J-S27019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MARQUISE WALKER-WOMACK                     :
                                               :
                      Appellant                :   No. 1809 EDA 2016

              Appeal from the Judgment of Sentence April 29, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007619-2013


BEFORE:       GANTMAN, P.J., OTT, J. and PLATT, J.*

MEMORANDUM BY OTT, J.:                                     FILED July 3, 2017

        Marquise Walker-Womack appeals from the judgment of sentence

imposed on April 29, 2016, in the Court of Common Pleas of Philadelphia

County, following his conviction by jury1 on the charges of first-degree

murder, conspiracy, firearms not to be carried without a license, carrying

firearms in public in Philadelphia, and possession of an instrument of crime. 2

Walker-Womack, who was fifteen years old at the time of the crimes,

received a total sentence of 35 years’ to life imprisonment. In this timely
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Walker-Womack and his co-defendant, Warren Stokes, were originally tried
in September, 2014. That trial ended with a hung jury. The two were
retried in February, 2016, at which time both were convicted of first-degree
murder and related charges.
2
    18 Pa.C.S. §§ 2502(a), 903, 6106(a)(1), 6108, and 907, respectively.
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appeal, Walker-Womack claims only that the verdict was against the weight

of the evidence.3 After a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm.

        We rely upon the facts as related by the trial court in its Pa.R.A.P.

1925(a) opinion.

        On August 5, 2009, Katora Wilson Bush travelled by bus to the
        5100 block of Chester Avenue in Southwest Philadelphia from
        dinner with her daughter, Amirajh Wilson, and her husband,
        Gerald Bush. Upon disembarking the bus, all three observed an
        African-American teenager in a black hooded sweatshirt, later
        identified as the Defendant, Marquise Walker-Womack, following
        them as they walked southwest along Chester Avenue.

        As she travelled home with her family, Katora Wilson Bush
        observed her son, the decedent Niam Wilson Atif, at the corner
        near 5117 Chester Avenue talking to his neighbor, Allen Bryant.
        During Bryant and the decedent’s discussion about employment,
        an unidentified individual walked past the pair shouting, “it’s
        about to go down.” Seconds later, Bryant saw the African-
        American teenager in the black hooded sweatshirt approach the
        decedent from behind, draw a revolver, and shoot him three
        times. [Walker-Womack] was fifteen-years-old at the time of
        the shooting.

        Katora Wilson Bush heard the gunfire from her home eight doors
        away and saw her son lie bleeding on the corner of Chester
        Avenue and Paxon Street. Gerald Bush and Amirajh Wilson,
        from Katora Wilson Bush’s same vantage point, watched as the
        teenager fled the scene along Chester Avenue.          Neither
        eyewitness identified [Walker-Womack] as the shooter.

        At approximately 11:00 p.m., Philadelphia Police Officers
        Alexander Montes and Clara Martinez arrived at the scene and
        observed the decedent laying [sic] in a pool of blood emanating
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3
    This claim was preserved in a post-sentence motion filed on May 6, 2016.



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       from a large wound in the back-right side of his head.[4] Officer
       Martinez spoke to Amirajh Wilson, who described the assailant
       as a 5’8” African-American male in his teens, wearing a black
       hood.

       According to Philadelphia Deputy Medical Examiner Dr. Albert
       Chu, and expert in forensic pathology, the decedent sustained
       three fatal, penetrating gunshot wounds to the left side of his
       head, the right side of his neck and his center back, respectively.
       Each bullet penetrated a vital organ, including the brain, jugular
       vein and the left lung. The medical examiner recovered all three
       projectiles from the body which were submitted to the Firearms
       Identification Unit. The decedents’ body did not exhibit stippling
       or any other indications of close-range firing.           Dr. Chu
       concluded, to a reasonable degree of medical certainty, that the
       manner of death was homicide caused by multiple gunshot
       wounds.

       On October 7, 2009, Philadelphia police engaged in a foot chase
       with Tyreek Artis, a member of the Harlem Boys gang. Artis led
       police to an apartment complex at 5403 Harley Terrace and
       attempted to conceal himself in unit 3A. Unit 3A served as an
       epicenter for gang-related activity, housing several firearms and
       approximately sixty drug packets prepared for distribution.
       Inside, police discovered Artis, gang member Kareem Pittman,
       and co-defendant Warren Stokes, and recovered a loaded .38
       Special revolver.

       Officer Jesus Cruz, a ballistics expert with the Philadelphia
       Firearms Investigation Unit, examined all three projectiles
       recovered from the decedent’s body and determined that all
       three bullets were fired from a single firearm. Each projectile
       exhibited “six left twist” rifling markings, an identification
       characteristic used to match a projectile to the weapon that fired
       it. Officer Cruz concluded that the projectiles were consistent
       with having been fired from the .38 Special recovered at 5403
____________________________________________


4
 We note the medical examiner testified the wound was penetrating (it did
not exit the body), to the left side of the head, moving left to right,
downward and a little bit front to back. See N.T. Trial, 2/2/2016 at 109-11.
The difference in the description of the head wound does not affect the
analysis.



