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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUISE WALKER-WOMACK :
:
Appellant : No. 1809 EDA 2016
Appeal from the Judgment of Sentence April 29, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007619-2013
BEFORE: GANTMAN, P.J., OTT, J. and PLATT, J.*
MEMORANDUM BY OTT, J.: FILED July 3, 2017
Marquise Walker-Womack appeals from the judgment of sentence
imposed on April 29, 2016, in the Court of Common Pleas of Philadelphia
County, following his conviction by jury1 on the charges of first-degree
murder, conspiracy, firearms not to be carried without a license, carrying
firearms in public in Philadelphia, and possession of an instrument of crime. 2
Walker-Womack, who was fifteen years old at the time of the crimes,
received a total sentence of 35 years’ to life imprisonment. In this timely
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*
Retired Senior Judge assigned to the Superior Court.
1
Walker-Womack and his co-defendant, Warren Stokes, were originally tried
in September, 2014. That trial ended with a hung jury. The two were
retried in February, 2016, at which time both were convicted of first-degree
murder and related charges.
2
18 Pa.C.S. §§ 2502(a), 903, 6106(a)(1), 6108, and 907, respectively.
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appeal, Walker-Womack claims only that the verdict was against the weight
of the evidence.3 After a thorough review of the submissions by the parties,
relevant law, and the certified record, we affirm.
We rely upon the facts as related by the trial court in its Pa.R.A.P.
1925(a) opinion.
On August 5, 2009, Katora Wilson Bush travelled by bus to the
5100 block of Chester Avenue in Southwest Philadelphia from
dinner with her daughter, Amirajh Wilson, and her husband,
Gerald Bush. Upon disembarking the bus, all three observed an
African-American teenager in a black hooded sweatshirt, later
identified as the Defendant, Marquise Walker-Womack, following
them as they walked southwest along Chester Avenue.
As she travelled home with her family, Katora Wilson Bush
observed her son, the decedent Niam Wilson Atif, at the corner
near 5117 Chester Avenue talking to his neighbor, Allen Bryant.
During Bryant and the decedent’s discussion about employment,
an unidentified individual walked past the pair shouting, “it’s
about to go down.” Seconds later, Bryant saw the African-
American teenager in the black hooded sweatshirt approach the
decedent from behind, draw a revolver, and shoot him three
times. [Walker-Womack] was fifteen-years-old at the time of
the shooting.
Katora Wilson Bush heard the gunfire from her home eight doors
away and saw her son lie bleeding on the corner of Chester
Avenue and Paxon Street. Gerald Bush and Amirajh Wilson,
from Katora Wilson Bush’s same vantage point, watched as the
teenager fled the scene along Chester Avenue. Neither
eyewitness identified [Walker-Womack] as the shooter.
At approximately 11:00 p.m., Philadelphia Police Officers
Alexander Montes and Clara Martinez arrived at the scene and
observed the decedent laying [sic] in a pool of blood emanating
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3
This claim was preserved in a post-sentence motion filed on May 6, 2016.
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from a large wound in the back-right side of his head.[4] Officer
Martinez spoke to Amirajh Wilson, who described the assailant
as a 5’8” African-American male in his teens, wearing a black
hood.
According to Philadelphia Deputy Medical Examiner Dr. Albert
Chu, and expert in forensic pathology, the decedent sustained
three fatal, penetrating gunshot wounds to the left side of his
head, the right side of his neck and his center back, respectively.
Each bullet penetrated a vital organ, including the brain, jugular
vein and the left lung. The medical examiner recovered all three
projectiles from the body which were submitted to the Firearms
Identification Unit. The decedents’ body did not exhibit stippling
or any other indications of close-range firing. Dr. Chu
concluded, to a reasonable degree of medical certainty, that the
manner of death was homicide caused by multiple gunshot
wounds.
On October 7, 2009, Philadelphia police engaged in a foot chase
with Tyreek Artis, a member of the Harlem Boys gang. Artis led
police to an apartment complex at 5403 Harley Terrace and
attempted to conceal himself in unit 3A. Unit 3A served as an
epicenter for gang-related activity, housing several firearms and
approximately sixty drug packets prepared for distribution.
