J-S64004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DENNIS FULTON

                            Appellant                 No. 3791 EDA 2015


       Appeal from the Judgment of Sentence entered November 6, 2015
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0003414-2014


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                        FILED DECEMBER 13, 2016

        Appellant, Dennis Fulton, appeals from the judgment of sentence

imposed on November 6, 2015 in the Court of Common Pleas of Philadelphia

County after a jury convicted him of first-degree murder, robbery,

possessing instruments of crime (“PIC”), and two violations of the Firearms

Act (“VUFA”).1      Appellant contends that the evidence was insufficient to

support the verdicts. Alternatively, Appellant argues that the verdicts were

against the weight of the evidence. Following review, we affirm.

        In its January 28, 2016 Rule 1925(a) opinion, the trial court

summarized the evidence presented at trial, complete with references to the
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(a), 3701, 907, 6106 and 6108, respectively.
J-S64004-16


testimony and evidence received during Appellant’s four-day trial.          Based

upon our own review, we find the trial court’s summary is supported by the

trial transcripts. Therefore, we adopt the trial court’s statement of facts as

our own and incorporate it herein by reference as if fully set forth.        Trial

Court Opinion, 1/28/16, at 2-7. Briefly, Appellant was arrested and charged

with the crimes identified above, all in relation to the shooting death of 61-

year old Rudolph Wilkerson, a “hack driver” who provided unlicensed taxi

rides to Appellant and several other individuals who lived in Appellant’s

neighborhood.   Wilkerson’s body was discovered shortly after midnight on

June 19, 2010 in the roadway near East Wolf Street in a commercial area of

Philadelphia.   Wilkerson’s vehicle was observed shortly thereafter and

secured by police later that morning.

      At Appellant’s trial, significant circumstantial evidence was presented,

including   telephone   records   revealing   several   telephone   calls    from

Appellant’s cell phone to Wilkerson’s cell phone shortly before the murder,

and testimony indicating that in 2008 Aisha Evans, the mother of Appellant’s

two children, purchased a Smith and Wesson revolver—consistent with the

murder weapon—for Appellant and did so in his name because he was

ineligible to be licensed.    Evans and a second witness indicated that

Appellant confessed to the murder, telling Evans he needed money and

telling another witness that he was angry because Wilkerson “disrespected”

Evans.


                                     -2-
J-S64004-16


      At the conclusion of Appellant’s trial, the jury returned verdicts of

guilty as reflected above. The trial court sentenced Appellant to life without

the possibility of parole for the murder conviction, with consecutive

sentences of five to ten years for robbery, one to two years for PIC, and one

to two years for each of the VUFA violations, resulting in an aggregate

sentence of life imprisonment without parole plus eight to sixteen years.

      Appellant filed a timely post-sentence motion. The trial court denied

the motion and this timely appeal followed.      Both Appellant and the trial

court complied with Pa.R.A.P. 1925.        Appellant now asks this Court to

consider two issues:

      1. Is [Appellant] entitled to an [a]rrest of [j]udgment on the
         charge of [m]urder in the [f]irst [d]egree and all related
         offenses as the evidence is insufficient to sustain the verdict?

      2. Is [A]ppellant entitled to a new trial as the verdict was
         against the weight of the evidence?

Appellant’s Brief at 3.

      In Commonwealth v. Mattison, 82 A.3d 386 (Pa. 2013), our

Supreme Court reiterated:

      In reviewing the sufficiency of the evidence, we examine
      whether the evidence admitted at trial, and all reasonable
      inferences drawn therefrom, viewed in the light most favorable
      to the Commonwealth as verdict winner, support the jury’s
      finding of all the elements of the offense beyond a reasonable
      doubt. The Commonwealth may sustain its burden by means of
      wholly circumstantial evidence.

Id. at 392 (citation omitted). Here, the trial court summarized the evidence

in the context of each of Appellant’s convictions and determined that the

                                     -3-
J-S64004-16


evidence was sufficient to support each verdict.       Our examination of the

evidence—including reasonable inferences drawn therefrom—confirms that

the evidence, while circumstantial, supports the jury’s findings of all

elements of each offense beyond a reasonable doubt. Therefore, Appellant’s

first issue fails. We adopt the trial court’s analysis of Appellant’s sufficiency

challenge as our own and incorporate it herein by reference.         Trial Court

Opinion, 1/28/16, at 7-11.

