J-S75036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TYREE DOCKERY,

                            Appellant                No. 1423 EDA 2014


          Appeal from the Judgment of Sentence entered April 11, 2014,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-0004934-2012


BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED DECEMBER 04, 2014

        Tyree Dockery (“Appellant”) appeals from the judgment of sentence

imposed after a jury convicted him of third degree murder, firearms not to

be carried without a license, and possession of an instrument of crime.1 We

affirm.

        The trial court summarized the pertinent facts and procedural history

as follows:
              On December 12, 2005, at approximately 11:30 p.m.,
        [Appellant] Tyree Dockery, and Denzel Deverteuil were standing
        at a bus stop with friends on “G” Street in Philadelphia. Juan
        Hayes parked his blue Chevy Caprice station wagon and
        approached Deverteuil demanding a fistfight over the late
        repayment of a loan. Both agreed it would be a fair fistfight
        without weapons. Hayes opened his jacket to confirm his lack of
        a weapon. Hayes and Deverteuil fought for five minutes before
____________________________________________


1
    18 Pa.C.S.A. §§ 2502, 6106 and 907.
J-S75036-14


     Deverteuil refused to fight any longer and walked off. Hayes
     told Deverteuil the fight was not over and that he would be back.

           Hayes went to pick up his brother-in-law, the decedent,
     Cleo Flynn, explaining that he needed Flynn to serve as back up.
     Hayes and Flynn, without weapons, returned to the 4600 block
     of “G” Street. As Hayes was parking, Deverteuil walked away
     down the block. Deverteuil saw a man resembling [Appellant]
     cross his path, running in the direction of Hayes and Flynn.

            At 11:52 p.m., immediately after Hayes and Flynn exited
     their vehicle, [Appellant] appeared from behind a car and fired
     three to four rapid shots at Hayes and Flynn. Both Hayes and
     Flynn fell to the ground. Hayes remained on the ground until the
     firing stopped.

            When Hayes became aware that Flynn was not moving, he
     put Flynn in the passenger seat of his station wagon and drove
     towards the hospital. While en route to the hospital, Hayes
     flagged down a police car on Hunting Park Avenue. Fire rescue
     transported Flynn to Temple University Hospital where he was
     pronounced dead from a single gunshot wound to the head at
     12:31 a.m. The Medical Examiner recovered a nine millimeter
     bullet from Flynn’s body.

           On December 13, 2005, at 12:50 a.m., Crime Scene Unit
     Technician Karen Auerweck arrived at the scene of the murder.
     Auerweck recovered three fired cartridge casings (FCCs) and one
     bullet fragment from the scene. That same day, Crime Scene
     Officer Fidler recovered bloody clothing on the front passenger
     seat of Hayes’ vehicle and a bullet that was lodged in the
     vehicle’s door.

            According to Police Officer Norman DeFields, an expert in
     firearms identification, the three FCCs recovered from the scene
     were all nine millimeter Lugers manufactured by Federal. These
     FCCs were consistent with being fired from the same firearm as
     the shape of the firing pin that struck the primer of each FCC
     had the same rectangular shape. [sic] The bullets recovered
     were all nine millimeter. The bullets were consistent with being
     fired from a nine millimeter semiautomatic handgun.

            During the summer of 2011, [Appellant] and William Razor
     visited Sharlita Razor in North Carolina. [Appellant] confessed to

                                   -2-
J-S75036-14


     committing a murder in Philadelphia. [Appellant] admitted he
     had witnessed a fistfight between his friend and another male.
     He claimed that the male had pointed a gun at his friend, but did
     not use it. [Appellant] explained that after seeing this, he went
     into his brother, Tellis Dockery’s house, to arm himself. When
     he came back outside the fight had dispersed.

            Upon hearing a car approach, [Appellant] fired rapidly
     three or four times towards the two males who exited the
     vehicle. [Appellant] admitted that he did not know if the two
     males who exited the vehicle were the same men who had been
     involved in the earlier fistfight. After the shooting, [Appellant]
     retreated to his brother’s house and told [his] brother and his
     brother’s wife what had happened. [Appellant’s] brother called
     their sister and they both arranged for [Appellant] to take a bus
     to Fayetteville, North Carolina the next morning.

           In the summer of 2011, Detective William Kelhower was
     assigned to the case after Dorothy Dixon, [Appellant’s] aunt and
     former Philadelphia Police Officer, called the Philadelphia Police
     Department and informed them she had learned from her
     daughter, Sharlita Razor, that [Appellant] had confessed to a
     shooting in Philadelphia during his recent stay with Sharlita
     Razor and William Razor. Both Sharlita and William Razor gave
     statements to police describing [Appellant’s] confession to the
     murder.

           On December 12, 2011, police re-interviewed Deverteuil.
     In his December 20, 2005 statement to homicide detectives,
     Deverteuil identified the shooter by the nickname “Buddha,”
     describing him as a dark skinned male of average build, about
     six feet tall, with dreadlocks. In 2011, Deverteuil identified
     [Appellant] from a police photo array as the man who shot
     Flynn.

