Com. v. Morgan, J. ( 2020 )

J-S27037-20, J-S27038-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULMEEN MORGAN :
:
Appellant : No. 1982 EDA 2018
Appeal from the Judgment of Sentence Entered October 20, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000120-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULMEEN MORGAN :
:
Appellant : No. 1983 EDA 2018
Appeal from the Judgment of Sentence Entered October 20, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000121-2016
BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 7, 2020
Appellant Julmeen Morgan appeals the judgments of sentence entered
by the Court of Common Pleas of Philadelphia County after a jury convicted
Appellant on two separate dockets of two counts of first-degree murder,
possessing an instrument of crime (PIC), firearms not to be carried without a
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* Former Justice specially assigned to the Superior Court.
J-S27037-20, J-S27038-20
license, and carrying firearms on public streets. Appellant challenges the
sufficiency and weight of the evidence supporting his convictions. We affirm.
On October 9, 2015, Appellant was arrested in connection with the
shooting deaths of Shaheed Henderson and Erick Ramirez. The Philadelphia
County District Attorney’s Office filed bills of information at CP-51-CR-
0000120-2016 and CP-51-CR-0000121-2016, charging Appellant with
criminal homicide of each victim on separate dockets. Appellant was also
charged with the aforementioned weapons offenses at docket CP-51-CR-
0000120-2016. The trial court aptly summarized the factual background of
this case as follows:
On October 6, 2015, Philadelphia Police Officers responded
to the 2700 block of N. 8th Street in Philadelphia. There, they
found Shaheed Henderson (hereinafter referred to as Shaheed)1
slumped over in the driver’s seat of a gold Lexus sedan suffering
from a gunshot wound to the head. Victim Erick Ramirez was
found lying on the sidewalk next to the open passenger side door
of the vehicle. Ramirez was transported by police to Temple
University Hospital where he was pronounced dead. Shaheed was
pronounced dead at the scene. A subsequent autopsy revealed
Shaheed’s cause of death to be two gunshot wounds to the head
as well as a gunshot wound to the left hip. Ramirez’s cause of
death was a single gunshot wound to the head. Five .380 auto
fired cartridge cases (FCC’s) were recovered by police from the
scene. A forensic analysis of these FCC’s revealed that they had
all been fired from the same .380 caliber handgun. A similar
analysis of the bullet specimens recovered from Shaheed’s body[,]
bullet jacket and the bullet jacket fragment recovered from
Ramirez’s body determined that each of those pieces of ballistic
evidence had been fired from the same .380 caliber firearm.
____________________________________________
1The trial court indicated that it referenced Shaheed Henderson by his first
name because three witnesses with the surname Henderson testified at trial.
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The evidence adduced at trial revealed the chain of events
that led to [the] murders had its genesis in an incident a week
before the killings in which Appellant knocked on the door of
Shaheed’s residence and was greeted by Shaheed’s mother,
Emma Henderson. Appellant indicated to Ms. Henderson that
Shaheed owed him $5.00 for using his cell phone or possessing
his cell phone. Ms. Henderson then gave Appellant $5.00 on her
son’s behalf. However, when she informed her son of the incident,
Shaheed stated that he did not owe Appellant $5.00. Shaheed
subsequently indicated to his sister, Naeemah Henderson, that he
felt the taking of $5.00 from his mother was disrespectful.
Two days before the shooting, Shaheed was seated in his
vehicle outside the Henderson residence following a family
function. Upon seeing Appellant walking up 8th Street with his
girlfriend, Shaheed exited the vehicle and approached Appellant.
After an exchange of words, Shaheed punched Appellant in the
face knocking him to the ground. He then continued striking
Appellant until the two were separated. During the altercation,
Appellant’s girlfriend was struck in the head and sustained a
wound requiring six stitches.
Between 6:00 p.m. and 7:00 p.m., on October 5, 2015,
Shaheed’s brother, Kareem Henderson (Kareem), and Erick
Ramirez were sitting on the steps of the Henderson residence
when Appellant rode by on his bike with his right hand in the
pocket of his hoodie. Appellant made a U-turn and then stopped
in the middle [of] the street in front of the two men and while still
holding his right hand in his pocket, asked for Shaheed. When
Kareem told Appellant [that] Shaheed wasn’t there, Appellant
responded that he saw Shaheed’s car and that “[Shaheed] was
going to pay for what he did.” He then rode off on the bike.
At approximately 1:00 a.m. on October 6, 2015, Shaheed
left the Henderson residence to meet with Ramirez. The two then
met with an associate, Lionel Brown, and proceeded to Brown’s
residence in Shaheed’s Lexus to get wrapping papers to smoke
marijuana. While en route, Shaheed began discussing a problem
[he had] with Appellant. As the three men drove to Brown’s
house, they passed Appellant near the intersection of Cambria and
Franklin Streets. At that time, Brown observed that Appellant was
wearing a black hoodie and tan pants.