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     Harley Terrace,    as   the   firearm   exhibited   “six   left   twist”
     characteristics.

     No more than one week after the murder, [Walker-Womack]
     bragged to Pittman and Harlem Boys gang member Tayale
     Shelton that he “put in some work” by killing the decedent.
     [Walker-Womack] and Stokes told both Pittman and Shelton that
     Stokes provided the .38 Special Walker-Womack used to kill the
     decedent.    As [Walker-Womack] described the shooting to
     Pittman, Stokes displayed the firearm used to murder the
     decedent. [Walker-Womack] further informed Shelton that he
     shot the decedent at Stokes’ behest.

     On October 6, 2010, federal authorities indicted Pittman and
     Shelton pursuant to the Racketeering Influenced and Corrupt
     Organizations Act (“RICO”). Prior to trial, Pittman and Shelton
     pled guilty and entered into separate cooperation agreements.
     [fn]
     _________________
         [Fn] Shelton entered into his guilty plea agreement on April
         4, 2012, and Pittman entered into his on April 9, 2012.
         Both witnesses seek a USSG § 5K1.1 departure from the
         mandatory minimum sentences attached to their federal
         charges. Commonwealth Exhibit C-125-1; Commonwealth
         Exhibit C-126-1.
     _________________

     During an April 18, 2012 interview with Philadelphia homicide
     Detectives John McNamee and William Kelhower, Pittman
     explained that Stokes oversaw a splinter organization within the
     Harlem Boys, known as the Greenway Gorillas, consisting
     primarily of adolescent members, and that [Walker-Womack],
     known in the organization as “Littleman,” shot the decedent at
     Stokes’ behest. During a May 18, 2012 interview, Shelton told
     Detectives McNamee and Kelhower that [Walker-Womack]
     confessed to shooting the decedent on Stokes’ orders, as Stokes
     had been “beefing” with the decedent for some time prior to the
     shooting. Shelton further explained that the murder weapon
     was a “community” firearm that Stokes provided to [Walker-
     Womack].

     After his arrest, [Walker-Womack] was incarcerated at the
     Philadelphia Industrial Correctional Facility (“PICC”) in a cell next
     to one occupied by Thomas Adams. In November 2014, while

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        both Adams and [Walker-Womack] were incarcerated, [Walker-
        Womack] confessed to Adams that he shot the decedent three
        times with a .38 Special revolver.

        At trial, both Pittman and Shelton described [Walker-Womack]
        as a member of the Greenway Gorillas, which served as a feeder
        group to the Harlem Boys gang that included Pittman, Shelton,
        and Stokes as members. Pittman and Shelton both testified that
        Greenway Gorillas members seeking to advance within the gang
        committed murders to impress Harlem Boys associates.
        [Walker-Womack] in particular looked up to Stokes and sought
        to earn his respect and approval.

Trial Court Opinion, 7/25/2016, at 2-5 (citations to record omitted).

        Against this factual background, Walker-Womack argues the possible

sentence reductions available to Pittman and Shelton “made it virtually

impossible for them not to fabricate their testimony” 5 and Thomas Adams’

recantion of his prior statement to the police on the witness stand, renders

the guilty verdict against the weight of the evidence.         Our standard of

review for a challenge to the weight of the evidence is well settled.

        A motion for a new trial based on a claim that the verdict is
        against the weight of the evidence is addressed to the discretion
        of the trial court. Commonwealth v. Widmer, 560 Pa. 308,
        319, 744 A.2d 745, 751-52 (2000); Commonwealth v. Brown,
        538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial
        should not be granted because of a mere conflict in the
        testimony or because the judge on the same facts would have
        arrived at a different conclusion. Widmer, 560 Pa. at 319-20,
        744 A.2d at 752. Rather, “the role of the trial judge is to
        determine that ‘notwithstanding all the facts, certain facts are so
        clearly of greater weight that to ignore them or to give them
        equal weight with all the facts is to deny justice.’ ” Id. at 320,
        744 A.2d at 752 (citation omitted). It has often been stated that
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5
    See Appellant’s Brief at 4.



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     “a new trial should be awarded when the jury's verdict is so
     contrary to the evidence as to shock one's sense of justice and
     the award of a new trial is imperative so that right may be given
     another opportunity to prevail.” Brown, 538 Pa. at 435, 648
     A.2d at 1189.

     An appellate court's standard of review when presented with a
     weight of the evidence claim is distinct from the standard of
     review applied by the trial court:

       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.
       Brown, 648 A.2d at 1189. 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. Commonwealth v.
       Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). 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.
     Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).

