Com. v. McMillan, M. ( 2014 )

J-S62008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARVIN MCMILLAN,
Appellant No. 2159 EDA 2013
Appeal from the Judgment of Sentence entered on February 15, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0001349-2011
BEFORE: ALLEN, OLSON, and OTT, JJ.
MEMORANDUM BY ALLEN, J.: FILED OCTOBER 06, 2014
imposed after a jury convicted him of voluntary manslaughter and violating
the Uniform Firearms Act in relation to the shooting death of DeWayne
Butler.
Appellant presents the following issues for our review:
I. Is [Appellant] entitled to an Arrest of Judgment on all
charges as a result of a lack of sufficient evidence to
sustain the verdict?
II. Is [Appellant] entitled to a new trial on all charges where
the verdict is not supported by the greater weight of the
evidence?
III. Is [Appellant] entitled to a new trial as the result of
prosecutorial misconduct where the Assistant District
Attorney alluded to the fact that [Appellant] could testify
where as here, [Appellant] did not testify, the remarks
were grossly prejudicial?
J-S62008-14
IV. Is [Appellant] entitled to a new trial as the Trial Court
permitted impermissible hearsay into the record through
the reading of an Out of Court Statement where there was
no legal reason to permit same?
claims of error to be unavailing. The Honorable Linda Carpenter, who
presided over the trial in this matter, has filed a comprehensive and well-
reasoned opinion, with a related Exhibit A, which we adopt and incorporate
regarding th
conduct, and the admissibility of evidence. We therefore adopt the trial
judgment of sentence.
Our affirmance reflects
determination that the prior written and adopted statement of Robert Harris,
which was given to law enforcement on the day of the shooting and which
at trial
pursuant to Pa.R.E. 803.1(1)(b). See Trial Court Opinion, 12/5/13, at 5-6;
see also Commonwealth v. Brown, 52 A.3d 1139, 1169-1171 (Pa. 2012);
Commonwealth v. Wilson, 707 A.2d 1114, 1115-1117 (Pa. 1998).
We further agree with the trial court that Appellant was not entitled to
relief regarding his claim of prosecutorial misconduct. See Commonwealth
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J-S62008-14
v. Lewis, 39 A.3d 341, 352 (Pa. Super. 2012). Our review of the record
Khalid Harris was an unavailable witness whose prior statement to law
enforcement was admissible at trial pursuant to Pa.R.E. 804(b)(6). See Trial
Court Opinion, 12/5/13, at 10-15; see also Commonwealth v. Kunkle, 79
A.3d 1173, 1186-1187 (Pa. Super. 2013).
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2014
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