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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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