      Appellant also advances an argument that the verdicts were against

the weight of the evidence.          As our Supreme Court explained in

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013):

      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
      “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:




                                      -4-
J-S64004-16


         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).

Id. at 1054-55.

      In his brief, although Appellant “concedes” the strict standard for the

grant of a new trial based on weight of the evidence, he suggests:

      [T]here was no persuasive evidence that would have lead any
      reasonable person to conclude that [Appellant] was guilty and
      that the Commonwealth had proved its case.          Rather, the
      Commonwealth had the jury engage in reckless speculation,
      conjecture and surmise as to what might or might not have
      occurred. Under all of the circumstances, the verdict cannot be
      said to be supported by the weight of the evidence and
      [Appellant] must be awarded a new trial.

Appellant’s Brief at 11-12.     As the trial court recognized, Appellant’s

“argument is virtually identical to [his] sufficiency challenges, and must fail

for the same reasons.” Trial Court Opinion, 1/28/16, at 12. The trial court

explained the basis for its conclusion that the evidence proved the elements




                                     -5-
J-S64004-16


of each charge and determined that “[n]othing about the verdict shocks this

[c]ourt’s conscience.” Id.

      We find no abuse of discretion on the part of the trial court in rejecting

Appellant’s weight claim.      Therefore, Appellant’s second issue fails.   We

hereby adopt and incorporate herein by reference the trial court’s analysis of

this issue. Id. at 11-12. A copy of the trial court’s opinion shall be attached

to this Memorandum. In the event of further proceedings, the parties shall

attach a copy of the trial court’s opinion to their filings.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




                                       -6-
                                                                                                Circulated 11/28/2016 04:46 PM




                              IN THE COURT OF COMMON PLEAS
                         FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                  CRIMINAL TRIAL DIVISION

COMMONWEALTH                OF PENNSYLVANIA                      CP-5 I-CR-0003414-2014


           v.
                                          FILED(                           CP-51-CR-0003414-2014 Comm. v. Fulton. Denms
                                                                                               Opinion

                                              JAN 2 8 -2016 :
DENNIS FULTON
                                      Criminal Appeals U~it                     Ill I II IIIII I I IIIII I I II Ill
                                    First Judicia\ District of PA                        7399830451

                                                    OPINION

McDermott, J.                                                                                    January 28, 20 6

Procedural History

           On January 6, 2014, the Defendant, Dennis Fulton, was arrested and charged with

Murder and related offenses. On November 2, 2015, the Defendant appeared before this Com

and elected to be tried by a jury. On November 6, 2015, the jury returned a guilty verdict of

First-Degree Murder, Robbery, Firearms Not to be Carried Without a License, Carrying a

Firearm on a Public Street in Philadelphia, and Possession of an Instrument of Crime ("PIC").1

           On this same date, this Court imposed the mandatory sentence of life imprisonment

without parole for First-Degree Murder, and consecutive sentences of five to ten years for

Robbery, one to two years for Firearms Not to be Carried Without a License, one to two years

for Carrying a Firearm on a Public Street in Philadelphia, and one to two years for PIC, for a

total sentence of life imprisonment without parole plus eight to sixteen years imprisonment.2

           On November 13, 2015, the Defendant filed a timely Post-Sentence Motion. On

November 18, 2015, this Court denied this motion. On November 30, 2015, the Defendant fil d


I
    The remaining charge was no/le prossed.
2   All sentences run consecutive to the Defendant's sentence in CP-5t-CR-0003189-201    t.




                                                                                                                          I   /
                              -.                                       -·

a timely Notice of Appeal. On December 14, 2015, this Court ordered the Defendant to submi a

Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. I 925(b). On January I

2016, the Defendant filed a timely 1925(b) Statement.

Facts

        On February 7, 2008, Aisha Evans purchased a Smith & Wesson Model 10 .38 Special

revolver, serial number 0424759, for the father of her children, the Defendant Dennis Fulton.

Evans purchased the revolver for the Defendant because he could not buy the gun himself. N.

11/4/2015 at 151-173; N.T. 11/5/2015 at 42-54; Commonwealth Exhibit C-13.

