J-S08006-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                : IN THE SUPERIOR COURT OF
                                             :      PENNSYLVANIA
                   Appellee                  :
                                             :
            v.                               :
                                             :
WAYNE JAMES,                                 :
                                             :
                   Appellant                 : No. 704 EDA 2014

           Appeal from the Judgment of Sentence October 7, 2013,
                Court of Common Pleas, Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0014092-2011,
             CP-51-CR-0014093-2011, CP-51-CR-0014094-2011,
           CP-51-CR-0014095-2011 and CP-51-CR-0014096-2011

BEFORE: DONOHUE, WECHT and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED FEBRUARY 13, 2015

      Appellant, Wayne James (“James”), appeals from the judgment of

sentence   following   his    convictions   for   murder   in   the   first   degree,

18 Pa.C.S.A. § 2502, and four counts of aggravated assault, 18 Pa.C.S.A.

§ 2702.    James challenges the trial court’s finding that the police had

probable cause to arrest him and the sufficiency of the evidence in support

of the murder conviction. For the reasons that follow, we affirm.

      The trial court summarized the relevant factual background of the case

as established at trial:

            Before midnight on June 25, 2011, [James] entered
            the Genesis Tavern and ordered a bottle of Guinness
            from the bar.6 Notes of Testimony (N.T.) 10/3/2013
            at 47. After having another drink and smoking a
            cigarette at the bar, [James] was asked by the
            security personnel at the Genesis Tavern to leave.
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          N.T. 10/2/2013 at 220-21.        [James] refused to
          cooperate; one of the bouncers dragged [James] by
          his upper body while he held “his feet in place on the
          ground so that he would not be walking.” N.T.
          10/1/2013 at 89-90. Jerrell Johnson, one of the
          bar’s patrons, stated, “He was not going out
          willingly.” Id. at 163.

          Once he was removed from the bar, [James] jumped
          in the air and ran off toward a dark-colored car. N.T.
          10/2/2013 at 80. Albert Saboleh, the manager on
          duty that night, noticed that the security personnel
          did not return to the bar immediately after ejecting
          [James]; Mr. Saboleh exited the bar and heard the
          man who had just been thrown out yell, “I’ll be back”
          or a similar phrase. N.T. 10/3/2013 at 113-14.
          [James] then entered his car and sped off, nearly
          crashing into another car. N.T. 10/2/2013 at 80-81.

          Approximately ten to fifteen minutes later, [James]
          returned to the area and opened fire as he
          approached the bar. Id. at 83-84. Security guard
          Curtis Aiken was positioned outside of the bar,
          checking   identification  cards,  when     [James]
          returned:

                MR. AIKEN: [W]hen you first came into
                the bar, you had a two-piece dress set
                [sic]. When you came back, you had a t-
                shirt on. When I caught vision of you,
                it’s when the first shot – when the first
                couple of shots case, I ran behind the
                trash compactor. I lifted my head up,
                pow, and I was shot. It’s nothing hard.
                The way – how the corner is shaped, you
                could see. And you have eyes, you could
                see. It’s just plainly in view.

          Id. at 113.

          [James] walked through the front door of the
          Genesis Tavern, stood in the doorway and continued
          to fire his gun. Id. at 94. “After he delivered the



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          shots, he went in the middle of the street and
          jumped in the air a few [] more times. After he did
          that, he marched up and then he ran back down the
          street to where his car was at.”7 Id. at 84. As soon
          as [James] reentered his car, Aiken ran into the bar
          to tend to the injured patrons. Id. Inside, Aiken
          found a man, Carl Sharper, between the bar and the
          kitchen, lying on the floor with a gunshot wound to
          the middle of his head. N.T. 10/2/2013 at 85.
          Assistant Medical Examiner Dr. Marlon Osbourne
          determined that the bullet fractured Mr. Sharper’s
          head, passed through his right cerebral hemisphere
          and caused immediate death. Id. at 33-34.

          In addition to Mr. Sharper, at least four other
          individuals suffered gunshot wounds. Inside the bar,
          Aiken found Mr. Saboleh,8 who had suffered a
          gunshot wound to his foot. Id. at 85. With help
          from others, Aiken lifted Mr. Saboleh and placed him
          in a police car, which transported him to the
          hospital. Id. at 86. Tamatha Robinson, a patron
          inside the bar, suffered six gunshot wounds. N.T.
          10/1/2013 at 93-94. Jerrell Johnson was struck by
          three bullets, one of which shattered his clavicle. Id.
          at 166, 177. And, lastly, Charlotte McKee was hit by
          three bullets to her leg and foot. N.T. 10/2/2013 at
          45-46.


