Com. v. Dockery, T.

J-S75036-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYREE DOCKERY,
Appellant No. 1423 EDA 2014
Appeal from the Judgment of Sentence entered April 11, 2014,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0004934-2012
BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.
MEMORANDUM BY ALLEN, J.: FILED DECEMBER 04, 2014
Tyree Dockery (“Appellant”) appeals from the judgment of sentence
imposed after a jury convicted him of third degree murder, firearms not to
be carried without a license, and possession of an instrument of crime.1 We
affirm.
The trial court summarized the pertinent facts and procedural history
as follows:
On December 12, 2005, at approximately 11:30 p.m.,
[Appellant] Tyree Dockery, and Denzel Deverteuil were standing
at a bus stop with friends on “G” Street in Philadelphia. Juan
Hayes parked his blue Chevy Caprice station wagon and
approached Deverteuil demanding a fistfight over the late
repayment of a loan. Both agreed it would be a fair fistfight
without weapons. Hayes opened his jacket to confirm his lack of
a weapon. Hayes and Deverteuil fought for five minutes before
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1
18 Pa.C.S.A. §§ 2502, 6106 and 907.
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Deverteuil refused to fight any longer and walked off. Hayes
told Deverteuil the fight was not over and that he would be back.
Hayes went to pick up his brother-in-law, the decedent,
Cleo Flynn, explaining that he needed Flynn to serve as back up.
Hayes and Flynn, without weapons, returned to the 4600 block
of “G” Street. As Hayes was parking, Deverteuil walked away
down the block. Deverteuil saw a man resembling [Appellant]
cross his path, running in the direction of Hayes and Flynn.
At 11:52 p.m., immediately after Hayes and Flynn exited
their vehicle, [Appellant] appeared from behind a car and fired
three to four rapid shots at Hayes and Flynn. Both Hayes and
Flynn fell to the ground. Hayes remained on the ground until the
firing stopped.
When Hayes became aware that Flynn was not moving, he
put Flynn in the passenger seat of his station wagon and drove
towards the hospital. While en route to the hospital, Hayes
flagged down a police car on Hunting Park Avenue. Fire rescue
transported Flynn to Temple University Hospital where he was
pronounced dead from a single gunshot wound to the head at
12:31 a.m. The Medical Examiner recovered a nine millimeter
bullet from Flynn’s body.
On December 13, 2005, at 12:50 a.m., Crime Scene Unit
Technician Karen Auerweck arrived at the scene of the murder.
Auerweck recovered three fired cartridge casings (FCCs) and one
bullet fragment from the scene. That same day, Crime Scene
Officer Fidler recovered bloody clothing on the front passenger
seat of Hayes’ vehicle and a bullet that was lodged in the
vehicle’s door.
According to Police Officer Norman DeFields, an expert in
firearms identification, the three FCCs recovered from the scene
were all nine millimeter Lugers manufactured by Federal. These
FCCs were consistent with being fired from the same firearm as
the shape of the firing pin that struck the primer of each FCC
had the same rectangular shape. [sic] The bullets recovered
were all nine millimeter. The bullets were consistent with being
fired from a nine millimeter semiautomatic handgun.
During the summer of 2011, [Appellant] and William Razor
visited Sharlita Razor in North Carolina. [Appellant] confessed to
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committing a murder in Philadelphia. [Appellant] admitted he
had witnessed a fistfight between his friend and another male.
He claimed that the male had pointed a gun at his friend, but did
not use it. [Appellant] explained that after seeing this, he went
into his brother, Tellis Dockery’s house, to arm himself. When
he came back outside the fight had dispersed.
Upon hearing a car approach, [Appellant] fired rapidly
three or four times towards the two males who exited the
vehicle. [Appellant] admitted that he did not know if the two
males who exited the vehicle were the same men who had been
involved in the earlier fistfight. After the shooting, [Appellant]
retreated to his brother’s house and told [his] brother and his
brother’s wife what had happened. [Appellant’s] brother called
their sister and they both arranged for [Appellant] to take a bus
to Fayetteville, North Carolina the next morning.
In the summer of 2011, Detective William Kelhower was
assigned to the case after Dorothy Dixon, [Appellant’s] aunt and
former Philadelphia Police Officer, called the Philadelphia Police
Department and informed them she had learned from her
daughter, Sharlita Razor, that [Appellant] had confessed to a
shooting in Philadelphia during his recent stay with Sharlita
Razor and William Razor. Both Sharlita and William Razor gave
statements to police describing [Appellant’s] confession to the
murder.
On December 12, 2011, police re-interviewed Deverteuil.
In his December 20, 2005 statement to homicide detectives,
Deverteuil identified the shooter by the nickname “Buddha,”
describing him as a dark skinned male of average build, about
six feet tall, with dreadlocks. In 2011, Deverteuil identified
[Appellant] from a police photo array as the man who shot
Flynn.