Inside, police discovered Artis, gang member Kareem Pittman,
and co-defendant Warren Stokes, and recovered a loaded .38
Special revolver.
Officer Jesus Cruz, a ballistics expert with the Philadelphia
Firearms Investigation Unit, examined all three projectiles
recovered from the decedent’s body and determined that all
three bullets were fired from a single firearm. Each projectile
exhibited “six left twist” rifling markings, an identification
characteristic used to match a projectile to the weapon that fired
it. Officer Cruz concluded that the projectiles were consistent
with having been fired from the .38 Special recovered at 5403
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4
We note the medical examiner testified the wound was penetrating (it did
not exit the body), to the left side of the head, moving left to right,
downward and a little bit front to back. See N.T. Trial, 2/2/2016 at 109-11.
The difference in the description of the head wound does not affect the
analysis.
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Harley Terrace, as the firearm exhibited “six left twist”
characteristics.
No more than one week after the murder, [Walker-Womack]
bragged to Pittman and Harlem Boys gang member Tayale
Shelton that he “put in some work” by killing the decedent.
[Walker-Womack] and Stokes told both Pittman and Shelton that
Stokes provided the .38 Special Walker-Womack used to kill the
decedent. As [Walker-Womack] described the shooting to
Pittman, Stokes displayed the firearm used to murder the
decedent. [Walker-Womack] further informed Shelton that he
shot the decedent at Stokes’ behest.
On October 6, 2010, federal authorities indicted Pittman and
Shelton pursuant to the Racketeering Influenced and Corrupt
Organizations Act (“RICO”). Prior to trial, Pittman and Shelton
pled guilty and entered into separate cooperation agreements.
[fn]
_________________
[Fn] Shelton entered into his guilty plea agreement on April
4, 2012, and Pittman entered into his on April 9, 2012.
Both witnesses seek a USSG § 5K1.1 departure from the
mandatory minimum sentences attached to their federal
charges. Commonwealth Exhibit C-125-1; Commonwealth
Exhibit C-126-1.
_________________
During an April 18, 2012 interview with Philadelphia homicide
Detectives John McNamee and William Kelhower, Pittman
explained that Stokes oversaw a splinter organization within the
Harlem Boys, known as the Greenway Gorillas, consisting
primarily of adolescent members, and that [Walker-Womack],
known in the organization as “Littleman,” shot the decedent at
Stokes’ behest. During a May 18, 2012 interview, Shelton told
Detectives McNamee and Kelhower that [Walker-Womack]
confessed to shooting the decedent on Stokes’ orders, as Stokes
had been “beefing” with the decedent for some time prior to the
shooting. Shelton further explained that the murder weapon
was a “community” firearm that Stokes provided to [Walker-
Womack].
After his arrest, [Walker-Womack] was incarcerated at the
Philadelphia Industrial Correctional Facility (“PICC”) in a cell next
to one occupied by Thomas Adams. In November 2014, while
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both Adams and [Walker-Womack] were incarcerated, [Walker-
Womack] confessed to Adams that he shot the decedent three
times with a .38 Special revolver.
At trial, both Pittman and Shelton described [Walker-Womack]
as a member of the Greenway Gorillas, which served as a feeder
group to the Harlem Boys gang that included Pittman, Shelton,
and Stokes as members. Pittman and Shelton both testified that
Greenway Gorillas members seeking to advance within the gang
committed murders to impress Harlem Boys associates.
[Walker-Womack] in particular looked up to Stokes and sought
to earn his respect and approval.
Trial Court Opinion, 7/25/2016, at 2-5 (citations to record omitted).
Against this factual background, Walker-Womack argues the possible
sentence reductions available to Pittman and Shelton “made it virtually
impossible for them not to fabricate their testimony” 5 and Thomas Adams’
recantion of his prior statement to the police on the witness stand, renders
the guilty verdict against the weight of the evidence. Our standard of
review for a challenge to the weight of the evidence is well settled.
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
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5
See Appellant’s Brief at 4.
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“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:
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).
