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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                    v.                  :
                                        :
DERRICK THOMPSON,                       :          No. 151 EDA 2013
                                        :
                         Appellant      :


           Appeal from the Judgment of Sentence, October 26, 2012,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0004275-2011


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 31, 2017

        Derrick Thompson appeals the judgment of sentence in which the

Court of Common Pleas of Philadelphia County sentenced him to serve a

term of life in prison for first-degree murder.1    After careful review, we

affirm.

        In September 2003, Craig Butler (“Butler”) was standing outside of a

bar on York Street in the City of Philadelphia and overheard appellant tell

Terrance Berry (“the victim”), “I don’t want you hustling around here

no [sic] more.” (Notes of testimony, 10/22/12 at 91.) Butler explained that

the term “hustling” meant “selling drugs.” (Id.)




* Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2502(a).
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      On September 20, 2003, Butler was walking on Arizona Street when

he saw the victim standing outside a Ford Thunderbird with his hands resting

on the hood. Appellant was in the car. Butler then heard a “boom.” Butler

saw the victim fall back and saw appellant exit the vehicle. (Id. at 92-94.)

Butler saw a portion of a double barrel shotgun hanging outside the driver’s

side window of the car. Butler observed appellant exit the vehicle and get

on a bicycle. (Id. at 95.) Butler went to appellant’s residence and arrived

there approximately 15 minutes after the shooting.           Butler overheard

appellant tell Kiomi Dell (“Dell”), the mother of appellant’s child, “to go

head [sic] and get the gun from the car, take it in the house.” (Id. at 104.)

      The City of Philadelphia Police Department investigated the scene of

the shooting.     The victim was pronounced dead at 8:35 p.m. on

September 20, 2003.     (Notes of testimony, 10/18/12 at 63.)        The police

recovered two live shotgun shells from the left side of the driver’s seat of the

Ford Thunderbird.   (Id. at 142.)    Officer Robert Flade of the Crime Scene

Unit observed wadding from the shotgun in the victim’s neck. (Id. at 144.)

The police recovered appellant’s fingerprints from the Ford Thunderbird.

(Notes of testimony, 10/22/12 at 185.)

      Sam Gulino, M.D. (“Dr. Gulino”), chief medical examiner for the City of

Philadelphia, testified that the victim suffered a shotgun wound to the neck

at close range which damaged the structures in the neck, including the

voice box, larynx, blood vessels and nerves in the neck, the spine in the



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neck, and severed his spinal cord. (Id. at 25-26.) Dr. Gulino testified that

the victim died of a single shotgun wound to the neck, and the manner of

death was homicide. (Id. at 41.)

        Orlando O’Neal testified that in mid-October of 2003, appellant told

him that a person known as “Lemon” had a shotgun in his possession and he

wanted money or else he would turn it in to the police.           (Id. at 55.)

Appellant told O’Neal that the shotgun was passed off to a female friend,

who passed it off to somebody else, and somehow Lemon got it.           (Id. at

56.) Appellant told O’Neal that Lemon wanted money every week and that

he should have gotten rid of the shotgun right after the shooting. (Id. at

67.)

        Detective Kevin Judge of the Philadelphia Police Department testified

that when he questioned appellant on November 11, 2003, regarding the

shooting of the victim, appellant denied that he saw who shot the victim and

claimed that Dell called the police to report the shooting. (Id. at 119-120.)

        Appellant did not testify.    Keith Harding, a long-time friend of

appellant, testified that appellant told him that he shot the victim “on a [sic]

accident.” (Notes of testimony, 10/23/12 at 77.)

        On October 26, 2012, the jury found appellant guilty of first-degree

murder. The trial court sentenced appellant to life in prison. Appellant was

also convicted of possession of an instrument of crime 2 but was sentenced to


2
    18 Pa.C.S.A. § 907(a).


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no further penalty.      Appellant filed a post-sentence motion which the trial

court denied on December 11, 2012.

         Appellant appealed to this court. On September 12, 2016, appellant’s

counsel, Norman Scott, Esq. (“Attorney Scott”), applied to withdraw as

counsel and asked this court to remand to the trial court for the appointment

of new counsel because Attorney Scott had been suspended from the

practice of law for six months on August 17, 2016.           On October 3, 2016,

appellant moved to hold his appeal in abeyance pending the appointment of

new counsel after Attorney Scott’s suspension. On December 5, 2016, this

court granted Attorney Scott’s leave to withdraw and remanded for the

appointment of new counsel for appellant.               This court also granted

appellant’s motion to hold his appeal in abeyance pending action by the trial

court.

         On January 30, 2017, the trial court appointed new counsel,

David Scott Rudenstein, Esq. (“Attorney Rudenstein”).          On April 13, 2017,

Attorney Rudenstein petitioned to vacate the previous brief filed on behalf of

appellant.     On April 21, 2017, this court granted the motion to vacate.

Subsequently, both parties filed briefs.

         Appellant raises the following issues for this court’s review:

               1.    Is [appellant] entitled to an Arrest of Judgment
                     on the charge of Murder in the First Degree
                     where the evidence was insufficient to
                     establish that [appellant] was the perpetrator
                     of the crime; and where, the evidence was
                     insufficient to establish the crime of Murder in


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                   the First Degree where the Commonwealth
                   could not prove specific intent to kill or
                   premeditation?

            2.     Is [appellant] entitled to a new trial on the
                   charge of Murder in the First Degree where the
                   greater weight of the evidence did not support
                   the verdict?

