J-S02034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

TYREE WILSON

                        Appellant                    No. 940 EDA 2014


           Appeal from the Judgment of Sentence of May 9, 2012
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos.: CP-51-CR-0007351-2009
                                        CP-51-CR-0007352-2009


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                        FILED FEBRUARY 17, 2015

      Tyree Wilson appeals the judgment of sentence entered on May 9,

2012. We affirm.

      The trial court set forth the pertinent factual history of this case as

follows:

      [At trial, on May 7, 2012,] Philadelphia Police Officer Robert W.
      Ingram testified that on Monday, February 23rd, 2009, at
      approximately 10:45 p.m., he responded to [a] police radio call
      of a shooting in the area of 1300 10th Street, Philadelphia.
      Officer Ingram was the first unit on scene; he observed a red
      Ford Taurus parked on the curb, he observed bullet strike marks
      on the driver’s side of the car, broken glass littering the ground
      by the driver’s side window, and bullet casings strewn nearby on
      the ground. The area around the vehicle was well lit. Officer
      Ingram observed the two decedents, Hassan Baldwin and
      Daheem White, lying slumped over and motionless in the driver’s
      seat and front passenger seat, respectively. Officer Ingram was
      unable to obtain signs of life for either decedent. Additional
      police units and an ambulance arrived at the scene at
      approximately 10:55 p.m. to revive both decedents, without
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     success. By approximately 11:06 p.m. both Mr. Baldwin and Mr.
     White had already been pronounced dead by paramedics.

     Monique Lewis testified that on the night of February 23, 2009,
     she was walking with her niece, Dominque Parker, from an Asian
     food store near Girard Avenue, and returning to her residence in
     the Harrison Projects, at 10th and Thompson Streets. Ms. Lewis
     stated that in the year preceding the shooting, she saw [Wilson]
     on a semi-regular basis and that [Wilson] had been inside her
     apartment a fair number of times. Ms. Lewis and her niece were
     positioned across the street from the Harrison projects when Ms.
     Lewis witnessed [Wilson], wearing a dark-colored and hooded
     sweatshirt with the hood down, come from the front door of the
     Harrison Projects. [Wilson] then walked around the back of a
     red vehicle parked on the curb and, standing approximately
     within 2.5 feet from the driver’s side door, fired a gun several
     times toward the driver’s side window, which was in an upright
     position. Ms. Lewis and her niece were petrified and remained in
     place for a few moments; then both women ran together toward
     Girard Avenue, while [Wilson] ran in the opposite direction away
     from Ms. Lewis.

     Ms. Lewis contacted the Philadelphia Homicide Detectives, and
     on February 24, 2009, at 11:30 a.m., the morning after the
     shooting, she gave a statement to Philadelphia Homicide
     Detectives Morton and Holmes; in that statement she
     unequivocally identified [Wilson] from an eight-person photo
     array as the shooter. Ms. Lewis also testified that she identified
     [Wilson] as the shooter on or about June 3, 2009, at the
     preliminary hearing in the instant matter.

     Police Officer Michael Maresca, Badge No. 5284, currently
     assigned to the Philadelphia Police Crime Scene Unit, testified
     that on February 23, 2009, he responded to the area of 1350
     North 10th Street at approximately 11:27 p.m. Upon arriving at
     the scene of the shooting, Officer Maresca observed both
     deceased victims, having suffered gunshot wounds, in the front
     of a red vehicle. Officer Maresca recovered ten .40 caliber fired
     cartridge casings [(“FCC”)], all with similar markings and
     coloration. All ten of these casings were located on the ground,
     on the driver’s side of the red vehicle, within six to eight feet of
     the vehicle, suggesting that the shooter was standing “in front of
     the driver’s side and the FCCs would be kicking back to the right
     approximately six to eight feet.” Officer Maresca also recovered
     one 9-millimeter fired cartridge casing, located further away

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     from the vehicle and in a different location from the ten .40
     caliber casings.   The 9-millimeter casing appeared to be
     weathered and not associated with the shooting in this case.

     Officer Maresca also testified that he observed four bullet strike
     marks on the driver’s side of the red vehicle: one such strike
     mark at the base of the driver’s side window frame, another
     strike mark at the base of the driver’s door frame, another strike
     mark near the driver’s door handle, and another strike mark on
     the roof of the car, above the driver’s door. Officer Maresca also
     testified that he recovered four copper jacketed projectiles from
     the vehicle and submitted the same to the Firearms
     Identification Unit.

     Dr. Sam Gulino, an expert in the field of forensic pathology,
     testified that he examined the bodies of Hassan Baldwin and
     Daheem White. He testified that Mr. Baldwin had sustained a
     total of seven gunshot wounds, which caused Mr. Baldwin’s
     death. He testified that Mr. Baldwin’s wounds were caused by
     bullets traveling from the left side of Mr. Baldwin’s body toward
     the right side of his body, all of which was consistent with a
     shooter firing from the driver’s side of the vehicle. Dr. Gulino
     also noted that Mr. Baldwin had some injuries to his cheek from
     broken glass.

