J-S40036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    LOUIS E. ALEXANDER                         :
                                               :
                      Appellant                :   No. 1404 EDA 2016

           Appeal from the Judgment of Sentence December 18, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005336-2013


BEFORE:      OTT, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                     FILED JULY 10, 2017

        Louis E. Alexander appeals from the judgment of sentence imposed on

December 18, 2015, in the Court of Common Pleas of Philadelphia County.

A jury convicted Alexander of murder of the first degree, carrying a firearm

without a license, and possessing an instrument of crime.1 The trial court

sentenced Alexander to life imprisonment without parole on the murder

charge and two concurrent terms of imprisonment of one to two years each

for the remaining offenses.            In this appeal, Alexander challenges the

sufficiency of the evidence and the weight of the evidence. Based upon the

following, we affirm.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2502(a), 6106(a)(1), and 907(a).
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     The trial court has aptly summarized the background of this case:

     [Alexander] was arrested on October 17, 2012, and charged with
     murder, possessing the instruments of a crime, recklessly
     endangering another person and violations of the Uniform
     Firearms Act. [Alexander] was bound over for court on all
     charges after a preliminary hearing on January 31, 2013. A jury
     trial was held from August 10, 2015 through August 17, 2015 at
     which time [Alexander] was convicted of [murder of the first
     degree, carrying a firearm without a license, and possessing an
     instrument of crime] and subsequently sentenced to life in prison
     without parole. CP-51-CR-0001306-2013 was nolle prossed on
     December 18, 2015.

                                   ****

     On May 4, 2012, Daquan Windley was standing outside of a bar
     at 15th and Huntingdon Street in Philadelphia. Mr. Windley
     walked across the street to the trunk of a vehicle where a couple
     of people had gathered. Louis Alexander came across the street
     and shot Windley several times. Windley ran down the street and
     [Alexander] chased him and shot him two more times. Daquan
     Windley collapsed on a porch. The police responded, and upon
     finding Windley they scoop[ed] him up and t[ook] him to Temple
     Hospital. Fourteen days later Windley succumbed to his wounds
     and died. Although a complaint was filed on June 13, 2012,
     [Alexander] was not apprehended until October 17, 2012. …

Trial Court Opinion, 10/27/2016, at 1–2, 3.

     Following his jury conviction on August 18, 2015, Alexander was

sentenced on December 18, 2015. A motion for reconsideration of sentence

was filed on December 22, 2015, and an amended post-sentence motion




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was filed on December 28, 2015. Both motions were denied by operation of

law on April 20, 2016, and this appeal followed.2

         Alexander first challenges the sufficiency of the evidence to sustain his

convictions. He asserts “the evidence presented was insufficient to sustain

the verdict where witness statements were inconsistent, unreliable and failed

to prove [Alexander’s] participation in the alleged crime.” Alexander’s Brief

at 11.

         Alexander states he and the victim were friends, and asserts the video

surveillance of the incident did not show the actual shooting. Id. Moreover,

he claims that “although motive is not necessary for the Commonwealth to

prove its case, it is unarguably a significant factor to consider [] that the

edited video surveillance did not show that the Decedent and [Alexander],

while inside Big Al’s Spot Bar, embraced each other immediately prior to the

incident.”3 Id.    Alexander points out that the victim told police he did not

know who shot him.         Id. at 11-12.       Alexander also relies on his own trial

testimony that he did not shoot the victim, that he did not have a gun, and

that a man named Hock reached into the trunk of a car, pulled out a gun,
____________________________________________


2
  Alexander timely complied with the order of the trial court to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
3
  The parties stipulated that the edited video “mistakenly does not show
[Alexander] and [the victim] in the bar hugging. That is agreed that that
happened and it is not shown in the video.” N.T., 8/17/2015, at 48.



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and then Alexander heard shots. Id. at 12. Additionally, Alexander states

he testified he went to the victim’s funeral service.

       Alexander claims that the surveillance video did not show him with a

gun and indicated the shooting occurred in the street, which is inconsistent

with the fired cartridge casings being found on the sidewalk.       Id.   Finally,

Alexander asserts Tyree4 Smith, who initially gave a statement to police

indicating he witnessed the incident, retracted this statement at trial and

testified that he did not know who killed the victim, and did not see what

occurred.     Id.    Alexander relies on Smith’s testimony that he lied to

detectives because he wanted “to get out of there,” and that “he’s been a

liar all his life.” Id., citing N.T., 8/12/2015, at 67, 70.

       Our standard of review of a sufficiency claim is well settled:

       In evaluating a challenge to the sufficiency of the evidence, we
       must determine whether, viewing the evidence in the light most
       favorable to the Commonwealth as verdict winner, together with
       all reasonable inferences therefrom, the trier of fact could have
       found that each and every element of the crimes charged was
       established beyond a reasonable doubt. We may not weight the
       evidence and substitute our judgment for the fact-finder. To
       sustain a conviction, however, the facts and circumstances which
       the Commonwealth must prove must be such that every
       essential element of the crime is established beyond a
       reasonable doubt.


