3, 2017, the trial court
sentenced Appellant to life in prison without the possibility of parole on the
murder charge, and a concurrent aggregate sentence of two to four years on
the firearms violations. The trial court denied Appellant’s post-sentence
motion raising challenges to the weight and sufficiency of the evidence.
Appellant filed a timely notice of appeal, and a court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. The trial
court filed a Pa.R.A.P. 1925(a) opinion. This matter is now ready for our
review.
Appellant raises the following claims:
A. Was the evidence presented insufficient to sustain a verdict of
first[-]degree murder?
B. Was the weight of the evidence presented insufficient to
support the Appellant’s conviction?
Appellant’s brief at 6 (capitalization omitted).
In his first claim, Appellant challenges the sufficiency of the evidence
supporting his conviction of first-degree murder. Our scope and standard of
review of a sufficiency claim is well-settled:
____________________________________________
1 The charges against Appellant and Newell were consolidated for trial. The
jury found Newell guilty of third-degree murder in Baker’s shooting death.
-4-
J-S02007-18
[O]ur standard of review of sufficiency claims requires that
we evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant’s innocence. Any doubt about
the defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa.Super. 2013) (citations
and quotation marks omitted).
In order to sustain a conviction for first-degree murder, the
Commonwealth must prove that: (1) a person was unlawfully killed; (2) the
accused is responsible for the killing; and (3) the accused acted with malice
and specific intent to kill. See Commonwealth v. Hitcho, 123 A.3d 731,
746 (Pa. 2015); 18 Pa.C.S. § 2502(a). Under the Crimes Code, murder in
the first degree requires an “intentional killing,” which is defined as a “willful,
deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). The use of a
deadly weapon on a vital part of the body is sufficient to establish the
specific intent to kill. See Commonwealth v. Tucker, 143 A.3d 955, 964
(Pa.Super. 2016).
When, as in this case, the defendant has raised a claim of self-
defense, “[t]he use of force upon or toward another person is justifiable
-5-
J-S02007-18
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. § 505. If the defendant
properly raises self-defense under section 505, the Commonwealth must
prove beyond a reasonable doubt that the defendant’s act was not justifiable
self-defense. See Commonwealth v. McClendon, 874 A.2d 1223, 1229-
30 (Pa.Super. 2005). The Commonwealth sustains this burden if it
establishes at least one of the following: (1) the accused did not reasonably
believe that he was in danger of death or serious bodily injury; or (2) the
accused provoked or continued the use of force; or (3) the accused had a
duty to retreat and the retreat was possible with complete safety. Id. at
1230.
Appellant maintains that evidence presented by the Commonwealth
demonstrated that as many as eight guns were involved in the incident,
members of both the Twisters and Byrd Riders were firing weapons at the
time of the shooting, and a number of people were shooting in the
decedent’s direction. Appellant highlights that the evidence established that
the decedent was shot by two different people, as the projectiles discovered
in his body consisted of both .45 caliber and .38/.357 caliber bullet
fragments. Appellant claims that there is no physical evidence linking him to
the shooting, nor any evidence that he owned a .45 caliber gun. Appellant’s
brief at 14-15.
-6-
J-S02007-18
Appellant argues that Mr. Ginyard is the only individual who testified
that Appellant had a .45 caliber weapon and shot at the decedent, and posits
that Mr. Ginyard’s testimony should be discredited on the basis that, in his
initial statement to police, he did not identify Appellant as one of the
shooters at the scene. Appellant further contends that that this omission
establishes that he acted in self-defense. According to Appellant, a video
presented at trial is consistent with his claim that he shot his weapon in
response to fear of imminent danger of death or serious bodily injury caused
by the decedent firing his weapon. Appellant’s brief at 15.
The trial court rejected Appellant’s sufficiency claim, and explained its
determination as follows:
Video surveillance footage recovered from the Nifiji Event
Hall showed [Appellant] draw a .45 caliber pistol and point it at
the decedent’s head immediately prior to the shooting.
Additional footage recovered from the Nifiji Event Hall showed
[Appellant] fire his weapon down Park Street towards the
decedent. [Mr.] Ginyard testified that that he and [the
decedent] ran down Chew Street and turned onto Park Avenue
as [Appellant] gave chase. After running halfway down the city
block, [Mr.] Ginyard watched [the decedent] collapse after being
struck with gunfire. Dr. Chu testified that the decedent was
struck in the back with four bullets, two of which traveled
through his vital organs.
....