     Dr. Gulino testified that there was no evidence of close range fire
     on Mr. Baldwin’s body, but that if the driver’s side window was in
     the upright position, it would act as a filter and block any
     potential gunshot residue or stippling from appearing around Mr.
     Baldwin’s wounds (for so long as the driver’s side window
     remained intact).      He also opined that the manner of Mr.
     Baldwin’s death was homicide.

     Mr. White had sustained two gunshot wounds, one of which
     alone caused his death. He also testified that there was no
     evidence of close range gunfire on Mr. White’s body and that
     bullet wounds sustained by Mr. White were consistent with a
     shooter firing from the driver’s side of the car. Dr. Gulino opined
     that the manner of Mr. White’s death was a homicide.

     Dr. Gulino testified that he examined the clothing of both Mr.
     Baldwin and Mr. White and that he did not find any gunpowder
     or soot on any article of clothing.       While no evidence of
     gunpowder stippling was found on either decedent’s skin, Dr.
     Gulino stated that if the muzzle of a firearm was within two to


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       three feet of the decedent’s skin and the driver’s side window
       was broken, he would expect to see evidence of close range fire.

       Police Officer Raymond Andrejczak, an expert in the field of
       firearms identification, testified that he examined, inter alia,
       nine [] .40 caliber bullets, and ten [] .40 caliber fired
       cartridge casings recovered during the investigation of the
       instant manner.      Two of the .40 caliber bullets showed
       evidence of the glass particles; this finding is consistent with
       those bullets having travelled through glass after being fired.
       Officer Andrejczak also testified that while he was unable to
       determine whether any of the nine .40 caliber bullets were
       fired from the same gun, he was able to determine that all
       ten [] .40 caliber fired cartridge casings were fired from the
       same firearm. Officer Andrejczak opined that the positioning
       of the ten .40 caliber fired cartridge casings at the scene of
       the shooting was consistent with the typical ejection pattern
       of a semi-automatic handgun having been fired from the
       driver’s side of the vehicle. No firearm was submitted to
       Officer Andrejczak for testing.

Trial Court Opinion (“T.C.O.”), 8/26/2014, at 2-6 (citations to the notes of

testimony and some footnotes omitted).

       On May 9, 2012, following a bench trial, the trial court found Wilson

guilty of two counts of first-degree murder1 and one count of possession of

an instrument of crime (“PIC”).2          The trial court sentenced Wilson to two

consecutive life sentences on the murder convictions, and two and one-half

to five years’ incarceration on the PIC charge.        On May 21, 2012, Wilson

filed a timely post-sentence motion. On September 6, 2012, the trial court

denied Wilson’s post-sentence motion.            On March 28, 2014, Wilson was
____________________________________________


       1
           18 Pa.C.S. § 2501.
       2
           18 Pa.C.S. § 907.



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granted leave to appeal nunc pro tunc. On March 29, 2014, Wilson filed a

timely notice of appeal.     On April 4, 2014, Wilson filed a statement of

matters complained pursuant to Pa.R.A.P. 1925(b).         On August 26, 2014,

the trial court filed its opinion pursuant to Pa.R.A.P. 1925(a).

      Wilson raises the following question for our review:

      Did the trial court err in denying [Wilson’s] post-sentence motion
      because [Wilson’s] conviction is against the weight of the
      evidence in that [Wilson] was only identified by one witness who
      made crucial errors in her testimony?

Brief for Wilson at 4.

      We review a weight of the evidence claim for an abuse of discretion.

When assessing a weight claim, we apply the following standards:

      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, 744 A.2d 745,
      751-52 (Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177,
      1189 (Pa. 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, 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. (citation omitted). It
      has often been stated that “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,
      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

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         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, 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, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.2d 1049, 1054-55 (Pa. 2013) (citations

modified).

      Our task in such a challenge is as follows:

      To determine whether a trial court’s decision constituted a
      palpable abuse of discretion, an appellate court must examine
      the record and assess the weight of the evidence; not however,
      as the trial judge, to determine whether the preponderance of
      the evidence opposes the verdict, but rather to determine
      whether the court below in so finding plainly exceeds the limits
      of judicial discretion and invaded the exclusive domain of the
      jury. Where the record adequately supports the trial court, the
      trial court has acted within the limits of its judicial discretion.

Brown, 648 A.2d at 1190 (citation omitted).

      Wilson argues that Lewis’ testimony, which placed Wilson within two

and one-half feet of the vehicle, was so contrary to the ballistics evidence as

to shock the conscience of the court and require a new trial.      Wilson first

contends that the lack of stippling on the bodies of Mr. Baldwin and Mr.