           On January 12, 2012, Detective Kelhower conducted a
     second interview of Hayes. In his December 12, 2005 statement
     to police, Hayes described the shooter as a dark skinned male,
     about twenty to twenty two years old, around six feet tall,
     weighing about 185 pounds, with a wide nose, some facial hair,
     and dreadlocked hair. During the second interview in 2012,
     Hayes identified [Appellant] as the shooter from a police photo
     array.


                                   -3-
J-S75036-14


           Both Hayes and Deverteuil identified [Appellant] as the
      shooter at trial.

            On February 14, 2012, the United States Marshal Service
      arrested [Appellant] in North Carolina. On March 1, 2012, after
      returning to Philadelphia, [Appellant] told Detective Kelhower
      that his nickname was “Buddha.”

Trial Court Opinion, 6/18/14, at 2-5 (citations to notes of testimony

omitted).

      Appellant was charged with the aforementioned crimes, and a jury trial

commenced on January 7, 2014. On January 13, 2014, the jury returned its

guilty verdicts.   Following a hearing on April 11, 2014, the trial court

sentenced Appellant to twenty to forty years of imprisonment for third

degree murder, and a consecutive two and a half to five years for carrying a

firearm without a license, with no further penalty for possessing an

instrument of crime.      This appeal followed.   Both Appellant and the trial

court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE
         CHARGE OF THIRD DEGREE MURDER BECAUSE THE
         COMMONWEALTH FAILED TO DISPROVE BEYOND A
         REASONABLE DOUBT THAT APPELLANT KILLED THE VICTIM
         IN SELF-DEFENSE?

      2. DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION
         BY REFUSING TO CHARGE THE JURY ON THE DEFENSE OF
         SELF-DEFENSE?

Appellant’s Brief at 3.




                                      -4-
J-S75036-14



      In his first issue, Appellant concedes that the evidence was sufficient

to support a verdict of voluntary manslaughter, but not the verdict of third-

degree murder, because the Commonwealth failed to disprove Appellant’s

justification of imperfect self-defense. Appellant’s Brief at 15-21.


      Our standard when reviewing the sufficiency of the evidence is
      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in the light most favorable to
      the Commonwealth as verdict-winner, are sufficient to establish
      all elements of the offense beyond a reasonable doubt. We may
      not weigh the evidence or substitute our judgment for that of the
      fact-finder. Additionally, the evidence at trial need not preclude
      every possibility of innocence, and the fact-finder is free to
      resolve any doubts regarding a defendant's guilt unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. When evaluating the credibility and weight of
      the evidence, the fact-finder is free to believe all, part or none of
      the evidence. For purposes of our review under these principles,
      we must review the entire record and consider all of the
      evidence introduced.

Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006).

      “Third degree murder occurs when a person commits a killing which is

neither intentional nor committed during the perpetration of a felony, but

contains the requisite malice.     Malice is not merely ill-will but, rather,

wickedness of disposition, hardness of heart, recklessness of consequences,

and a mind regardless of social duty.” Commonwealth v. Truong, 36 A.3d

592, 597 (Pa. Super. 2012) (citations omitted); 18 Pa.C.S.A. § 2502.

“Malice may be inferred from the use of a deadly weapon on a vital part of




                                      -5-
J-S75036-14



the victim's body.   Further, malice may be inferred after considering the

totality of the circumstances.” Truong, 36 A.3d at 597 (citations omitted).

      Here, the trial court explained:

             [T]wo eyewitnesses, Hayes and Deverteuil, identified
      [Appellant] as the shooter. Both eyewitnesses gave a physical
      description of the shooter in 2005 and later identified [Appellant]
      as the shooter from a police photo array, Deverteuil in 2011 and
      Hayes in 2012. Hayes and Deverteuil both confirmed those
      identifications at trial. The testimony of [Appellant’s] cousins
      corroborated Hayes’ and Deverteuil’s identifications as
      [Appellant] confessed to a shooting factually identical to Flynn’s
      murder. This evidence is sufficient to establish the identity of
      [Appellant] as the murderer.

            The evidence also established that [Appellant] acted with
      malice. [Appellant] armed himself with a firearm and waited for
      Hayes to return. Although [Appellant] confessed he did not
      know who was emerging from Hayes’ vehicle, he immediately
      began shooting at the two individuals. [Appellant] fired three to
      four shots in rapid succession, shooting Flynn in the head.
      [Appellant] shot Flynn in a vital part of the body; thus malice is
      presumed.

Trial Court Opinion, 6/18/14, at 6-7.

      We agree with the trial court that this evidence, if believed by the jury,

was sufficient to support Appellant’s third-degree murder conviction.

Appellant argues, however, that the evidence supported only a voluntary

manslaughter conviction because the Commonwealth failed to disprove his

justification of imperfect self-defense. The law provides for a conviction of

voluntary manslaughter where a person “knowingly and intentionally kills an

individual” under the unreasonable belief that the killing was justified.