        Prior to the murder, the decedent Rudolph Wilkerson, a 61 year-old neighborhood "hac

driver," provided several unlicensed taxi rides to the Defendant, Evans, and several others livi

in the neighborhood.     During one hack ride, the decedent allegedly flirted with Evans, which

greatly upset the Defendant. N.T. 11/4/2015 at 21-25, 41, 48-49, 153-154.

        On June 17, 2010, the decedent purchased thirty bundles of heroin from Frank Johnson

Jr., a drug dealer who occasionally employed the decedent. Edwin Castro, the decedent's

neighbor, later observed the decedent transport the heroin in his green 1993 Ford Explorer.

11/3/2015 at 11; N.T. 11/4/2015 at 100-105.

        On June 18, 2010, the evening of the murder, the decedent and Roger Aye, the decedei

close friend, socialized and smoked crack cocaine in the decedent's home. While using a "star

67" prefix to conceal his phone number, the Defendant called the decedent three times betwee

11 p.m. and 11 :34 p.m. and received no response. Once the Defendant called the decedent fro       1


his unconcealed number, the decedent immediately returned the Defendant's call and arranged to

pick up the Defendant.    As he was leaving his home, the decedent told Aye that he needed to

pick up a "young boy," referring to the Defendant, near Sixth Street and Emily Street. The



                                                                                                       2
                                .   --...




decedent never returned home. N.T. 11/3/2015 at 103, I 16-117; N.T. I 1/4/2015 at 80-83, 94

96; N.T. 11/5/2015 at 118-119.

        At 12:33 a.m. on June 19, 2010, Officers Brian Egrie and James Bragg responded to a

radio call for an unresponsive male lying on the highway near 16 E. Wolf Street and discovere

the decedent lying in a pool of blood. At 12:51 a.m., medics pronounced the decedent dead at

the scene. N.T. 11/2/2015 at 62-75, 78-82; N.T. 11/5/2015 at 9.

        At approximately 1 a.m. on June 19, auto mechanic John Pilotti observed the decedent'

vehicle illegally parked near the intersection of Seventh and Morris Streets, and called a towin                    r


service the next morning. That morning, Sergeant Kevin Cannon and Officer Melissa Curcio

secured the vehicle and observed interior and exterior bloodstains.             N.T. 11/3/2015 at 67-75;

N.T. 11/4/2015 at 145-149.

        At trial, Dr. Gary Collins, the former Philadelphia Deputy Medical Examiner3 and an

expert in forensic pathology, testified that the decedent suffered fatal, penetrating gunshot

wounds to the back left of the head and the right shoulder. The decedent further suffered a fat l

perforating gunshot wound to the central chest, a non-fatal, perforating gunshot wound to the

mouth, and graze wound behind the right ear." The gunshot wound to the decedent's central

chest exhibited a dense stipple pattern indicative of a contact wound. The trajectory of the

decedent's back left head and right shoulder gunshot wounds were consistent with shots fired

from above and in front of a kneeling decedent. Dr. Collins concluded, to a reasonable degree of

scientific certainty, that the cause of death was homicide by multiple gunshot wounds. Two




3
 Dr. Collins currently serves as Chief Medical Examiner for the State of Delaware.
4
 The trajectory of graze wound behind the right ear and the penetrating wound to the right shoulder indicated tha
both wounds were caused by the same bullet.

                                                                                                                        3
                                                                       -r--,




bullets were recovered from the decedent and turned over to the Philadelphia Police Departme t

Homicide Unit. N.T. 11/5/2015 at 3-25.

       On July 8, 2010, Officer Jacqueline Davis of the Philadelphia Crime Scene Unit search d

the decedent's vehicle and observed a bullet hole in the driver's seat and recovered projectiles

from the rear driver's side door and the driver's side seat belt column. Officer Brian Stark, an

expert in blood splatter analysis, examined the bloodstains in the vehicle and observed

downward flowing bloodstains on the passenger side front door that exhibited significant bloo ,

smear. Blood stains on the dashboard and center console indicated that the decedent crawled

across the front passenger seat before opening the door. Officer Stark further observed heavie

volume drops on the interior panel between the front and rear passenger door, which flowed

downward towards the street below. N.T. 11/3/2015 at 60-63, 77-90; N.T. 11/4/2015 at 219-

231, 235-250; Commonwealth Exhibit C-22-05, C-22-06.