Upon their arrival at Brown’s residence, Brown exited the
vehicle. As he entered his residence, he observed Appellant
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approaching Shaheed’s vehicle. Shaheed then drove off and
Appellant watched Shaheed’s vehicle as it drove away. Shaheed
and Ramirez picked Brown up again a short time later and they
proceeded to 8th Street and parked across the street from
Shaheed’s house. A few minutes later as the men were sitting in
the vehicle, shots rang out from outside the driver’s side. Brown
then exited the vehicle. As he did so, he observed Appellant, who
was still wearing a black hoodie and tan pants, on the driver’s side
shooting. Brown then fled through a nearby parking lot. Later in
the morning of October 6, 2015, Brown approached detectives,
indicated he had been present at the shooting and identified
Appellant as the shooter. He was then brought to the homicide
unit where he gave a signed statement identifying Appellant as
the shooter.
The shooting was also observed by eyewitness Mario Aguirre
Ruiz. Ruiz was in the front bedroom of his residence on 8th Street
when he heard gunshots. He looked out the window and observed
the shooter standing at the post between the driver’s side front
and rear of Shaheed’s vehicle. While the shooter was still on the
driver’s side, Ruiz observed a person flee from the vehicle. The
shooter then proceeded to the passenger side, grabbed the front
passenger by the hair as he exited the vehicle and shot him in the
head. When the shooter’s hoodie came down, Ruiz was able to
catch a glimpse of the shooter’s face. The shooter then fled
toward Somerset St. As he did so, he placed the firearm inside
the waistband of his pants. Ruiz was subsequently interviewed on
October 7, 2019 by homicide relating his observations [sic] and
was shown a sequential photo array. When shown Appellant’s
photo, Ruiz indicated, “it’s a possibility the male’s face looks
longer.”
In the early morning hours of October 6, 2015, Appellant
arrived at the home of his girlfriend, Daysha Gregory. Appellant
told Gregory he needed her to tell the police he had been with her
all night because he, “got into some shit.”
A subsequent forensic analysis of video recovered from the
crime scene showed an individual in a dark hoodie and tan pants
fleeing from the scene. No handgun could be seen in the video as
the individual fled.
[Appellant] was not licensed to carry a firearm at the time
of the killings.
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Trial Court Opinion (“T.C.O.”), 6/21/19, at 2-6 (footnote and internal citations
omitted).
At the conclusion of Appellant’s trial on October 20, 2017, the jury
convicted Appellant of the first-degree murder of Shaheed Henderson as well
as PIC, firearms not to be carried without a license, and carrying firearms on
public streets at docket CP-51-CR-0000120-2016. The jury also convicted
Appellant of the first-degree murder of Erick Ramirez at docket CP-51-CR-
0000121-2016.
Immediately after the jury verdict was entered, the trial court sentenced
Appellant on his convictions on both dockets. The trial court entered separate
sentencing orders in which it imposed consecutive life sentences for each
count of murder. In addition, the trial court imposed sentences of 2½ to 5
years’ imprisonment on the PIC charge, 2½ to 5 years’ imprisonment on the
carrying firearms on public streets charge, and 3½ to 7 years’ imprisonment
on the carrying a firearm without a license charge. The weapons charges were
set to run concurrently with each other and the murder charges.
Appellant filed timely post-sentence motions that were denied by
operation of law on February 22, 2018. On March 29, 2018, Appellant filed a
request that his appellate rights be reinstated nunc pro tunc, alleging that he
had not been notified that the post-sentence motions had been denied. On
June 14, 2018, the lower court filed an order reinstating Appellant’s appellate
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rights nunc pro tunc at both docket numbers. Appellant then filed separate
notices of appeal at each docket number.2
Appellant raises the following question for our review in his appellate
brief, which is identical at both docket numbers: [w]hether the verdict against
the weight and sufficiency of the evidence when the jury convicted [A]ppellant
of first-degree murder and weapon offenses based on eyewitness testimony
that was both weak and flawed.” Appellant’s Briefs, at 5.
Our standard of review is as follows:
“A claim challenging the sufficiency of the evidence is a question
of law.” Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745,
751 (2000). We review a sufficiency challenge de novo, but our
scope of review is limited to the evidence of record.
Commonwealth v. Robinson, 128 A.3d 261, 264 (Pa. Super.
2015) (en banc).
The Commonwealth must establish each element of the crimes
charged beyond a reasonable doubt, but in so doing, it may rely
on wholly circumstantial evidence. Commonwealth v. Galvin,
603 Pa. 625, 985 A.2d 783, 789 (Pa. 2009). The fact-finder, “while
passing on the credibility of the witnesses and the weight of the
evidence, is free to believe all, part, or none of the evidence.” Id.
“[A] reviewing court views all the evidence and reasonable
inferences therefrom in the light most favorable to the
Commonwealth.” Id.
