Com. v. Morgan, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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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