On January 12, 2012, Detective Kelhower conducted a
second interview of Hayes. In his December 12, 2005 statement
to police, Hayes described the shooter as a dark skinned male,
about twenty to twenty two years old, around six feet tall,
weighing about 185 pounds, with a wide nose, some facial hair,
and dreadlocked hair. During the second interview in 2012,
Hayes identified [Appellant] as the shooter from a police photo
array.
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Both Hayes and Deverteuil identified [Appellant] as the
shooter at trial.
On February 14, 2012, the United States Marshal Service
arrested [Appellant] in North Carolina. On March 1, 2012, after
returning to Philadelphia, [Appellant] told Detective Kelhower
that his nickname was “Buddha.”
Trial Court Opinion, 6/18/14, at 2-5 (citations to notes of testimony
omitted).
Appellant was charged with the aforementioned crimes, and a jury trial
commenced on January 7, 2014. On January 13, 2014, the jury returned its
guilty verdicts. Following a hearing on April 11, 2014, the trial court
sentenced Appellant to twenty to forty years of imprisonment for third
degree murder, and a consecutive two and a half to five years for carrying a
firearm without a license, with no further penalty for possessing an
instrument of crime. This appeal followed. Both Appellant and the trial
court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE
CHARGE OF THIRD DEGREE MURDER BECAUSE THE
COMMONWEALTH FAILED TO DISPROVE BEYOND A
REASONABLE DOUBT THAT APPELLANT KILLED THE VICTIM
IN SELF-DEFENSE?
2. DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION
BY REFUSING TO CHARGE THE JURY ON THE DEFENSE OF
SELF-DEFENSE?
Appellant’s Brief at 3.
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In his first issue, Appellant concedes that the evidence was sufficient
to support a verdict of voluntary manslaughter, but not the verdict of third-
degree murder, because the Commonwealth failed to disprove Appellant’s
justification of imperfect self-defense. Appellant’s Brief at 15-21.
Our standard when reviewing the sufficiency of the evidence is
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to
the Commonwealth as verdict-winner, are sufficient to establish
all elements of the offense beyond a reasonable doubt. We may
not weigh the evidence or substitute our judgment for that of the
fact-finder. Additionally, the evidence at trial need not preclude
every possibility of innocence, and the fact-finder is free to
resolve any doubts regarding a defendant's guilt unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. When evaluating the credibility and weight of
the evidence, the fact-finder is free to believe all, part or none of
the evidence. For purposes of our review under these principles,
we must review the entire record and consider all of the
evidence introduced.
Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006).
“Third degree murder occurs when a person commits a killing which is
neither intentional nor committed during the perpetration of a felony, but
contains the requisite malice. Malice is not merely ill-will but, rather,
wickedness of disposition, hardness of heart, recklessness of consequences,
and a mind regardless of social duty.” Commonwealth v. Truong, 36 A.3d
592, 597 (Pa. Super. 2012) (citations omitted); 18 Pa.C.S.A. § 2502.
“Malice may be inferred from the use of a deadly weapon on a vital part of
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the victim's body. Further, malice may be inferred after considering the
totality of the circumstances.” Truong, 36 A.3d at 597 (citations omitted).
Here, the trial court explained:
[T]wo eyewitnesses, Hayes and Deverteuil, identified
[Appellant] as the shooter. Both eyewitnesses gave a physical
description of the shooter in 2005 and later identified [Appellant]
as the shooter from a police photo array, Deverteuil in 2011 and
Hayes in 2012. Hayes and Deverteuil both confirmed those
identifications at trial. The testimony of [Appellant’s] cousins
corroborated Hayes’ and Deverteuil’s identifications as
[Appellant] confessed to a shooting factually identical to Flynn’s
murder. This evidence is sufficient to establish the identity of
[Appellant] as the murderer.
The evidence also established that [Appellant] acted with
malice. [Appellant] armed himself with a firearm and waited for
Hayes to return. Although [Appellant] confessed he did not
know who was emerging from Hayes’ vehicle, he immediately
began shooting at the two individuals. [Appellant] fired three to
four shots in rapid succession, shooting Flynn in the head.
[Appellant] shot Flynn in a vital part of the body; thus malice is
presumed.
Trial Court Opinion, 6/18/14, at 6-7.
We agree with the trial court that this evidence, if believed by the jury,
was sufficient to support Appellant’s third-degree murder conviction.
Appellant argues, however, that the evidence supported only a voluntary
manslaughter conviction because the Commonwealth failed to disprove his
justification of imperfect self-defense. The law provides for a conviction of
voluntary manslaughter where a person “knowingly and intentionally kills an
individual” under the unreasonable belief that the killing was justified.