Commonwealth v. Gomez, 224 A.3d 1095, 1099 (Pa.Super. 2019).
____________________________________________
2 Appellant complied with the directive set forth in Commonwealth v.
Walker, ___Pa.___, 185 A.3d 969 (2018), in which our Supreme Court
reasoned than an appellant must file separate notices of appeal at each docket
“where a single order resolves issues arising on more than one docket.” Id.
at ___, 185 A.3d at 971.
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J-S27037-20, J-S27038-20
Appellant does not argue that the Commonwealth failed to prove any
element of the crimes for which he was convicted.3 Instead, Appellant argues
there was insufficient evidence to identify Appellant as the gunman who shot
the two victims. Appellant criticizes the testimony offered by eyewitnesses
Brown and Ruiz, which Appellant argues should not have been credited.
While Appellant characterizes these arguments as challenges to the
sufficiency of the evidence, Appellant is simply attempting to attack the
credibility of the prosecution witnesses and request that we accept his version
of the facts. As such, Appellant is challenging the weight of the evidence, not
its sufficiency. See Commonwealth v. Wilson, 825 A.2d 710, 713–14
(Pa.Super. 2003) (finding “[a] sufficiency of the evidence review … does not
include an assessment of the credibility of the testimony offered by the
Commonwealth”; rather, “[s]uch a claim is more properly characterized as a
weight of the evidence challenge”).
Even to the extent that Appellant’s claim could be properly characterized
as a sufficiency challenge, we are satisfied that there was sufficient evidence
to allow the jury to find Appellant was the shooter. The prosecution presented
evidence that Appellant had a motive for killing Shaheed as shown by the
physical altercation between the two men two days before the shooting.
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3 The trial court asks this Court to find Appellant waived his sufficiency claims
by failing to state with specificity in his statement pursuant to Pa.R.A.P.
1925(b) the elements of the offenses that Appellant wishes to challenge.
However, we decline to find waiver as there is no indication in the record that
the lower court required Appellant to file a concise statement, but rather, it
appears that Appellant filed the statement without being prompted to do so.
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Moreover, just hours before the shooting, Appellant came to Shaheed’s home,
inquired as to his location, and indicated that “[Shaheed] was going to pay for
what he did.” Notes of Testimony (N.T.), 10/17/17, at 222.
Shortly thereafter, when Shaheed arrived home in the early morning
hours of October 6, 2015, accompanied by Ramirez and Brown, a gunman
approached his vehicle, shot Shaheed in the head, and also proceeded to shoot
Ramirez in the head when Ramirez tried to flee. Brown was able to flee the
scene without injury and gave a statement to the police that morning
indicating that Appellant was responsible for the shooting.
While Ruiz, a neighbor who witnessed the shooting, was not able to fully
identify Appellant in a photo array, he gave testimony that corroborated
Brown’s statement to the police. Moreover, Appellant’s consciousness of guilt
was demonstrated by the fact that he asked his girlfriend to give him an alibi
for the night of the shooting as he admittedly “got into some shit.” N.T.,
10/19/17, at 78.
After reviewing the evidence in the light most favorable to the
Commonwealth as verdict winner, we conclude there was sufficient evidence
to support Appellant’s convictions.
Appellant also claims that jury’s verdict was not supported by the weight
of the evidence. When considering this challenge, we apply the following
standard of review:
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:
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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. 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. 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.
[Commonwealth v. Widmer], 560 Pa. [308,] 321–22, 744 A.2d
[745,] 753 [(2000)] (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.
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, 619 Pa. 423, 64 A.3d 1049, 1055 (2013) (some
citations omitted). To grant a new trial on the basis that the verdict is against
the weight of the evidence, “the evidence must be so tenuous, vague and
uncertain that the verdict shocks the conscience of the court.”
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Commonwealth v. Akhmedov, 216 A.3d 307, 326 (Pa.Super. 2019) (en
banc).
Appellant argues that his convictions were against the weight of the
evidence because Brown, the only eyewitness to the shooting that fully
identified Appellant as the perpetrator, did not specifically tell the police in his
initial statement that he saw the shooter’s face. Instead, Appellant asserts
that Brown’s initial statement only identified Appellant as the shooter as Brown
recalled the clothes Appellant was wearing before the shooting occurred.
Brown testified at trial that he did see Appellant’s face during the shooting but
that the police had not included this specific detail in recording Brown’s initial
statement.
While Appellant essentially asks this Court to reweigh the evidence and
overturn the jury’s credibility determinations, we will not substitute our
judgment for that of the jury. We emphasize that “[t]he jury is the ultimate
fact-finder and the sole arbiter of the credibility of each of the witnesses.
Commonwealth v. Clemons, ___Pa.___, 200 A.3d 441, 464 (2019).
Accordingly, we conclude that the trial court did not abuse its discretion in
denying Appellant’s challenge to the weight of the evidence.
For the foregoing reasons, we affirm.
Judgments of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/07/2020
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