Com. v. Ferguson, W.

J-S65008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM FERGUSON,
Appellant No. 2061 EDA 2014
Appeal from the Judgment of Sentence October 21, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003810-2012
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 01, 2015
William Ferguson appeals from the judgment of sentence of life
imprisonment without the possibility of parole, imposed October 21, 2013,
following a jury trial resulting in his conviction for first-degree murder,
robbery and related offenses.1 We affirm.
We adopt the following statement of facts, derived from the trial
court’s opinion, which in turn is supported by the trial record. See Trial
Court Opinion, 12/04/2014, at 2-10.
____________________________________________
1
Appellant was charged with murder, robbery, possession of firearm
prohibited, theft by unlawful taking, receiving stolen property, firearms not
to be carried without a license, carrying firearms in Philadelphia, possessing
an instrument of crime, and unauthorized use of motor vehicle. See 18
Pa.C.S. §§ 2502, 3701(a)(1)(i), 6105(a)(1), 3921(a), 3925(a), 6106(a)(1),
6108, 907(a), and 3928(a), respectively. An initial conspiracy charge, see
18 Pa.C.S. § 903(c), was dismissed for lack of evidence.
J-S65008-15
On December 7, 2011, Sylvain Middleton and Appellant were drinking
beer and smoking marijuana. They decided to purchase cocaine, and so Mr.
Middleton called Keith Allen, a friend from whom Mr. Middleton had
purchased cocaine previously. Mr. Middleton and Mr. Allen arranged to meet
in the area of Rugby and Upsal Streets in Philadelphia.
Mr. Middleton and Appellant drove to the area together in Mr.
Middleton’s car. However, Appellant exited the vehicle to meet an unknown
person, and Mr. Middleton proceeded to meet with Mr. Allen separately.
Mr. Middleton entered the front passenger seat of Mr. Allen’s SUV to
complete the drug transaction, whereupon Appellant entered the rear
passenger seat, pointed a gun at Mr. Allen, demanded his money and drugs,
and ordered Mr. Middleton out of the SUV. Mr. Allen placed drugs and
money on the front seat. As Mr. Middleton exited the SUV, he heard
multiple gunshots. He immediately left the area, driving away in his car.
Contemporaneously, Vanderick Desper was driving on Upsal Street
when he passed Mr. Allen’s SUV on the wrong side of the street up against a
pole. Believing an accident had occurred, Mr. Desper backed his car up to
get a closer look and observed the driver of the SUV being assaulted by
someone in the back seat. Mr. Desper parked nearby and called 911 to
report the assault. Following his initial 911 call, Mr. Desper observed a flash
of light coming from inside of the SUV, so he called 911 a second time.
-2-
J-S65008-15
Officers Jonathan Berryman and Daniel McMonagle received a radio
call for an assault in progress at Upsal and Rugby Streets. Upon their
arrival, they observed Appellant seated in the driver’s seat of Mr. Allen’s
SUV. Appellant stated he was trying to get Mr. Allen to a hospital. The
officers found Mr. Allen outside the vehicle, unresponsive, with multiple
gunshot wounds. Mr. Allen was pronounced dead at the scene.
Officer Berryman observed a firearm inside the vehicle. Officer
McMonagle frisked Appellant and recovered U.S. currency and what
appeared to be cocaine. Subsequently, police recovered a nine-millimeter,
semi-automatic firearm, as well as multiple fired cartridge cases, from the
SUV. Forensic evidence introduced at Appellant’s trial established that the
firearm recovered from the SUV was the murder weapon. On the night of
the murder, Appellant tested positive for gunpowder residue on both of his
hands.
Tasheima King was the registered owner of the murder weapon. Ms.
King testified at Appellant’s trial that she had purchased the firearm for
another individual, but it went missing around the time Appellant visited her
home in Columbia, Pennsylvania.
DNA samples were taken from the murder weapon, a fired cartridge
case, and the sweatband of a Philadelphia Eagles hat found in the SUV. For
comparison purposes, DNA samples were also taken from both Appellant and
Mr. Middleton. The victim’s DNA was not tested. Mr. Middleton was
-3-
J-S65008-15
excluded as a contributor to any of the DNA evidence collected from the
murder scene. Appellant’s DNA was found on the slide area of the firearm;
results were inconclusive on the trigger, but included DNA from an unknown
male; and Appellant’s DNA was not present on the grip of the firearm. The
sweatband contained DNA from the same unknown male.2 No discernible
DNA was recovered from the fired cartridge case.
Appellant testified on his own behalf. According to Appellant, he often
engaged in drug transactions with the victim. On the night of the murder,
Appellant and the victim drove together to complete a transaction. Upon
their arrival at the predetermined location, Mr. Middleton entered the SUV
with another person unknown to Appellant. According to Appellant, this
unknown person assaulted and shot the victim but fled prior to the arrival of
the police. Appellant’s father and cousin also testified on his behalf.
Following his trial in October 2013, a jury convicted Appellant of
murder of the first degree, robbery, and several weapons-related offenses.
The court imposed an aggregate sentence of life imprisonment without
parole.3 Appellant filed a post-sentence motion that was denied without a
hearing.
____________________________________________
2
Notably, Tammy Allen, the victim’s wife, testified that the Eagles hat
belonged to her husband.