          6
            Scott Copeland, Latent Fingerprint Expert from the
          Philadelphia Police Department, compared [James’]
          fingerprints to a print lifted from a Guinness bottle
          found inside the Genesis Bar and found it to be a
          match. N.T. 10/2/2013 at 157.
          7
            Aiken’s identification of [James] as the shooter was
          bolstered by the testimony of Detective James
          Dunlap, a member of the Digital Imagery Response
          Team (DIVRT). Detective Dunlap pieced together
          footage from various security cameras which
          indicated that the person who returned to the bar
          and opened fire was the same person who had been
          ejected earlier. “If you look and watch the wrist


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            right here on the stills, in appears to be very similar,
            the same piece of jewelry on the shooter’s wrist that
            was worn by the male that was previously thrown
            out.” N.T. 10/2/2013 at 223.
            8
               Aiken referred to Albert Saboleh as “Al.”       N.T.
            10/2/2013 at 85.

Trial Court Opinion, 8/5/2014, at 2-3.

      James fired his court-appointed counsel on the first day of trial and

demanded to represent himself. The trial court, after cautioning him against

it, agreed to James’ self-representation, but refused to permit any delay or

postponement for preparation.      After a three-day trial, a jury convicted

James of the above-referenced crimes. The trial court sentenced him to the

mandatory term of life in prison without the possibility of parole.    Newly

appointed counsel filed post-sentence motions, which the trial court denied

on February 27, 2014. This timely appeal followed, in which James raises

two issues for our consideration and determination:

      1.    The trial court erred in ruling that police had
            probable cause to arrest [James] on July 28, 2011.
            Stated differently, the trial court erred by denying
            James’ motion to suppress a statement James made
            subsequent to his arrest where the arresting officers
            lacked probable cause to arrest him.

      2.    The Commonwealth failed to prove beyond a
            reasonable doubt that [James] had the specific intent
            to murder Carl Sharper.

James’ Brief at 1-2.




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      For his first issue on appeal, James contends that the trial court erred

in denying his motion to suppress a statement he made subsequent to his

arrest. James argues that the evidence the Commonwealth presented at the

June 6, 2013 suppression hearing did not establish that the police had

probable cause to effectuate a warrantless arrest, and that as a result his

subsequent statement to police should have been suppressed.

      When addressing a trial court's denial of a suppression motion, our

standard of review is whether its factual findings are supported by the

evidence presented at the suppression hearing and whether its legal

conclusions drawn from those facts are correct.     In the Interest of L.J.,

79 A.3d 1073, 1088–89 (Pa. 2013). In so doing, we must consider only the

Commonwealth’s evidence and so much of the evidence of the defense as

remains uncontradicted.     Commonwealth v. Davis, 102 A.3d 996, 999

(Pa. Super. 2014).

      The parties agree that the police needed probable cause to arrest

James.   Probable cause is established when “the facts and circumstances

which are within the knowledge of the officer at the time of the arrest, and

of which he has reasonably trustworthy information, are sufficient to warrant

a man of reasonable caution in the belief that the suspect has committed or

is   committing   a   crime.”   Thompson,     985   A.2d   at   931   (quoting

Commonwealth v. Rodriguez, 585 A.2d 988, 990 (Pa. 1991). We require

only a “probability, and not a prima facie showing, of criminal activity.”



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Illinois v. Gates, 462 U.S. 213, 235 (1983).       In determining whether

probable cause exists, we apply a totality of the circumstances test.

Commonwealth v. Clark, 735 A.2d 1248, 1252 (Pa. 1999).

     The trial court reached the following factual findings based upon the

evidence introduced at the suppression hearing:

           [A]round 8:00 PM on June 27, 2011, a male who
           identified himself as Leonardo Waysone approached
           Philadelphia Police Officer Jonathan Switaj and his
           partner, Officer Pierre, as they were conducting a car
           stop on the 4300 block of Wissahickon Avenue. N.T.
           6/6/2013 at 9-13, 98. Mr. Waysone told the officers
           that he had information about the shooting that had
           taken place at the Genesis Tavern. Id. at 15, 98. As
           Mr. Waysone seemed “kind of nervous,” the officers
           asked Mr. Waysone to reconvene with them behind a
           bus depot, away from the busy street. Id. at 11, 98.
           There, Mr. Waysone stated that his cousin, [James],
           was the shooter at the Genesis Tavern and that
           [James] lived with his uncle at 10th and Wagner
           Streets in Philadelphia, PA. Id. at 15, 98-99. Mr.
           Waysone explained to the officers that he saw
           surveillance video of the incident at the Genesis
           Tavern on the news and recognized his cousin from
           that video. Id. at 18, 102; Exhibit M-5.11