Appellant’s brief at 3.

      Regarding whether the Commonwealth presented sufficient evidence

to sustain a conviction, appellant contends simply that the Commonwealth

did not prove its case because Butler turns up everywhere. He was present

when appellant allegedly threatened the victim, he was present when

appellant allegedly shot the victim, and he was present at appellant’s home

when there was talk of a gun. Appellant characterizes Butler’s testimony as

“simply outrageously unbelievable.” (Appellant’s brief at 9.)

                  A claim challenging the sufficiency of the
            evidence is a question of law. Commonwealth v.
            Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751
            (2000). In that case, our Supreme Court set forth
            the sufficiency of the evidence standard:

                   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.
                   Commonwealth v. Karkaria, 533 Pa.
                   412, 625 A.2d 1167 (1993). Where the
                   evidence offered to support the verdict is
                   in contradiction to the physical facts, in
                   contravention to human experience and
                   the laws of nature, then the evidence is
                   insufficient as a matter of law.
                   Commonwealth v. Santana, 460 Pa.


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                  482, 333 A.2d 876 (1975).           When
                  reviewing a sufficiency claim the court is
                  required to view the evidence in the light
                  most favorable to the verdict winner
                  giving the prosecution the benefit of all
                  reasonable inferences to be drawn from
                  the evidence.       Commonwealth v.
                  Chambers, 528 Pa. 558, 599 A.2d 630
                  (1991).

            Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

      We begin by reviewing the sufficiency of the evidence for appellant’s

first-degree murder conviction. “To obtain a first-degree murder conviction,

the Commonwealth must demonstrate that a human being was unlawfully

killed, the defendant perpetrated the killing, and the defendant acted with

malice and a specific intent to kill.”   Commonwealth v. Montalvo, 986

A.2d 84, 92 (Pa. 2009), citing Commonwealth v. Kennedy, 959 A.2d 916,

920 (Pa. 2008); 18 Pa.C.S.A. § 2502(a).          Specific intent to kill can be

established through circumstantial evidence, such as the use of a deadly

weapon on a vital part of the victim’s body. Commonwealth v. Rega, 933

A.2d 997, 1009 (Pa. 2007).

      Although appellant acknowledges that credibility is normally left to the

jury, appellant argues that Butler’s testimony is incredible.    He challenges

Butler’s testimony as not having a “ring of truth to it.”

      The Pennsylvania Supreme Court has explained that there is an

“exception to the general rule that the jury is the sole arbiter of the facts



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where the testimony is so inherently unreliable that a verdict based upon it

could amount to no more than surmise or conjecture.” Commonwealth v.

Karkaria, 625 A.2d 1167, 1170 (Pa. 1993), quoting, Commonwealth v.

Smith, 467 A.2d 1120, 1122 (Pa. 1983).

      Here, the physical evidence and appellant’s own statements supported

Butler’s testimony such that this verdict was not based on mere surmise or

conjecture.

      Appellant also asserts that he is entitled to an arrest of judgment on

the first degree murder conviction because the Commonwealth failed to

make out the elements of the crime. Specifically, appellant argues that the

Commonwealth failed to establish that appellant killed the victim in an

intentional, deliberate, and premeditated manner.

      Here, the evidence supports that the victim was killed and that

appellant perpetrated the killing.   With respect to whether appellant acted

with malice and a specific intent to kill, the Commonwealth presented

evidence that Butler heard appellant tell the victim to stop selling drugs in

his area a few days before Butler saw appellant talking to the victim. Butler

then heard a “bang,” saw the victim fall to the ground, saw appellant exit

the vehicle, and saw a shotgun in the vehicle.           (Notes of testimony,

10/22/12 at 92-95.)     Medical evidence and ballistics evidence established

that the victim was shot at close range in the neck which severed the spinal

cord which is certainly a vital part of the victim’s body. It could certainly be



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inferred from Butler’s testimony that appellant intended to kill the victim.

The Commonwealth presented sufficient evidence to establish that appellant

committed first-degree murder.

      Appellant next contends that the verdict was against the weight of the

evidence.

                   [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.          An appellate court cannot
            substitute its judgment for that of the finder of fact
            . . . thus, we may only reverse the lower court’s
            verdict if it is so contrary to the evidence as to shock
            one’s sense of justice. Moreover, where the trial
            court has ruled on the weight claim below, an
            appellate court’s role is not to consider the
            underlying question of whether the verdict is against
            the weight of the evidence, . . . rather, appellate
            review is limited to whether the trial court palpably
            abused its discretion in ruling on the weight claim.

            Commonwealth v. Kim, 888 A.2d 847, 851
            (Pa.Super. 2005) (citations and quotations omitted).
            A motion for a new trial based on a challenge to the
            weight of the evidence concedes the evidence was
            sufficient to support the verdict. Commonwealth v.
            Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

      Appellant argues that the greater weight of the evidence does not

support the verdict.     Specifically, appellant argues the evidence only

supports that he had a gun and that the gun was discharged.             While

Keith Harding testified that appellant told him that the shooting was an

accident, the jury did not credit this testimony and credited the testimony of



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Butler. Once again, appellant attacks the credibility of Butler whom the jury

obviously credited. Based on the evidence presented, the guilty verdict was

not so contrary to the evidence to shock one’s sense of justice.    The trial

court did not abuse its discretion when it denied appellant’s post-trial

motion.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2017




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