____________________________________________


4
  The record reflects the witness’s name as “Tyreeke Smith.”            See N.T.,
8/12/2015, at 2.



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     Lastly, the finder of fact may believe all, some or none of a
     witness’s testimony.

Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011) (citations

omitted).

     Based on our review, we conclude the arguments of Alexander present

no basis upon which to disturb the determination of the trial court that the

evidence was sufficient to support Alexander’s convictions.   Here, the trial

court analyzed the Commonwealth’s evidence, as follows:

     The evidence in this case was substantial and overwhelming, in
     fact the murder is on videotape! There were numerous
     surveillance cameras in, as well as outside the bar at 15th and
     Huntington Streets. The jury was able to see [Alexander] as well
     as the decedent in the bar and when each of them left the bar.
     Windley stands outside of the bar and Alexander goes to the
     corner where a car pulls up and hands [Alexander] an object
     which is not discernable in the video. Alexander then crosses the
     street to where the decedent was standing with a few other
     people and shoots Windley several times. [Alexander] continues
     to shoot the decedent as he runs up the street. (N.T. 8-17-2015,
     pp. 8-13).

     In addition to the tape-recording of the murder, the parties
     stipulated that the individual in the video wearing the tan
     hooded jacket and blue jeans was [Alexander]. This is the
     individual [who] is shown inside and outside of the bar, crossing
     the street and approaching the decedent immediately prior to
     the gunshots, and running after the decedent with his arm
     extended while hearing more shots. (N.T. 8-11-2015, pp. 18,
     79-80; 83-88, 8-12-2015, p.2). The medical examiner testified
     as to the cause of death and that the wounds received by the
     decedent were consistent with the video. (N.T. 8-11-2015, pp.
     83-88). Tyreeke Smith was at the scene of the murder shooting
     dice, and although when he testified he claimed not to recall
     what happened that evening, his statement on the morning
     following the murder declares that he saw “Louie” go up to the


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       decedent and shoot Windley, then run back, past Smith with a
       gun in his hand. (N.T. 8-12-2015, pp. 18-20, 23-24). Reginald
       Green also testified that he was outside of the bar at the time of
       the shooting and although he did not see the shooting, he did
       see [Alexander] running away after the crime. (N.T. 8-12-2015,
       pp. 106-109). Detective Marano told the jury about interviewing
       Tyreeke Smith following the incident and how that eyewitness
       had stated he had seen the entire incident including [Alexander]
       walking up to the decedent and firing four or five shots and then
       as Windley runs away, Alexander chasing after him and firing
       three or four more shots. (N.T. 8-12-2015, pp. 121-123). The
       evidence was not only sufficient, it was overwhelming.

Trial Court Opinion, 10/27/2016, at 4–5.         We agree with the trial court’s

analysis of the evidence presented to the jury, and add the following

comments to address Alexander’s argument.

       As already stated, the jury is free to believe all, some or none of a

witness’s testimony. Priest, supra, 18 A.3d at 1240. The fact that the

victim and Alexander embraced a short time before the shooting was

presented to the jury by way of stipulation.5 The jury, however, apparently

believed the Commonwealth’s evidence.

       Furthermore, the fact that Alexander denied shooting the victim and

Smith recanted his statement to police does not render the evidence

insufficient.    The Pennsylvania Supreme Court has held that the prior

inconsistent statements of witnesses who recanted at trial constituted

sufficient evidence to support the defendant’s murder conviction when the
____________________________________________


5
    See Footnote 3, supra.



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witnesses testified at trial and were subject to cross-examination before a

factfinder that could reasonably credit the prior statements over the

witnesses’ in-court recantations. Commonwealth v. Brown, 52 A.3d 1139,

1168 (Pa. 2012).    Here, the jury observed the testimony of Smith, and was

free to credit Smith’s initial statement to police rather than his recantation.

See Brown, supra, at 1169 (“[I]t is the finder-of-fact’s ability to make in-

person observations of the witness at the time of trial, as he or she explains

the reasons for the prior statement, which is most crucial to its assessment

of the witness’s credibility.”).    Accordingly, for all the above reasons,

Alexander’s first argument fails.

      The second issue raised by Alexander is framed as a challenge to the

weight of the evidence.    Alexander argues “Smith testified that he lied to

members of the Philadelphia Police Department in his initial statement and

that he had been a liar all his life.”   Alexander’s Brief at 15.   Alexander

maintains: “When Smith’s testimony is viewed in light of the edited video

surveillance tapes, which did not show [Alexander] with a gun, and in light

of the ballistics evidence showing fired cartridge casings on the sidewalk not

in the street, the jury’s verdict is based upon mere speculation and has no

factual support.”   Id. Alexander also again points out that he testified he

was a friend of the decedent, as demonstrated by stipulation that missing




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video footage showed the decedent and Alexander hugging each other inside

Big Al’s Spot immediately before the shooting. See id.

