J-S40036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOUIS E. ALEXANDER :
:
Appellant : No. 1404 EDA 2016
Appeal from the Judgment of Sentence December 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005336-2013
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED JULY 10, 2017
Louis E. Alexander appeals from the judgment of sentence imposed on
December 18, 2015, in the Court of Common Pleas of Philadelphia County.
A jury convicted Alexander of murder of the first degree, carrying a firearm
without a license, and possessing an instrument of crime.1 The trial court
sentenced Alexander to life imprisonment without parole on the murder
charge and two concurrent terms of imprisonment of one to two years each
for the remaining offenses. In this appeal, Alexander challenges the
sufficiency of the evidence and the weight of the evidence. Based upon the
following, we affirm.
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2502(a), 6106(a)(1), and 907(a).
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The trial court has aptly summarized the background of this case:
[Alexander] was arrested on October 17, 2012, and charged with
murder, possessing the instruments of a crime, recklessly
endangering another person and violations of the Uniform
Firearms Act. [Alexander] was bound over for court on all
charges after a preliminary hearing on January 31, 2013. A jury
trial was held from August 10, 2015 through August 17, 2015 at
which time [Alexander] was convicted of [murder of the first
degree, carrying a firearm without a license, and possessing an
instrument of crime] and subsequently sentenced to life in prison
without parole. CP-51-CR-0001306-2013 was nolle prossed on
December 18, 2015.
****
On May 4, 2012, Daquan Windley was standing outside of a bar
at 15th and Huntingdon Street in Philadelphia. Mr. Windley
walked across the street to the trunk of a vehicle where a couple
of people had gathered. Louis Alexander came across the street
and shot Windley several times. Windley ran down the street and
[Alexander] chased him and shot him two more times. Daquan
Windley collapsed on a porch. The police responded, and upon
finding Windley they scoop[ed] him up and t[ook] him to Temple
Hospital. Fourteen days later Windley succumbed to his wounds
and died. Although a complaint was filed on June 13, 2012,
[Alexander] was not apprehended until October 17, 2012. …
Trial Court Opinion, 10/27/2016, at 1–2, 3.
Following his jury conviction on August 18, 2015, Alexander was
sentenced on December 18, 2015. A motion for reconsideration of sentence
was filed on December 22, 2015, and an amended post-sentence motion
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was filed on December 28, 2015. Both motions were denied by operation of
law on April 20, 2016, and this appeal followed.2
Alexander first challenges the sufficiency of the evidence to sustain his
convictions. He asserts “the evidence presented was insufficient to sustain
the verdict where witness statements were inconsistent, unreliable and failed
to prove [Alexander’s] participation in the alleged crime.” Alexander’s Brief
at 11.
Alexander states he and the victim were friends, and asserts the video
surveillance of the incident did not show the actual shooting. Id. Moreover,
he claims that “although motive is not necessary for the Commonwealth to
prove its case, it is unarguably a significant factor to consider [] that the
edited video surveillance did not show that the Decedent and [Alexander],
while inside Big Al’s Spot Bar, embraced each other immediately prior to the
incident.”3 Id. Alexander points out that the victim told police he did not
know who shot him. Id. at 11-12. Alexander also relies on his own trial
testimony that he did not shoot the victim, that he did not have a gun, and
that a man named Hock reached into the trunk of a car, pulled out a gun,
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2
Alexander timely complied with the order of the trial court to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
3
The parties stipulated that the edited video “mistakenly does not show
[Alexander] and [the victim] in the bar hugging. That is agreed that that
happened and it is not shown in the video.” N.T., 8/17/2015, at 48.
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and then Alexander heard shots. Id. at 12. Additionally, Alexander states
he testified he went to the victim’s funeral service.
Alexander claims that the surveillance video did not show him with a
gun and indicated the shooting occurred in the street, which is inconsistent
with the fired cartridge casings being found on the sidewalk. Id. Finally,
Alexander asserts Tyree4 Smith, who initially gave a statement to police
indicating he witnessed the incident, retracted this statement at trial and
testified that he did not know who killed the victim, and did not see what
occurred. Id. Alexander relies on Smith’s testimony that he lied to
detectives because he wanted “to get out of there,” and that “he’s been a
liar all his life.” Id., citing N.T., 8/12/2015, at 67, 70.
Our standard of review of a sufficiency claim is well settled:
In evaluating a challenge to the sufficiency of the evidence, we
must determine whether, viewing the evidence in the light most
favorable to the Commonwealth as verdict winner, together with
all reasonable inferences therefrom, the trier of fact could have
found that each and every element of the crimes charged was
established beyond a reasonable doubt. We may not weight the
evidence and substitute our judgment for the fact-finder. To
sustain a conviction, however, the facts and circumstances which
the Commonwealth must prove must be such that every
essential element of the crime is established beyond a
reasonable doubt.
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4
The record reflects the witness’s name as “Tyreeke Smith.” See N.T.,
8/12/2015, at 2.