       Officer Stark examined two bloodstains on the highway outside of 16 E. Wolf Street,

marked bloodstains A and B. Bloodstain A exhibited a passive droplet pattern and indicated n

movement from the blood source, consistent with blood flow from the passenger side door.

Bloodstain B, located eleven feet east of bloodstain A, indicated heavy blood flow from the

decedents mouth and demonstrated that the decedent crawled west to east along Wolf Street a er

escaping the truck, smearing blood across the pavement. Blood accumulation on the decedent s

shoes, legs and shirt exhibit a pattern consistent to wiping or smearing bloodstain B. The

decedent's body laid in a pool of blood six feet away from Bloodstain B. N.T. 11/3/2015 at 3

57.




                                                                                                   4
                                   ..   -.....,
                                                                                      -
           Officer Ronald Weitman of the Firearms Investigation Unit, a ballistics expert, conclu ed

that all four bullets recovered in this matter were .38/.357 caliber' and exhibited "five right

twist" rifling markings. Officer Weitman concluded that each bullet was fired from the same

weapon. At trial, Officer Weitman testified that all Smith & Wesson Model 10 .38 Special

revolvers left "five right" markings on their respective bullets. In 2013, Officer Weitman

examined the Smith & Wesson Model 10 revolver belonging to the Defendant and determined

that the weapon fired .38 caliber bullets exhibiting "five right" rifling characteristics. Due to

corrosion and wear on the weapon's barrel, test firing the weapon produced insufficient

microscopic bullet markings to determine whether the recovered projectiles were fired from th

Defendant's gun. N.T. 11/4/2015 at 109-142; Commonwealth Exhibit C-29.

           On August 7, 2010, Detective Kenneth Rossiter interviewed Aye, who stated that he le

the decedent's home at approximately 7 a.m. the morning after the murder. As he travelled

home, Frank Johnson Sr., a neighborhood drug dealer and Johnson Jr. 's father, told Aye that tl e

decedent was murdered over 30 bundles of heroin. Aye said that, the day before the shooting,

Castro saw the decedent transport the heroin in his green Ford Explorer. N.T. 11/4/2015 at 82

84, 102-103; N.T. 11/5/2015 at 121; Commonwealth Exhibit C-6; Defense Exhibit D-3.

           Detective Rossiter recovered the decedent's cell phone and discovered that the

Defendant's 267-271-6664 number was the last call to the decedent's phone. In the hour prior to

the shooting, three calls were made from the Defendant's phone to the decedent's phone using a

"star 67" prefix to conceal the number's identity. The records further revealed that an

unconcealed fourth call was made from the Defendant's phone at 11 :34 p.m., and that a return



5   Officer Weitman testified that .38 and .357 caliber bullets are of the same diameter, but the cartridge ofa .357
caliber bullet is 1/10111 ofan inch longer than the otherwise identical .38 caliber bullet. While a .38 caliber round an
be fired from a .357 magnum pistol, a .357 caliber round cannot be fired from a .3 8 Special.

                                                                                                                       5
call was made two minutes later. N.T. 11/3/2015 at 99-103; I 16-119; Commonwealth Exhibi s

C-49; C-53; C-54A.

       On August 13, 2010, Detectives Rossiter and Nordo interviewed the Defendant, who

confirmed that the 267-271-6664 number belonged to him. The Defendant claimed that his

cousin, Shaku Maven, called the decedent from his phone on the night of the murder. At trial,

Maven testified that he did not use the Defendant's phone on the night of the murder, as he wa

in Darby at that time. N.T. 11/3/2015 at 104-113, 143; Commonwealth Exhibit C-7.

       Two days after his interview with detectives, the Defendant told his cousin Norman

Whitest that police knew that he was the last one to call the decedent and the last person in the

decedent's car. The Defendant told Whitest that he called the decedent for a ride to Evans' ho e

and that he was worried that Maven gave detectives his name. At around the same time period

the Defendant told Evans that he killed the decedent because he needed the money and stole c

from him. N.T. 11/3/2015 at 170-182; N.T. 11/4/2015 at 175-178, 183; N.T. 11/5/2015 at 72

73; Commonwealth Exhibits C-9, C-10.