           Detective William Holmes, who had been made
           aware of Mr. Waysone’s statements to police and
           had personally watched the surveillance video from
           inside the Genesis Tavern, asked Detective Derrick
           Jacobs to survey the area near 10th and Wagner
           Streets for a black Volvo.12 N.T. 6/6/2013 at 57, 99.
           Detective Holmes had also provided Detective Jacobs
           with some information about [James] – either a
           physical description or [James’] name along with a
           police photo. Id. at 38, 60, 100. Detective Jacobs
           traveled to that area of the city and found a black
           Volvo in front of 1114 Wagner Street. Id. at 58, 99.
           While there, Detective Jacobs observed a man, who



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            appeared to be [James], exit from a silver-colored
            Suzuki and enter the premises of 1114 Wagner
            Street. Id. at 37, 99-100. Detective Jacobs relayed
            that information to Detective Holmes, who prepared
            a search warrant to search for [James] as well as
            certain items inside of 1114 Wagner Street.13 At 8
            AM, Detective Holmes arrived with U.S. Marshals and
            executed the search warrant. Id. at 63, 100. Inside
            the residence at 1114 Wagner Street, the law
            enforcement personnel found [James] and took him
            into custody. N.T. 6/6/2013 at 64, 100.


            11
                Although this [c]ourt did not explicitly refer to
            Exhibit M-5 in its findings of fact, this exhibit was a
            source upon which this [c]ourt relied in making
            certain factual findings. Exhibit M-5 was the sole
            source for some facts that this [c]ourt found: that
            Mr. Waysone gave a statement to Detectives
            Spotwood and Mangioni at 9:45 PM on June 27,
            2011; that that Mr. Waysone told officers that he
            saw the surveillance video from the Genesis Tavern
            on the news and, from that video, recognized
            [James] at the shooter. N.T. 6/6/2012 at 98-102.
            This exhibit was moved into evidence during the
            hearing on the motion to suppress. Id. at 89.
            12
                 Exhibit M-5 reflects that Mr. Waysone told the
            police that [James] drives a “black four door
            Volvo[.]”
            13
                 Since this location was not [James’] known
            residence, a search warrant was required before the
            police could breach those premises to seize [James].
            …

Trial Court Opinion, 8/5/2014, at 4-5.

      In its written opinion pursuant to Rule 1925(a) of the Pennsylvania

Rules of Appellate Procedure, the trial court determined that the tip provided

by Mr. Waysone provided the police with probable cause to arrest James.


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The trial court based its decision on four factors: (1) his familial connection

to James strengthened his identification; (2) the implication of his own

family member subjected Mr. Waysone to potential legal and/or practical

consequences; (3) his cooperation with the police; and (4) the content of

the tip reflected familiarity with James’ affairs.             Id. at 7-8.       On appeal,

James argues that Mr. Waysone’s tip was not sufficient, as the police

accepted it without developing sufficient corroborating evidence of the

information he provided or otherwise inquiring further into his credibility.

James’ Brief at 16.

         Based upon our review of the certified record, we conclude that Mr.

Waysone’s tip provided the police with probable cause to arrest James. In

Commonwealth v. Washington, 63 A.3d 797 (Pa. Super. 2013), this

Court recently reaffirmed that the police may, in the absence of special

circumstances,        assume      that    identified      citizens   who     report      their

observations     of    criminal     activity   are      trustworthy.       Id.    at     803;

Commonwealth            v.     Gutierrez,      36       A.3d    1104,      1108       (2012);

Commonwealth v. Hayward, 756 A.2d 23, 36 (Pa. Super. 2000)

(“Identified citizens who report their observations of criminal activity to the

police    are   assumed      to   be     trustworthy,    in    the   absence     of    special

circumstances.”).      A known informant places himself at risk of prosecution

for filing a false claim if the tip is untrue, unlike an unknown informant, who

faces no such risk. Id. When an identified third party provides information



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to the police, we must examine the specificity and reliability of the

information provided.   Id.;   Commonwealth v. Barber, 889 A.2d 587,

593–94 (Pa. Super. 2005).

      In the present case, Mr. Waysone voluntarily approached the police,

identified himself, and provided specific information regarding his belief that

James had committed the crimes at the Genesis Tavern, including his

identification of James (his cousin) from a video of the shootings he had

seen on the TV news.       He also provided detailed information regarding

James, including where he lived and the type of car he drove – which

information the police corroborated before making the arrest.        Under the

circumstances, the police could presume Mr. Waysone to be trustworthy,

and their (albeit limited) independent investigation into the information he

provided further strengthened their belief in the reliability of his knowledge

regarding James. No relief is due on James’ first issue on appeal.

      For his second issue on appeal, James challenges the sufficiency of the

evidence presented at trial in support of his conviction for first-degree

murder. James contends that the evidence shows only that he shot wildly

while inside the Genesis Tavern without targeting any particular victim, and

that no evidence established a specific intent to kill Carl Sharper. Instead,

James argues that the “appropriate conviction for [his] random, reckless,

indifferent, and cruel act is third-degree murder, not first-degree.” James’

Brief at 20.