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Lastly, the finder of fact may believe all, some or none of a
witness’s testimony.
Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011) (citations
omitted).
Based on our review, we conclude the arguments of Alexander present
no basis upon which to disturb the determination of the trial court that the
evidence was sufficient to support Alexander’s convictions. Here, the trial
court analyzed the Commonwealth’s evidence, as follows:
The evidence in this case was substantial and overwhelming, in
fact the murder is on videotape! There were numerous
surveillance cameras in, as well as outside the bar at 15th and
Huntington Streets. The jury was able to see [Alexander] as well
as the decedent in the bar and when each of them left the bar.
Windley stands outside of the bar and Alexander goes to the
corner where a car pulls up and hands [Alexander] an object
which is not discernable in the video. Alexander then crosses the
street to where the decedent was standing with a few other
people and shoots Windley several times. [Alexander] continues
to shoot the decedent as he runs up the street. (N.T. 8-17-2015,
pp. 8-13).
In addition to the tape-recording of the murder, the parties
stipulated that the individual in the video wearing the tan
hooded jacket and blue jeans was [Alexander]. This is the
individual [who] is shown inside and outside of the bar, crossing
the street and approaching the decedent immediately prior to
the gunshots, and running after the decedent with his arm
extended while hearing more shots. (N.T. 8-11-2015, pp. 18,
79-80; 83-88, 8-12-2015, p.2). The medical examiner testified
as to the cause of death and that the wounds received by the
decedent were consistent with the video. (N.T. 8-11-2015, pp.
83-88). Tyreeke Smith was at the scene of the murder shooting
dice, and although when he testified he claimed not to recall
what happened that evening, his statement on the morning
following the murder declares that he saw “Louie” go up to the
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decedent and shoot Windley, then run back, past Smith with a
gun in his hand. (N.T. 8-12-2015, pp. 18-20, 23-24). Reginald
Green also testified that he was outside of the bar at the time of
the shooting and although he did not see the shooting, he did
see [Alexander] running away after the crime. (N.T. 8-12-2015,
pp. 106-109). Detective Marano told the jury about interviewing
Tyreeke Smith following the incident and how that eyewitness
had stated he had seen the entire incident including [Alexander]
walking up to the decedent and firing four or five shots and then
as Windley runs away, Alexander chasing after him and firing
three or four more shots. (N.T. 8-12-2015, pp. 121-123). The
evidence was not only sufficient, it was overwhelming.
Trial Court Opinion, 10/27/2016, at 4–5. We agree with the trial court’s
analysis of the evidence presented to the jury, and add the following
comments to address Alexander’s argument.
As already stated, the jury is free to believe all, some or none of a
witness’s testimony. Priest, supra, 18 A.3d at 1240. The fact that the
victim and Alexander embraced a short time before the shooting was
presented to the jury by way of stipulation.5 The jury, however, apparently
believed the Commonwealth’s evidence.
Furthermore, the fact that Alexander denied shooting the victim and
Smith recanted his statement to police does not render the evidence
insufficient. The Pennsylvania Supreme Court has held that the prior
inconsistent statements of witnesses who recanted at trial constituted
sufficient evidence to support the defendant’s murder conviction when the
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5
See Footnote 3, supra.
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witnesses testified at trial and were subject to cross-examination before a
factfinder that could reasonably credit the prior statements over the
witnesses’ in-court recantations. Commonwealth v. Brown, 52 A.3d 1139,
1168 (Pa. 2012). Here, the jury observed the testimony of Smith, and was
free to credit Smith’s initial statement to police rather than his recantation.
See Brown, supra, at 1169 (“[I]t is the finder-of-fact’s ability to make in-
person observations of the witness at the time of trial, as he or she explains
the reasons for the prior statement, which is most crucial to its assessment
of the witness’s credibility.”). Accordingly, for all the above reasons,
Alexander’s first argument fails.
The second issue raised by Alexander is framed as a challenge to the
weight of the evidence. Alexander argues “Smith testified that he lied to
members of the Philadelphia Police Department in his initial statement and
that he had been a liar all his life.” Alexander’s Brief at 15. Alexander
maintains: “When Smith’s testimony is viewed in light of the edited video
surveillance tapes, which did not show [Alexander] with a gun, and in light
of the ballistics evidence showing fired cartridge casings on the sidewalk not
in the street, the jury’s verdict is based upon mere speculation and has no
factual support.” Id. Alexander also again points out that he testified he
was a friend of the decedent, as demonstrated by stipulation that missing
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video footage showed the decedent and Alexander hugging each other inside
Big Al’s Spot immediately before the shooting. See id.
Our review of a weight claim is well settled:
The decision to grant or deny a motion for a new trial based
upon a claim that the verdict is against the weight of the
evidence is within the sound discretion of the trial court.