       Tazmin Willis, the Defendant's close friend, was incarcerated at the time of the

decedent's murder. Upon his release in the summer of 2010, Willis moved into the Defendant s

home at 604 Emily Street. There, the Defendant told Willis that he murdered the decedent

because the decedent had disrespected Evans earlier that summer. The Defendant implored

Willis not to tell the decedent's son that the Defendant murdered his father. N.T. 11/4/2015 at 8-

22; N.T. 11/5/2015 at 66-70; Commonwealth Exhibit C-8.

       On January 8, 2013, Willis provided a statement about the instant matter to state and

federal authorities in exchange for a downward departure on his pending federal robbery and

firearms charges. During the interview, Willis repeated the Defendant's confession and stated



                                                                                                    6
that the Defendant habitually carried a silver Smith & Wesson revolver. N.T. 11/4/2015 at 18

26, 49-52; N.T. 1 I/5/2015 at 28-38, 58-68; Commonwealth Exhibit C-8.

       On March 6, 2013, Special Agent Mangold of the Pennsylvania Attorney General's

Office interviewed the Defendant, whereupon the Defendant stated that Evans purchased a Sm th

& Wesson Model 10 revolver, serial number D424759 on his behalf. The Defendant told Spe ial

Agent Mangold that someone stole the weapon prior to the interview. N.T. 11/5/2015 at 49-5 ;

Commonwealth Exhibit C-12.

       On November 17, 2013, Philadelphia police arrested Carlton Wright and recovered the

silver Smith & Wesson Model 10 revolver, serial number D424759, which previously belonge

to the Defendant. N.T. I I/4/2015 at 141-143; N.T. 11/5/2015 at 66.

Discussion

       On appeal, the Defendant challenges the sufficiency and weight of the evidence for eac

of his convictions.

                                  Sufficiency of the Evidence

       The Defendant argues that the evidence was insufficient to identify the Defendant as th

murderer. Evidence is sufficient to sustain a conviction when, viewed in the light most favora le

to the Commonwealth as verdict winner, the evidence and all reasonable inferences drawn

therefrom support the jury's finding of all the elements of an offense beyond a reasonable dou t.

Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013) (citing Commonwealth v. Montalvo,

956 A.2d 926, 932 (Pa. 2008)). In applying this standard, Pennsylvania courts acknowledge tl at

"the Commonwealth may sustain its burden by means of wholly circumstantial evidence."

Montalvo, 956 A.2d at 932 (citing Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008)). T re

facts and circumstances established by the Commonwealth need not preclude every possibility of



                                                                                                 7
                                                                      ~-




innocence, as any doubts regarding a defendant's guilt may be resolved by the fact finder unle s

the evidence is so inconclusive that, as a matter of law, no probability of guilt may be drawn.

Commonwealth v. Devine, 26 A.3d 1139, 1145 (Pa. Super. 2011) (quoting Commonwealth v.

Jones, 874 A.2d 108, 120-121 (Pa. Super. 2005)). The fact finder is free to believe all, part, o

none of the evidence. Id.

       First Degree Murder is any unlawful killing committed with malice and the specific

intent to kill. 18 Pa.C.S. § 2502(a); Commonwealth v. Johnson, 615 Pa. 354, 42 A.3d 1017, 10 5

(2012). Evidence is sufficient to sustain a First-Degree Murder conviction if the Commonwea th

established, beyond a reasonable doubt, that (1) a person was unlawfully killed; (2) the defend nt

killed the person; and (3) the defendant acted with a specific intent to kill. Commonwealth v.

Buford, 101 A.3d 1182, 1186 (Pa. Super. 2014) (citing Commonwealth v. Ramos, 827 A.2d

1195, 1196 (Pa. 2003)). An intentional killing is a "killing by means of poison, or by lying in

wait, or any other kind of willful, deliberate, and premeditated killing." 18 Pa.C.S. § 2502(d).

Malice and the specific intent to kill may both be inferred from the defendant's use of a weapo 1

on a vital part of the decedent's body. Buford, 101 A.2d at 1186; Commonwealth v. Thomas, 4

A.3d 332, 335-36 (Pa. 2012). The Commonwealth may establish that the defendant intentiona ly

killed the decedent wholly through circumstantial evidence. Commonwealth v. Chambers, 980

A.2d 35, 44 (Pa. 2009) (citing Commonwealth v. Rivera, 773 A.2d 131, 135 (Pa. 2001)).