This does not mean that the exercise of discretion by the trial
court in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court's discretion, we have
explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for
the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason,
as opposed to prejudice, personal motivations, caprice or
arbitrary actions. Discretion is abused where the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where
the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill-will.
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Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85
(1993)).
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).
In denying Walker-Womack’s post-sentence motion for a new trial
based upon his weight of the evidence claim, the Honorable Barbara A.
McDermott reasoned:
[Walker-Womack] argues that Pittman[’s] and Shelton’s
testimony is unbelievable because each witness agreed to testify
against [Walker-Womack] in exchange for a USSG § 5K1.1
downward departure from the Federal Sentencing Guidelines. At
the time of trial, both Pittman and Shelton awaited sentencing
for their RICO convictions. At trial, both Pittman and Shelton
testified that [Walker-Womack] murdered the decedent at the
behest of his co-defendant, Warren Stokes, in order to advance
within the Harlem Boys organization. During cross-examination,
trial counsel sought to impeach both Pittman[’s] and Shelton’s
credibility by thoroughly interrogating each witness about his
cooperation agreement with the federal government. Through
this line of questioning, trial counsel successfully elicited to the
jury that both witnesses faced a maximum penalty of life
imprisonment and that a USSG § 5K1.1 departure afforded them
the possibility of early release. Ultimately, the jury had an
opportunity to observe the witnesses and assess their credibility
as they maintained and repeated their version of events.
Pittman[’s] and Shelton’s testimony is corroborated by the
eyewitness testimony of Allen Bryant, Katora Wilson Bush,
Gerald Bush and Amirajh Wilson. Katora Wilson Bush testified
that a person fitting [Walker-Womack’s] description dressed in a
black hoodie was pacing near decedent’s location immediately
prior to the murder. Bryant and Amirajh Wilson each testified
that a skinny teenager, approximately 5’7” or 5’8” and wearing a
black hoodie, approached the decedent from behind and short
him three times, including in the back of the head. Bryant
further testified that there was animosity between the decedent
and residents of another block. Katora Wilson Bush, Gerald
Bush, and Amirajh Wilson each witnessed a person fitting
[Walker-Womack’s] description flee the murder scene. That the
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jury chose to believe Pittman[’s] and Shelton’s testimony,
especially considering the corroborating evidence, does not
shock this Court’s conscience. See Commonwealth v. Holley,
945 A.2d 241, 246 (Pa. Super. 2008) (the finder of fact is free to
believe the testimony of Commonwealth witnesses and free to
disregard the testimony of others).
[Walker-Womack] further avers that, because Thomas Adams
recanted his out of court police statement on the witness stand,
that his verdict is against the weight of the evidence. In
November 2014, Adams was incarcerated in Cell 49 of the
Philadelphia Industrial Correctional Center, next to [Walker-
Womack] at Cell 50. At that time, [Walker-Womack] told Adams
the he was incarcerated for a shooting and that, on the night of
the murder, [Walker-Womack] wore a black hoodie pulled up
over his head and ambushed the decedent, shooting him in the
head, neck, and back with a .38 Special revolver. These
conversations were memorialized in Adams’ police statement. At
trial, Adams claimed that he fabricated his entire statement in
order to secure favorable treatment by law enforcement, having
used [Walker-Womack’s] discovery to aid his narrative.
The jury was free to believe Adams’ statement to police,
notwithstanding his attempt to recant at trial. Adams’ out of
court statement that [Walker-Womack] wore a black hoodie
before shooting the decedent is corroborated by Allen Bryant’s
eyewitness testimony, and Pittman[’s] and Shelton’s testimony
corroborates the type of weapon [Walker-Womack] used. Even
if the jury chose not to believe Adams’ statement, the combined
weight of Pittman[’s], Shelton[’s], and the eyewitnesses’
testimony strongly supports a guilty verdict. Again, the jury’s
verdict does not shock the Court’s sense of justice.
Trial Court Opinion, 7/25/2016, at 6-8 (citations to record omitted).
Having independently reviewed the certified record, we find no abuse
of discretion in the trial court’s ruling. It bears repeating that the jurors
heard all the impeachment testimony Walker-Womack cites in this appeal
and opted to reject it, as they are permitted to do.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/2017
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