White (the “Decedents”) is inconsistent with Lewis’ testimony, thereby



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casting doubt upon the credibility of her entire testimony.        Wilson next

argues that the location of the bullet strike marks on the red Ford Taurus is

also inconsistent with Lewis’ testimony, again casting doubt upon Lewis’

entire testimony.   Brief for Wilson at 10-12.   Wilson maintains that these

inconsistences create rebuttable errors as to the distance that the shooter

was from the car in which the Decedents were sitting, thereby undermining

her entire testimony. Therefore, Wilson argues that it was error for the trial

court to deny his Post-Sentence Motion. Brief for Wilson at 8.

      The Commonwealth responds that Wilson is not entitled to relief. The

Commonwealth argues that Wilson improperly ignores key aspects of the

expert testimony and physical evidence that bolsters Lewis’ testimony. Brief

for the Commonwealth at 6.      The Commonwealth contends that the trial

court’s verdict was fully supported by this evidence at trial and did not shock

the conscience of the court, as is required for a new trial.       Brief for the

Commonwealth at 8. Therefore, the Commonwealth argues, the trial court

did not abuse its discretion in denying Wilson’s motion.          Brief for the

Commonwealth at 11.

      In analyzing the facts presented, the trial court found Lewis’ testimony

largely consistent with the ballistics evidence. The court acknowledged that

the upright position of the glass window between the gun and the victims’

skin could have prevented any stippling from occurring.          The court also

noted that a lack of stippling on the Decedents’ skin could be a result of

Wilson standing just outside the two-to-three foot range required for the

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stippling phenomenon to occur.    T.C.O. at 8-9.    Additionally, Lewis never

claimed to have witnessed the bullets enter the vehicle. Therefore, the court

found the locations of the bullet marks on the vehicle consistent with Lewis’

testimony and the ballistics evidence.        T.C.O. at 10.     The trial court

concluded that the weight of the evidence was not contrary to the verdict

and would not shock one’s sense of justice.

     Having revisited the trial court’s findings, we turn now to the record.

Lewis testified that, on the night of February 23, 2009, she witnessed

Wilson, who was standing approximately two and one-half feet away from

the driver’s side door, fire multiple rounds into the vehicle where the two

Decedents were later found. Notes of Testimony (“N.T.”) 5/8/2012, at 10-

12, 39. Lewis testified that, on the night in question, she was walking back

to her residence in the Harrison Projects. N.T. at 8-9. Lewis stated that she

witnessed Wilson come out from the front door of the Harrison Projects and

approach the driver side door of a red vehicle that was parked at the curb.

Id. at 9-13, 39, 43-44.       Lewis testified that Wilson, while standing

approximately two and one-half feet away from the driver’s side door, fired a

gun multiple times towards the driver’s side window.          Id. at 10-12, 39.

Lewis remained in a petrified state for a moment, and then ran away from

the crime scene while Wilson ran in the opposite direction away from Lewis.

Id. at 14-16, 17-18. On February 24, 2009, at 11:30 a.m., Lewis gave a

statement to two Philadelphia homicide detectives in which she unmistakably




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identified Wilson as the shooter from an eight-person photo array.       Id. at

23-24.

      Officer Maresca testified that on the night in question he observed

both Decedents in the front of a red vehicle having suffered multiple gunshot

wounds.   Id. at 49.   Officer Maresca recovered ten .40 caliber cartridges

located on the ground within six to eight feet of the driver’s side of the

vehicle. Id. at 50-51, 55. Additionally, Officer Maresca observed four bullet

strike marks on the driver’s side of the vehicle. Id. at 56, 57, 61.

      Dr. Gulino, a forensic pathologist, testified that the bullet wounds

sustained by both Decedents were consistent with a shooter firing from the

driver’s side of the car. Id. at 89, 92, 96. Dr. Gulino further testified that

there was no evidence of stippling marks located around the bullet wounds.

Id. at 79-80.   However, Dr. Gulino added that if the driver’s side window

was in the upright position, it would act as a filter and prevent any stippling

or gunshot residue from appearing.      Id.   Additionally, Dr. Gulino testified

that he did not recover any gunpowder or soot on any article of clothing.

Id. at 101. Dr. Gulino stated that if the muzzle of the firearm was within

two to three feet of the Decedent and the driver’s side window was broken,

he would expect to see evidence of close range fire. Id. at 99-100.

      Officer Andrejczak, an expert in the field of firearms identification,

testified that he recovered cartridge cases at the scene. Id. at 14, 17, 29-

30.   Officer Andrejczak testified that the evidence is consistent with the

bullets having travelled through glass. Id. at 38. Additionally, he testified

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that the positioning of the fired cartridge casings was consistent with bullets

travelling from the driver’s side of the vehicle. Id. at 30.

      Wilson’s argument relies upon alleged inconsistences between Lewis’

testimony and the physical evidence from the crime scene.        However, the

ballistics evidence corroborated Lewis’ testimony. The factfinder was free to

believe the testimony presented and to conclude that Wilson was the

shooter.   The record adequately supports the trial court’s verdict, and we

find no abuse of discretion.    Accordingly, Wilson’s weight of the evidence

challenge fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2015




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