       The Defendant confessed his guilt to both Willis and Evans in the weeks after the

shooting. N.T. 11/4/2015 at 20-21, 177. Moreover, the Commonwealth presented substantial

circumstantial evidence to prove that the Defendant murdered the decedent. The decedent's

phone records established that the Defendant called the decedent approximately one-half hour

before the murder. N.T. 11/3/2015 at 103-106, 116-118. Aye testified that immediately after


                                                                                                    8
                            ·-

the phone call, the decedent travelled to the Defendant's location. N.T. 11/4/2015 at 95-105.

The Defendant owned the same type of pistol used to murder the decedent. Finally, the

Defendant expressed to Whitest his concern that police knew that he was the last person to call

the decedent, demonstrating the Defendant's knowledge of his own guilt. N.T. 11/3/2015 at

170-182

       The Defendant further avers that the evidence was insufficient to establish that the

Defendant murdered the decedent with premeditation, malice, or the specific intent to kill.

Again, the Defendant admitted to Willis and Evans that he killed the decedent because of a

perceived slight and because he needed the money, respectively. N.T. 11/4/2015 at 21, 177.

Physical evidence indicated that, while inside the Ford Explorer, the Defendant pressed a gun up

to the decedent's chest and fired a bullet through several vital organs. 11/5/2015 at 11-19, 21

22. After the Defendant shot the decedent in the mouth, the decedent escaped the vehicle

through the passenger door and attempted to crawl away from the scene. N.T. 11/3/2015 at 52

55. As bullet trajectory evidence indicated, the Defendant then stood over the wounded,

kneeling decedent and executed him with fatal shots to the head and right shoulder. N.T.

11/5/2015 at 17-19. This evidence clearly establishes premeditation, malice, and the specific

intent to kill and is therefore sufficient to sustain a First-Degree Murder conviction.

       To sustain a robbery conviction, the Commonwealth must prove that, in the course of

committing a theft, the defendant either inflicted serious bodily injury upon another, committe

any felony of the first or second degree, or physically removed property of another by force. 18

Pa.C.S. § 3701(a)(l)(i)-{v). A defendant acts "in the course of committing a theft" when the d

occurs during ( 1) an attempt to commit theft; (2) the commission of theft; or (3) flight after th

attempt or commission. 18 Pa.C.S. § 3701(a)(2); Commonwealth        v,   Alford, 880 A.2d 666, 677


                                                                                                     9
(Pa. Super. 2005). A person is guilty of theft if he unlawfully takes, or exercises unlawful

control over, movable property of another with intent to deprive him thereof. 18 Pa.C.S. §

392l(a).

           The Defendant admitted to Evans that he shot the decedent and stole his money. N.T.

11/4/2015 at 176-177; Commonwealth Exhibit C-10. Although Castro saw the decedent

transport heroin in his truck a day before the murder, investigators found neither drugs nor

money on the decedent's person or in his truck. N.T. 11/3/2015 at 60-63, 77-90; N.T. 11/4/2 15

at 100-105. These facts are sufficient to sustain the Defendant's robbery conviction.

           The Defendant avers that the evidence was insufficient to identify the Defendant as the

perpetrator of the PIC and VUFA charges. In order to secure a PIC conviction, the

Commonwealth must prove that the Defendant possessed an instrument of crime with the inte t

to employ it criminally. 18 Pa.C.S. § 907(a). An instrument of crime is "[ajnything used for

criminal purposes and possessed by the actor under circumstances not manifestly appropriate fi r

lawful uses it may have." 18 Pa.C.S. § 907(d)(2); see also Commonwealth v. Robertson, 874

A.2d 1200, 1208-1209. (Pa. Super. 2005).

           To convict a defendant of Carrying a Firearm Without a License, the Commonwealth

must prove beyond a reasonable doubt that (1) the weapon was a firearm; (2) the firearm was

unlicensed; and (3) the firearm was concealed on or about the defendant's person or in a vehic e,

outside his home or place of business. Commonwealth v. Coto, 932 A.2d 933, 939 (Pa. Super.

2007) (citing Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004)); 18 Pa.C.S. §

6106(a)(l).     Concealment is an issue determined by the trier of fact, based on the particular

circumstances in each case. Commonwealth v. Scott, 436 A.2d 607, 608 (Pa. 1981) ( citation

omitted).