Commonwealth v. Rivera, 983 A.2d 1211, 1218 (Pa. 2009) (citing 18
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Pa.C.S.A. § 2503(a) and (b)). Such “unreasonable belief of self-defense
voluntary manslaughter,” or “imperfect self-defense”, results in a conviction
for the offense of voluntary manslaughter if the jury believes that the
defendant held “an unreasonable rather than a reasonable belief that deadly
force was required to save [his or her] life,” and “all other principles of
justification under 18 Pa.C.S. § 505 ... have been met.” Commonwealth v.
Sanchez, 82 A.3d 943, 980 (Pa. 2013) (citations and internal quotations
omitted).
The evidentiary elements necessary to prevail on a justification
defense are that the defendant (a) reasonably believed that he
was in imminent danger of death or serious bodily injury and
that it was necessary to use deadly force against the victim to
prevent such harm; (b) was free from fault in provoking the
difficulty which culminated in the slaying; and (c) did not violate
any duty to retreat. [See]18 Pa.C.S. § 505.
Sanchez, 82 A.3d at 980 (citations omitted).
As the trial court noted, Hayes credibly testified that neither he nor
Flynn “had a weapon on their person at anytime during the night of the
incident.” Trial Court Opinion, 6/18/14, at 8. Moreover, Appellant was not
involved in the initial fight between Hayes and Deverteuil, and the jury could
have reasonably inferred that there was no danger to Appellant as he was
not involved in the confrontation. Id. Additionally, Appellant admitted that
before he began shooting, he did not know if the two men exiting the vehicle
had been involved in the initial confrontation, and that he did not know their
identity at that time. Id. Moreover, as the trial court observed:
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[Appellant] had a sufficient cooling off period, and time to
retreat as there were about ten minutes between when Hayes
left the first fight and when he returned to “G” Street. It is clear
that [Appellant] violated his duty to retreat. Even if [Appellant]
possibly believed he was in danger after the first fight, a fight
with which he was not involved, [Appellant] left the scene and
was in complete safety at his brother’s house. Instead of
remaining in the house, [Appellant] armed himself with a firearm
and returned to the scene. Even upon seeing the men exit the
car on “G” Street, [Appellant] could have decided to re-enter his
brother’s home. Instead, [Appellant] chose to shoot at strangers
who were getting out of their parked car on a residential street.
[Appellant] could not have reasonably believed he was
ever in imminent danger of serious bodily harm from Hayes or
Flynn. [Appellant] had no right to use deadly force to repel the
non-existent threat of danger.
Trial Court Opinion, 6/18/14, at 8-9 (citations to notes of testimony
omitted).
We find no error in the trial court’s determination. Although Appellant
presented a claim of imperfect self-defense at trial, including testimony that
he believed that Hayes and Flynn intended to confront him and not
Deverteuil on the date of the incident, and that he thought he was in
danger, the jury evaluated the credibility of the witnesses, and rejected
Appellant’s justification defense. Conversely, the jury credited the
Commonwealth’s evidence, which supported a finding that Appellant did not
act in self-defense, imperfect or otherwise. We may not reweigh the
evidence or disturb the jury's credibility findings with regard to Appellant’s
imperfect self-defense claim.
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Appellant next argues that the trial court erred in declining to issue a
self-defense instruction to the jury. Appellant’s Brief at 21-29. We have
explained:
Before the issue of self-defense may be submitted to a
jury for consideration, a valid claim of self-defense must be
made out as a matter of law, and this determination must be
made by the trial judge. Such a claim may consist of evidence
from whatever source. Such evidence may be adduced by the
defendant as part of his case, or conceivably, may be found in
the Commonwealth's own case in chief or be elicited through
cross-examination. However, such evidence from whatever
source must speak to three specific elements for a claim of self-
defense to be placed in issue for a jury's consideration.
Thus, as provided by statute and as interpreted through
our case law, to establish the defense of self-defense it must be
shown that[:] a) the slayer was free from fault in provoking or
continuing the difficulty which resulted in the slaying; b) that the
slayer must have reasonably believed that he was in imminent
danger of death or great bodily harm, and that there was a
necessity to use such force in order to save himself therefrom;
and c) the slayer did not violate any duty to retreat or to avoid
the danger.
If there is any evidence from whatever source that will
support these three elements then the decision as to whether
the claim is a valid one is left to the jury and the jury must be
charged properly thereon by the trial court.
Commonwealth v. Mayfield, 585 A.2d 1069, 1070–71 (Pa. Super. 1991)
(en banc) (citations omitted).
Upon review, we find no error in the trial court’s determination that
Appellant failed to present a valid claim of self-defense as a matter of law.
Appellant failed to present evidence that he was free from fault, that he
reasonably believed that he was in imminent danger of death or great bodily
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harm and that there was a necessity to use such force to save himself, and
that he did not violate any duty to retreat or to avoid the danger.
Accordingly, the trial court’s refusal to issue a self-defense instruction did
not constitute an abuse of discretion. For the foregoing reasons, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2014
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