Commonwealth v. Rivera, 983 A.2d 1211, 1218 (Pa. 2009) (citing 18



                                     -6-
J-S75036-14



Pa.C.S.A. § 2503(a) and (b)).     Such “unreasonable belief of self-defense

voluntary manslaughter,” or “imperfect self-defense”, results in a conviction

for the offense of voluntary manslaughter if the jury believes that the

defendant held “an unreasonable rather than a reasonable belief that deadly

force was required to save [his or her] life,” and “all other principles of

justification under 18 Pa.C.S. § 505 ... have been met.” Commonwealth v.

Sanchez, 82 A.3d 943, 980 (Pa. 2013) (citations and internal quotations

omitted).

      The evidentiary elements necessary to prevail on a justification
      defense are that the defendant (a) reasonably believed that he
      was in imminent danger of death or serious bodily injury and
      that it was necessary to use deadly force against the victim to
      prevent such harm; (b) was free from fault in provoking the
      difficulty which culminated in the slaying; and (c) did not violate
      any duty to retreat. [See]18 Pa.C.S. § 505.

Sanchez, 82 A.3d at 980 (citations omitted).

      As the trial court noted, Hayes credibly testified that neither he nor

Flynn “had a weapon on their person at anytime during the night of the

incident.” Trial Court Opinion, 6/18/14, at 8. Moreover, Appellant was not

involved in the initial fight between Hayes and Deverteuil, and the jury could

have reasonably inferred that there was no danger to Appellant as he was

not involved in the confrontation. Id. Additionally, Appellant admitted that

before he began shooting, he did not know if the two men exiting the vehicle

had been involved in the initial confrontation, and that he did not know their

identity at that time. Id. Moreover, as the trial court observed:



                                     -7-
J-S75036-14


             [Appellant] had a sufficient cooling off period, and time to
      retreat as there were about ten minutes between when Hayes
      left the first fight and when he returned to “G” Street. It is clear
      that [Appellant] violated his duty to retreat. Even if [Appellant]
      possibly believed he was in danger after the first fight, a fight
      with which he was not involved, [Appellant] left the scene and
      was in complete safety at his brother’s house. Instead of
      remaining in the house, [Appellant] armed himself with a firearm
      and returned to the scene. Even upon seeing the men exit the
      car on “G” Street, [Appellant] could have decided to re-enter his
      brother’s home. Instead, [Appellant] chose to shoot at strangers
      who were getting out of their parked car on a residential street.

            [Appellant] could not have reasonably believed he was
      ever in imminent danger of serious bodily harm from Hayes or
      Flynn. [Appellant] had no right to use deadly force to repel the
      non-existent threat of danger.

Trial Court Opinion, 6/18/14, at 8-9 (citations to notes of testimony

omitted).

      We find no error in the trial court’s determination. Although Appellant

presented a claim of imperfect self-defense at trial, including testimony that

he believed that Hayes and Flynn intended to confront him and not

Deverteuil on the date of the incident, and that he thought he was in

danger, the jury evaluated the credibility of the witnesses, and rejected

Appellant’s   justification   defense.    Conversely,   the   jury   credited   the

Commonwealth’s evidence, which supported a finding that Appellant did not

act in self-defense, imperfect or otherwise.       We may not reweigh the

evidence or disturb the jury's credibility findings with regard to Appellant’s

imperfect self-defense claim.




                                         -8-
J-S75036-14



      Appellant next argues that the trial court erred in declining to issue a

self-defense instruction to the jury.   Appellant’s Brief at 21-29.   We have

explained:

            Before the issue of self-defense may be submitted to a
      jury for consideration, a valid claim of self-defense must be
      made out as a matter of law, and this determination must be
      made by the trial judge. Such a claim may consist of evidence
      from whatever source. Such evidence may be adduced by the
      defendant as part of his case, or conceivably, may be found in
      the Commonwealth's own case in chief or be elicited through
      cross-examination.    However, such evidence from whatever
      source must speak to three specific elements for a claim of self-
      defense to be placed in issue for a jury's consideration.

            Thus, as provided by statute and as interpreted through
      our case law, to establish the defense of self-defense it must be
      shown that[:] a) the slayer was free from fault in provoking or
      continuing the difficulty which resulted in the slaying; b) that the
      slayer must have reasonably believed that he was in imminent
      danger of death or great bodily harm, and that there was a
      necessity to use such force in order to save himself therefrom;
      and c) the slayer did not violate any duty to retreat or to avoid
      the danger.

            If there is any evidence from whatever source that will
      support these three elements then the decision as to whether
      the claim is a valid one is left to the jury and the jury must be
      charged properly thereon by the trial court.

Commonwealth v. Mayfield, 585 A.2d 1069, 1070–71 (Pa. Super. 1991)

(en banc) (citations omitted).

      Upon review, we find no error in the trial court’s determination that

Appellant failed to present a valid claim of self-defense as a matter of law.

Appellant failed to present evidence that he was free from fault, that he

reasonably believed that he was in imminent danger of death or great bodily

                                     -9-
J-S75036-14


harm and that there was a necessity to use such force to save himself, and

that he did not violate any duty to retreat or to avoid the danger.

Accordingly, the trial court’s refusal to issue a self-defense instruction did

not constitute an abuse of discretion. For the foregoing reasons, we affirm

the judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014




                                    - 10 -