3
The court also imposed concurrent sentences of 5-10 years’ imprisonment
for robbery; 3½-7 years’ imprisonment for carrying firearms in Philadelphia;
(Footnote Continued Next Page)
-4-
J-S65008-15
In April 2014, Appellant filed a petition seeking leave to appeal nunc
pro tunc. The trial court granted his petition. In July 2014, Appellant
appealed and thereafter filed a court-ordered Pa.R.A.P. 1925(b) statement.
In December 2014, the trial court issued a responsive opinion.
Appellant failed to submit an appellate brief. The matter was
remanded to ascertain whether appointed counsel abandoned Appellant.
Following a hearing, the trial court determined that counsel’s failure to
submit a brief was due to circumstances beyond counsel’s control.
Accordingly, a new briefing schedule was set. The matter is now ready for
disposition.
Appellant raises the following issues on appeal, reversed for ease of
analysis:
1. Whether the verdict is against the sufficiency of the evidence,
based on the results of DNA analysis in this case; and
2. Whether the verdict is against the weight of the evidence,
based on the results of the DNA analysis in this case.
See Appellant’s Brief, at 4.
Appellant purports to challenge the sufficiency of the evidence
presented at trial.
In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant's Rule 1925(b) statement must
_______________________
(Footnote Continued)
2½-5 years’ imprisonment for carrying a firearm without a license; and 2½-
5 years’ imprisonment for possessing an instrument of crime. The remaining
charges were nolle prossed.
-5-
J-S65008-15
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient. Such
specificity is of particular importance in cases where, as here,
the appellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must
prove beyond a reasonable doubt.
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal
citations and quotation marks omitted); see also Commonwealth v.
Gibbs, 981 A.2d 274 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa.
2010).
Here, Appellant offers no analysis of any particular elements that
comprise the charges against him. For example, to prove murder of the first
degree, the Commonwealth must establish: (1) that a human being has
been unlawfully killed; (2) that the person accused did the killing; and (3)
that the killing was done with malice aforethought, as well as with
premeditation and deliberation. See Commonwealth v. Fox, 619 A.2d
327, 335 (Pa. Super. 1993); 18 Pa.C.S. § 2502(a). However, Appellant
neither identifies these elements nor argues how the evidence presented by
the Commonwealth fails to establish them. See Appellant’s Pa.R.A.P.
1925(b) Statement; see also Appellant’s Brief at 13-14. Accordingly, we
deem Appellant’s claim waived. See Garland, supra.Absent waiver, we note that Appellant’s claim is devoid of merit. We
review a challenge to the sufficiency of the evidence in the following
manner:
-6-
J-S65008-15
In determining whether there was sufficient evidentiary support
for a jury's finding [], the reviewing court inquires whether the
proofs, considered in the light most favorable to the
Commonwealth as verdict winner, are sufficient to enable a
reasonable jury to find every element of the crime beyond a
reasonable doubt. The court bears in mind that: the
Commonwealth may sustain its burden by means of wholly
circumstantial evidence; the entire trial record should be
evaluated and all evidence received considered, whether or not
the trial court's rulings thereon were correct; and the trier of
fact, while passing upon the credibility of witnesses and the
weight of the evidence, is free to believe all, part, or none of the
evidence.
Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations
omitted).
Here, Appellant suggests that the DNA evidence recovered from the
murder weapon was insufficient to establish that he was the shooter. See
Appellant’s Brief at 14. Even accepting Appellant’s premise, he nonetheless
fails to account for the additional, overwhelming evidence presented by the
Commonwealth, including for example, (1) eyewitness testimony that
Appellant murdered the victim, (2) physical evidence of gunpowder residue
found on Appellant’s hands, and (3) circumstantial evidence that Appellant
took the murder weapon from an acquaintance’s home. Viewed in the light
most favorable to the Commonwealth, as verdict winner, the evidence was
sufficient to enable a reasonable jury to convict Appellant of the crimes
charged.
Appellant also asserts that the verdict was against the weight of the
evidence. Specifically, though Appellant concedes that his DNA was
-7-
J-S65008-15
recovered from the slide area of the murder weapon, he argues that if he
had been the shooter, “his DNA would have been all over the pistol grip and
trigger [of the murder weapon].” Appellant’s Brief at 12.
A motion for a new trial based on the weight of the evidence concedes
that there is sufficient evidence to sustain the verdict. See
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). It is
“addressed to the discretion of the trial court.” Id. “The trial court will
award a new trial only when the jury's verdict is so contrary to the evidence
as to shock one's sense of justice.” Commonwealth v. Cousar, 928 A.2d
1025, 1036 (Pa. 2007). We will grant appellate relief only “where the facts
and inferences of record disclose a palpable abuse of discretion.” Id. A trial
court’s decision to deny a motion for a new trial is the “least assailable” of its
rulings. Id.Appellant’s suggestion that the DNA evidence against him was
inadequate merely raises a question of fact to be resolved by the jury. The
evidence of Appellant’s guilt was overwhelming, and the jury’s verdict was in
accordance with that evidence. Accordingly, we discern no abuse of
discretion in the trial court’s denial of Appellant’s weight of the evidence
claim.
Judgment of sentence affirmed.
-8-
J-S65008-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2015
-9-