     Our review of a weight claim is well settled:

     The decision to grant or deny a motion for a new trial based
     upon a claim that the verdict is against the weight of the
     evidence is within the sound discretion of the trial court.
     Commonwealth v. Cousar, 593 Pa. 204, 928 A.2d 1025, 1033,
     1036 (Pa. 2007). Thus, "the function of an appellate court on
     appeal is to review the trial court's exercise of discretion based
     upon a review of the record, rather than to consider de novo the
     underlying question of the weight of the evidence."
     Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211, 1225
     (Pa. 2009). An appellate court may not overturn the trial court's
     decision unless the trial court "palpably abused its discretion in
     ruling on the weight claim." Commonwealth v. Champney,
     574 Pa. 435, 832 A.2d 403, 408 (Pa. 2003). Further, in
     reviewing a challenge to the weight of the evidence, a verdict
     will be overturned only if it is "so contrary to the evidence as to
     shock one's sense of justice." Commonwealth v. Diggs, 597
     Pa. 28, 949 A.2d 873, 879 (Pa. 2008).

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016), cert. denied by

Cash v. Pennsylvania, 137 S. Ct. 1202 (Feb. 27, 2017).

     Here, the trial court rejected Alexander’s weight claim, stating:

     A claim that the verdict was contrary to the weight of the
     evidence concedes that there is sufficient evidence to sustain the
     verdict. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d
     745 (Pa. 2000). “[T]he weight of the evidence is exclusively for
     the finder of fact who is free to believe all, part, or none of the
     evidence and to determine the credibility of the witnesses.”
     Commonwealth v. Marks, 704 A.2d 1095, 1098 (Pa. Super.
     1997), citing Commonwealth v. Simmons, 541 Pa. 211, 229,
     662 A.2d 621, 630 (1995). A defendant’s request for a new trial
     based on the argument that the verdict was against the weight
     of the evidence will only be granted when the verdict is so
     contrary to the evidence as to make the award of a new trial

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     imperative. Commonwealth v. Mason, 559 Pa. 500, 513, 741
     A.2d 708, 715 (1999); Commonwealth v. Auker, 545 Pa. 521,
     541, 681 A.2d 1305, 1316 (1996). Where the record adequately
     supports the trial court, the court has acted within the limits of
     its discretion. Commonwealth v. Clay, 619 Pa. 423, 64 A.3d
     1049 (2013); Commonwealth v. Brown, 538 Pa. 410, 648
     A.2d 1177 (1994).

     As was noted earlier, the evidence in this case was compelling,
     substantial and overwhelming. The defendant is videotaped
     inside the bar, leaving and going to the corner where he
     retrieves an object from men in a vehicle, crossing over the
     street to where the decedent was standing at which time you
     hear four or five gunshots, then chasing the decedent down the
     street with his arm outstretched as you hear three or four more
     gunshots. An eyewitness gives a statement within hours of the
     murder identifying Alexander as the murderer and a second
     witness identifies the defendant as running away immediately
     following the homicide. Accordingly, the verdict was not so
     contrary to the evidence as to shock one’s sense of justice and
     therefore, the judgment must stand.

Trial Court Opinion, 10/27/2016, at 5–6.

     The trial court applied the correct standard to this weight claim,

reviewed the evidence, and determined the jury’s verdict was consistent

with the evidence presented at trial.      While Alexander seeks to discredit

Smith’s initial statement to police based on Smith’s testimony he lied to

police, the jury was free to accept Smith’s prior inconsistent statements and

reject his recantation.   As this Court recently stated in addressing a

comparable claim:

     Although Appellant discounts Fowler and Graham’s statements to
     police as they later recanted at trial, the jury was free to credit
     the witnesses’ prior inconsistent statements over their
     recantations. In a similar case, the Pennsylvania Supreme Court

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        held that the prior inconsistent statements of witnesses who
        recanted at trial constituted sufficient evidence to support the
        defendant's murder conviction when the witnesses testified at
        trial and were subject to cross-examination before a factfinder
        that could reasonably credit the prior statements over the
        witnesses’ in-court recantations. Commonwealth v. Brown,
        617 Pa. 107, 154, 52 A.3d 1139, 1168 (2012).

        Although Graham and Fowler recanted their accounts of the
        crime at trial, they were subject to cross-examination before the
        jury and presented explanations for making the inconsistent
        statements. … The jury had a full opportunity to observe the
        witnesses and assess the credibility of their explanations for the
        recantations.

Commonwealth v. Brown, 134 A.3d 1097, 1104–1105 (Pa. Super. 2016).

Likewise, in this case, Smith testified at trial and was subject to cross-

examination, and the jury was able to make credibility determinations

regarding Smith’s recantation and his initial statement.

        Furthermore, the jury viewed the surveillance video and watched

Alexander, who stipulated to being the individual in the video wearing a light

colored hooded jacket and blue jeans.6 The jury also heard Commonwealth

witnesses testify regarding ejection and location of the casings at the crime

scene.     After reviewing all the evidence, the jury found credible the

Commonwealth’s evidence that showed Alexander as the shooter. Based on

our review, we conclude the trial court properly exercised its discretion in


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6
    See N.T., 8/17/2015, at 2-3.



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finding the jury’s verdict was not so contrary to the evidence as to shock the

conscience.

      Having reviewed the arguments presented by Alexander, and having

found them to be meritless, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2017




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