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      Our standard of review when presented with a challenge to the

sufficiency of the evidence supporting a criminal defendant's conviction is as

follows:

            As a general matter, our 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. The 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.

            The Commonwealth may sustain its burden by
            means      of   wholly     circumstantial    evidence.
            Accordingly, the fact that the evidence establishing a
            defendant's participation in a crime is circumstantial
            does not preclude a conviction where the evidence
            coupled with the reasonable inferences drawn
            therefrom overcomes the presumption of innocence.
            Significantly, we may not substitute our judgment
            for that of the fact finder; thus, so long as the
            evidence adduced, accepted in the light most
            favorable to the Commonwealth, demonstrates the
            respective elements of a defendant's crimes beyond
            a reasonable doubt, the appellant's convictions will
            be upheld.




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Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 2013 (Pa. Super.

(2013) (citations and quotation marks omitted)).

      To sustain a conviction for first-degree murder, the Commonwealth

must prove that the defendant acted with the specific intent to kill, that a

human being was unlawfully killed, that the accused did the killing, and that

the killing was done with deliberation.          Commonwealth v. Simpson,

754 A.2d    1264,   1269    (2000),   cert.    denied,    562   U.S.    255    (2000);

Commonwealth v. Hall, 701 A.2d 190, 196 (Pa. 1997), cert. denied,

523 U.S. 1082 (1998). The specific intent to kill distinguishes murder in the

first degree from lesser grades of murder.          Commonwealth v. Smith,

694 A.2d 1086, 1088 (Pa. 1997), cert. denied, 525 U.S. 847 (1998). The

period of reflection required for premeditation to establish the specific intent

to kill “may be very brief; in fact the design to kill can be formulated in a

fraction of a second.      Premeditation and deliberation exist whenever the

assailant   possesses   the   conscious       purpose    to   bring    about   death.”

Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009) (quoting

Commonwealth v. Drumheller, 808 A.2d 893, 910 (Pa. 2002)).

      The Commonwealth may prove the specific intent to kill with

circumstantial evidence. Commonwealth v. Fletcher, 861 A.2d 898, 907

(Pa. 2004). Our Supreme Court has repeatedly held that the use of a deadly

weapon on a vital part of a human body is sufficient to establish the specific



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intent to kill.   See, e.g., Commonwealth v. Randolph, 582 576, 583,

873 A.2d    1277,   1281   (Pa.    2005);     Fletcher,    861   A.2d     at    907;

Commonwealth        v.   McCrae,     832    A.2d   1026,    1030   (Pa.        2003);

Commonwealth v. Rivera, 773 A.2d 131, 135 (Pa. 2001), cert. denied,

535 U.S. 955 (2002); Commonwealth v. Walker, 656 A.2d 90, 95 (Pa.),

cert. denied, 516 U.S. 854 (1995).

      James argues that the evidence at trial shows that he shot “randomly”

and “haphazardly” while inside the bar, and thus did not demonstrate a

specific intent to kill Carl Sharper or anyone else. James’ Brief at 21. Based

upon our review of the entirety of the certified record, we disagree.             No

witness testified at trial that James shooting inside the bar was either

random or haphazard. Instead, all essentially offered the same account –

that without any warning the bar suddenly exploded in a barrage of gunfire.

See, e.g., N.T., 10/1/2013, at 91-94 (Robinson); id. at 166-69 (Johnson);

N.T., 10/2/2013, at 42-46 (McKee); id. at 89 (Aiken); N.T., 10/3/2013, at

47-42 (Kayan); id. at 115 (Saboleh). No witness testified with particularity

regarding the nature of James’ actions during the shooting, including

whether or not he aimed his weapon at specific individuals. James’ current

description of his firing at the bar patrons as “wild,” “random,” and

“haphazard” are his own, and are not grounded upon any evidence of

record.




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       Based upon the evidence presented and given our standard of review,

it was within the province of the jury to conclude that James, having been

removed from the bar and then returning with a weapon, had the specific

intent to kill all the patrons in the bar at whom he directed his fire, including

Carl Sharper.    See Com. ex rel. McCant v. Rundle, 418 394, 396,

211 A.2d 460, 461 (Pa. 1965) (“If McCant, intending to kill, shot into a

crowd, the resulting crime would be first degree murder even if he had never

before seen his eventual homicidal victim.”). Moreover, the Commonwealth

had no burden to prove that James specifically targeted Carl Sharper.

Instead, as the above-cited cases plainly establish, it was sufficient to show

that he used a deadly weapon on a vital part of Mr. Sharper’s body – from

which the jury was entitled to infer that James had the specific intent to kill

him.

       For these reasons, from the evidence presented, the jury could have

concluded that James acted with the specific intent to kill Carl Sharper.

Accordingly, the evidence was sufficient to sustain James’ conviction for

first-degree murder.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/13/2015




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