     This does not mean that the exercise of discretion by the trial
     court in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court's discretion, we have
     explained:

       The term “discretion” imports the exercise of judgment,
       wisdom and skill so as to reach a dispassionate conclusion
       within the framework of the law, and is not exercised for
       the purpose of giving effect to the will of the judge.
       Discretion must be exercised on the foundation of reason,
       as opposed to prejudice, personal motivations, caprice or
       arbitrary actions. Discretion is abused where the course
       pursued represents not merely an error of judgment, but
       where the judgment is manifestly unreasonable or where
       the law is not applied or where the record shows that the
       action is a result of partiality, prejudice, bias or ill-will.


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     Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v.
     S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85
     (1993)).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).

     In denying Walker-Womack’s post-sentence motion for a new trial

based upon his weight of the evidence claim, the Honorable Barbara A.

McDermott reasoned:

     [Walker-Womack] argues that Pittman[’s] and Shelton’s
     testimony is unbelievable because each witness agreed to testify
     against [Walker-Womack] in exchange for a USSG § 5K1.1
     downward departure from the Federal Sentencing Guidelines. At
     the time of trial, both Pittman and Shelton awaited sentencing
     for their RICO convictions. At trial, both Pittman and Shelton
     testified that [Walker-Womack] murdered the decedent at the
     behest of his co-defendant, Warren Stokes, in order to advance
     within the Harlem Boys organization. During cross-examination,
     trial counsel sought to impeach both Pittman[’s] and Shelton’s
     credibility by thoroughly interrogating each witness about his
     cooperation agreement with the federal government. Through
     this line of questioning, trial counsel successfully elicited to the
     jury that both witnesses faced a maximum penalty of life
     imprisonment and that a USSG § 5K1.1 departure afforded them
     the possibility of early release. Ultimately, the jury had an
     opportunity to observe the witnesses and assess their credibility
     as they maintained and repeated their version of events.

     Pittman[’s] and Shelton’s testimony is corroborated by the
     eyewitness testimony of Allen Bryant, Katora Wilson Bush,
     Gerald Bush and Amirajh Wilson. Katora Wilson Bush testified
     that a person fitting [Walker-Womack’s] description dressed in a
     black hoodie was pacing near decedent’s location immediately
     prior to the murder. Bryant and Amirajh Wilson each testified
     that a skinny teenager, approximately 5’7” or 5’8” and wearing a
     black hoodie, approached the decedent from behind and short
     him three times, including in the back of the head. Bryant
     further testified that there was animosity between the decedent
     and residents of another block. Katora Wilson Bush, Gerald
     Bush, and Amirajh Wilson each witnessed a person fitting
     [Walker-Womack’s] description flee the murder scene. That the


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      jury chose to believe Pittman[’s] and Shelton’s testimony,
      especially considering the corroborating evidence, does not
      shock this Court’s conscience. See Commonwealth v. Holley,
      945 A.2d 241, 246 (Pa. Super. 2008) (the finder of fact is free to
      believe the testimony of Commonwealth witnesses and free to
      disregard the testimony of others).

      [Walker-Womack] further avers that, because Thomas Adams
      recanted his out of court police statement on the witness stand,
      that his verdict is against the weight of the evidence. In
      November 2014, Adams was incarcerated in Cell 49 of the
      Philadelphia Industrial Correctional Center, next to [Walker-
      Womack] at Cell 50. At that time, [Walker-Womack] told Adams
      the he was incarcerated for a shooting and that, on the night of
      the murder, [Walker-Womack] wore a black hoodie pulled up
      over his head and ambushed the decedent, shooting him in the
      head, neck, and back with a .38 Special revolver.         These
      conversations were memorialized in Adams’ police statement. At
      trial, Adams claimed that he fabricated his entire statement in
      order to secure favorable treatment by law enforcement, having
      used [Walker-Womack’s] discovery to aid his narrative.

      The jury was free to believe Adams’ statement to police,
      notwithstanding his attempt to recant at trial. Adams’ out of
      court statement that [Walker-Womack] wore a black hoodie
      before shooting the decedent is corroborated by Allen Bryant’s
      eyewitness testimony, and Pittman[’s] and Shelton’s testimony
      corroborates the type of weapon [Walker-Womack] used. Even
      if the jury chose not to believe Adams’ statement, the combined
      weight of Pittman[’s], Shelton[’s], and the eyewitnesses’
      testimony strongly supports a guilty verdict. Again, the jury’s
      verdict does not shock the Court’s sense of justice.

Trial Court Opinion, 7/25/2016, at 6-8 (citations to record omitted).

      Having independently reviewed the certified record, we find no abuse

of discretion in the trial court’s ruling.   It bears repeating that the jurors

heard all the impeachment testimony Walker-Womack cites in this appeal

and opted to reject it, as they are permitted to do.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2017




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