Although it is undisputed that multiple parties discharged
their weapons on the night of the murder, forensic evidence and
[Mr.] Ginyard’s testimony sufficiently disproved [Appellant’s]
self-defense argument. Dr. Chu’s uncontroverted testimony
showed that the decedent . . . suffered four wounds to his back
caused by .45 cal[iber] projectiles. [Mr.] Ginyard testified that
[Appellant] carried a .45 cal[iber] pistol and pointed it at the
-7-
J-S02007-18
decedent. Video evidence showed [Appellant] fire at the
decedent as he ran away. [Mr.] Ginyard recounted how he
attempted to flee the shooting with the decedent, only to watch
him collapse after having been struck in the back during his
escape. Nothing on the record indicated that the decedent fired
a weapon or otherwise attacked [Appellant]. The evidence is
sufficient to disprove [Appellant’s] self-defense claim, as the
Commonwealth has shown, beyond a reasonable doubt, that
[Appellant] could not reasonably believe he was in danger of
death or serious bodily injury, and that he continued to use force
as the decedent attempted to flee.
Trial Court Opinion, 3/16/17, at 6-7 (citations to record omitted).
Based on the evidence of record, the jury could reasonably infer that
Appellant chased the decedent as he was fleeing, and fired the shots which
killed him. As noted above, the use of a deadly weapon on a vital part of
the body is sufficient to establish the specific intent to kill. Tucker, supra.
Once the issue of self-defense had been raised by Appellant, the
Commonwealth sustained its burden of proof by demonstrating beyond a
reasonable doubt that Appellant did not reasonably believe that he was in
danger of death or serious bodily injury, since he fired the fatal shots as the
decedent was fleeing from him. Thus, Appellant is not entitled to relief on
his first claim.
In his second claim, Appellant contends that the verdict depended
primarily on Mr. Ginyard’s trial testimony, which was inconsistent with his
initial statement to police. Appellant claims that the physical evidence
contradicts Mr. Ginyard’s testimony, because the video recovered from the
scene does not show what caliber weapon Appellant was holding, or that he
-8-
J-S02007-18
discharged it. Appellant posits that Mr. Ginyard’s testimony should be
discredited because he provided false information on gun applications, and
was on probation for fraud at the time of trial. On this basis, Appellant
claims that the jury had no basis for rendering a guilty verdict on the murder
charge other than Mr. Ginyard’s inherently unreliable testimony.
Our standard of review of a challenge to the weight of the evidence is
well-settled:
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.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal
citations omitted).
As noted above, we assess only the trial court’s exercise of discretion
in evaluating whether the jury’s decision to give more weight to certain facts
constitutes a denial of justice. Here, the trial court determined there were
no grounds to disturb the jury’s credibility findings or reweigh the evidence
after examining all of the evidence, stating:
[Appellant’s] argument ignores the substantial video
evidence showing [Appellant] brandishing a weapon prior to the
shooting, threatening the decedent with his weapon, and firing
-9-
J-S02007-18
the weapon towards the decedent. Eyewitnesses [Mr.] Ginyard
and Gregory identified [Appellant] as the shooter on the video
surveillance tape, while [Mr.] Ginyard testified that he stood one
foot away from the decedent when [Appellant] pointed a gun at
his face. Although trial counsel impeached [Mr.] Ginyard with
evidence of his prior crimen falsi convictions for fraud and
providing false information to obtain a firearm, the jury was free
to consider those convictions during their deliberations and
found [Appellant] guilty nonetheless.
Trial Court Opinion, 3/16/17, at 9-10 (citations to record omitted).
Additionally, our review discloses that Mr. Ginyard was subject to
extensive cross-examination before the jury regarding his failure to identify
Appellant in his initial statement, and that he presented an explanation for
the inconsistency.2 See N.T. Trial, 11/9/16, at 35-84. The jury had a full
opportunity to observe Mr. Ginyard and to assess the credibility of his
explanation. After reviewing all the evidence, the jury found that the
credible evidence identified Appellant as the shooter. As such, we conclude
the trial court properly exercised its discretion in finding the jury’s verdict
was not so contrary to the evidence as to shock the conscience.
Judgment of sentence affirmed.
____________________________________________
2 Our review discloses that Mr. Ginyard testified that he spent approximately
thirty-six hours at the police station following the incident. During that time,
he gave two statements to police. After providing his first statement, Mr.
Ginyard was shown surveillance video from an area near the shooting. After
viewing the videotape, Mr. Ginyard provided his second statement to police,
wherein he identified Appellant as an individual in the video holding a gun,
and stated that Appellant shot at the decedent. See N.T. Trial, 11/9/16, at
35-84.
- 10 -
J-S02007-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/18
- 11 -