                                                                                                     10
       A person is prohibited from carrying a firearm on a public street in Philadelphia unless

that person holds a valid license or is exempt from licensing under 18 Pa.C.S. § 6106(b ). 18 P

C.S. § 6108.

       In February 2008, Evans purchased a Smith & Wesson .38 Special for the Defendant.

N.T. 1 I/5/2015 at 44-50. The certificate of nonlicensure conclusively established that the

Defendant was unlicensed on the date of the murder. Id. at 108; Commonwealth Exhibit C-47.

As previously discussed, the Defendant shot the decedent in the head, chest, and shoulder with a

Smith & Wesson .38 Special while in a vehicle and standing on a public street in Philadelphia.

This evidence is sufficient to support the Defendant's PIC and VUFA convictions.

                                      Weight of the Evidence

       Weight of the evidence and sufficiency of the evidence are discrete inquiries. An

argument that the verdict is contrary to the weight of the evidence concedes that there is

sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against t e

weight of the evidence. Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002). An

allegation that the verdict is against the weight of the evidence is addressed to the sound

discretion of the trial court. Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super. 2005)

(citing Commonwealth v. Sullivan, 820 A.2d 795, 805-806 (Pa. Super. 2003); Commonwealth               ~1.



Widmer, 744 A.2d 745, 751-752 (Pa. 2000).

       For weight of the evidence claims, the Supreme Court has explained that the test is

whether the verdict must be so contrary to the evidence as to shock one's sense of justice.

Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008). As the finder of fact is free to

believe all, part, or none of the evidence and to determine the credibility of the witnesses, for a

defendant to prevail on a challenge of the weight, the evidence must be "so tenuous, vague an



                                                                                                       11
uncertain that the verdict shocks the conscience of the court." Commonwealth v. Sullivan, 820

A.2d 795, 806 (Pa. Super. 2003). A weight of the evidence challenge is one of the least

assailable reasons for granting or denying a trial. Commonwealth v. Horne, 89 A.3d 277, 285

(Pa. Super. 2014) (citing Widmer, 744 A.2d at 753).

       The Defendant argues that the verdict is against the weight of the evidence on all charg s

because of speculative and conjectural evidence used to establish the Defendant as the

perpetrator. This argument is virtually identical to the Defendant's sufficiency challenge, and

must fail for the same reasons. The Defendant admitted to Evans and Willis that he killed the

decedent, and also told Evans that he robbed the decedent. N.T. 11/4/2015 at 21-26, 176-177

The decedent was executed with a Smith & Wesson .38 Special on a public street. Id at 122-

128, N.T. 11/5/2015 at 8-9. The Defendant possessed a Smith & Wesson .38 Special at the ti e

of the murder. N.T. 11/4/2015 at 24. The Defendant was the last person to call the decedent t e

night of the murder, and the decedent was last seen travelling to the Defendant's home. N.T.

11/3/2015 at 100-106; N.T. 11/4/2015 at 80-83. The Defendant was not licensed to carry a

firearm. N.T. 11/5/2015 at 108; Commonwealth Exhibit C-47. The Defendant enlisted Evans o

buy a weapon for him because he couldn't purchase his own. N. T. 11/4/2015 at 151-173.

These facts conclusively prove the elements of each charge. Nothing about the verdict shocks

this Court's conscience.

       For the foregoing reasons, the decision of this Court should be affirmed.



                                                            BY THE COURT,



                                                            Barbara A. McDermott, J.



                                                                                                  12
Commonwealth       v. Dennis Fulton, CP-51-CR-0003414-2014

                                          PROOF OF SERVICE

      I hereby certify that I am this day serving the foregoing filing upon the person(s), and in the
manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:

                              Philadelphia    District Attorney's Office
                              Three South     Penn Square
                              Philadelphia,    PA 19107
                              Attn: Hugh      Bums, Esquire

Type of Service:              Hand Delivery

                              Lee Mandell, Esq.
                              1500 JFK Blvd., STE 405
                              Philadelphia, PA 19102

Type of Service:              First Class Mail

                              Dennis Fulton
                              KN0753
                              SCI Houtzdale
                              Box 1000
                              Houtzdale, PA 16698

Type of Service:              Certified Mail




Joseph Duffy
Law Clerk to the
Honorable Barbara A.