Commonwealth v. Cousar, 593 Pa. 204, 928 A.2d 1025, 1033,
1036 (Pa. 2007). Thus, "the function of an appellate court on
appeal is to review the trial court's exercise of discretion based
upon a review of the record, rather than to consider de novo the
underlying question of the weight of the evidence."
Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211, 1225
(Pa. 2009). An appellate court may not overturn the trial court's
decision unless the trial court "palpably abused its discretion in
ruling on the weight claim." Commonwealth v. Champney,
574 Pa. 435, 832 A.2d 403, 408 (Pa. 2003). Further, in
reviewing a challenge to the weight of the evidence, a verdict
will be overturned only if it is "so contrary to the evidence as to
shock one's sense of justice." Commonwealth v. Diggs, 597
Pa. 28, 949 A.2d 873, 879 (Pa. 2008).
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016), cert. denied by
Cash v. Pennsylvania, 137 S. Ct. 1202 (Feb. 27, 2017).
Here, the trial court rejected Alexander’s weight claim, stating:
A claim that the verdict was contrary to the weight of the
evidence concedes that there is sufficient evidence to sustain the
verdict. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d
745 (Pa. 2000). “[T]he weight of the evidence is exclusively for
the finder of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses.”
Commonwealth v. Marks, 704 A.2d 1095, 1098 (Pa. Super.
1997), citing Commonwealth v. Simmons, 541 Pa. 211, 229,
662 A.2d 621, 630 (1995). A defendant’s request for a new trial
based on the argument that the verdict was against the weight
of the evidence will only be granted when the verdict is so
contrary to the evidence as to make the award of a new trial
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imperative. Commonwealth v. Mason, 559 Pa. 500, 513, 741
A.2d 708, 715 (1999); Commonwealth v. Auker, 545 Pa. 521,
541, 681 A.2d 1305, 1316 (1996). Where the record adequately
supports the trial court, the court has acted within the limits of
its discretion. Commonwealth v. Clay, 619 Pa. 423, 64 A.3d
1049 (2013); Commonwealth v. Brown, 538 Pa. 410, 648
A.2d 1177 (1994).
As was noted earlier, the evidence in this case was compelling,
substantial and overwhelming. The defendant is videotaped
inside the bar, leaving and going to the corner where he
retrieves an object from men in a vehicle, crossing over the
street to where the decedent was standing at which time you
hear four or five gunshots, then chasing the decedent down the
street with his arm outstretched as you hear three or four more
gunshots. An eyewitness gives a statement within hours of the
murder identifying Alexander as the murderer and a second
witness identifies the defendant as running away immediately
following the homicide. Accordingly, the verdict was not so
contrary to the evidence as to shock one’s sense of justice and
therefore, the judgment must stand.
Trial Court Opinion, 10/27/2016, at 5–6.
The trial court applied the correct standard to this weight claim,
reviewed the evidence, and determined the jury’s verdict was consistent
with the evidence presented at trial. While Alexander seeks to discredit
Smith’s initial statement to police based on Smith’s testimony he lied to
police, the jury was free to accept Smith’s prior inconsistent statements and
reject his recantation. As this Court recently stated in addressing a
comparable claim:
Although Appellant discounts Fowler and Graham’s statements to
police as they later recanted at trial, the jury was free to credit
the witnesses’ prior inconsistent statements over their
recantations. In a similar case, the Pennsylvania Supreme Court
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held that the prior inconsistent statements of witnesses who
recanted at trial constituted sufficient evidence to support the
defendant's murder conviction when the witnesses testified at
trial and were subject to cross-examination before a factfinder
that could reasonably credit the prior statements over the
witnesses’ in-court recantations. Commonwealth v. Brown,
617 Pa. 107, 154, 52 A.3d 1139, 1168 (2012).
Although Graham and Fowler recanted their accounts of the
crime at trial, they were subject to cross-examination before the
jury and presented explanations for making the inconsistent
statements. … The jury had a full opportunity to observe the
witnesses and assess the credibility of their explanations for the
recantations.
Commonwealth v. Brown, 134 A.3d 1097, 1104–1105 (Pa. Super. 2016).
Likewise, in this case, Smith testified at trial and was subject to cross-
examination, and the jury was able to make credibility determinations
regarding Smith’s recantation and his initial statement.
Furthermore, the jury viewed the surveillance video and watched
Alexander, who stipulated to being the individual in the video wearing a light
colored hooded jacket and blue jeans.6 The jury also heard Commonwealth
witnesses testify regarding ejection and location of the casings at the crime
scene. After reviewing all the evidence, the jury found credible the
Commonwealth’s evidence that showed Alexander as the shooter. Based on
our review, we conclude the trial court properly exercised its discretion in
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6
See N.T., 8/17/2015, at 2-3.
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finding the jury’s verdict was not so contrary to the evidence as to shock the
conscience.
Having reviewed the arguments presented by Alexander, and having
found them to be meritless, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2017
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Com. v. Alexander, L.
Combined Opinion