Com. v. Wingate, H.

J-S54007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HUBERT W. WINGATE :
:
Appellant : No. 1358 WDA 2017
Appeal from the Judgment of Sentence April 13, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006412-2015
BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY PANELLA, J.: FILED NOVEMBER 09, 2018
After a bench trial, the court found Hubert Wingate guilty of, among
other crimes, the first-degree murder of Andre Gray. Wingate argues the
evidence at trial was insufficient to establish he was the person who shot Gray
in the head. After careful review, we affirm.
Wingate’s challenge to the sufficiency of the evidence raises a pure
question of law. See Commonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa.
2017). We review the claim de novo, and review the entire record before us.
See id.
We examine whether the evidence admitted at trial is capable of
supporting a finding on every element of the offense at issue. See
Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). We view the
evidence in the light most favorable to the verdict winner, and draw all
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reasonable inferences from it. See id. The Commonwealth’s burden may be
met solely through circumstantial evidence. See id. The finder of fact is
entitled to believe all, some, or none of the evidence presented. See
Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008).
At trial, there was no dispute that Gray was murdered. The only factual
dispute centered on who killed Gray. And this dispute was essentially binary:
Raymond Schifino testified that Wingate admitted to shooting Gray, while
Wingate’s testimony strongly implied Schifino was the shooter.
Schifino testified Wingate texted him on the night of the murder,
threatening to kill Gray. See N.T., Bench Trial, 1/9/17, at 33. Later that night,
Wingate told Schifino he had killed Gray. See id. Wingate vaguely asked
Schifino to help him in the morning. See id., at 34.
The next morning, Wingate picked up Schifino, driving Gray’s car. See
id. The pair drove to a different neighborhood and smoked marijuana until it
got dark. See id., at 35. At some point after 10 p.m., Wingate drove to Gray’s
home. See id.
They entered the home through an open back door. See id. As they
entered the living room, Schifino saw Gray lying dead on some cushions on
the floor. See id. Wingate asked Schifino to help him clean up and dispose of
Gray’s body. See id., at 36.
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They wrapped up Gray’s body in sheets that they found under the body.
See id. Wingate told Schifino to kill Gray’s dog, and use the dog’s blood to
cover any of Gray’s blood that remained. See id., at 36-37.
A noise spooked them, so they placed Gray’s body in a garbage can to
transport it outside. See id., at 37-38. They put Gray and his dog’s body in
the backseat of Gray’s car. See id., at 38. They stole Gray’s laptop computer,
PlayStation console, and some of his clothing and placed them in the trunk of
the car. See id. The two then disposed of Gray’s body in a river near a friend’s
home. See id., at 40.
The trial court was entitled to credit this testimony. As a matter of law,
it is sufficient to support a finding that Wingate committed the murder.
Wingate concedes that “as a general rule, a verdict may rest on the
word of even one witness alone.” Appellant’s Brief, at 15. However, he argues
that pursuant to Commonwealth v. Karkaria, 625 A.2d 1167, 1170 (Pa.
1993), Schifino’s testimony is so unreliable that it cannot support a verdict as
a matter of law.
Wingate calls our attention to Schifino’s criminal history. He also
correctly notes Schifino aggressively negotiated a reduced sentence in
exchange for his testimony. Originally, the Commonwealth offered Schifino a
sentence of 6 to 12 years in prison in exchange for his testimony, but Schifino
rejected the offer. See N.T., Bench Trial, 1/9/17, at 64. Ultimately, Schifino
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received a 2 to 6 year sentence for his involvement in disposing of Gray’s
body. See id., at 65.
Wingate further highlights how forensic evidence and other eyewitness
testimony contradicted Schifino’s testimony. For example, Schifino testified
that Wingate shot Gray’s corpse while it was floating in the river in an attempt
to get it to sink. See id., at 59. Schifino believed Wingate shot the body four
or five times. See id. However, Jimmie Smith, M.D., only testified to the
existence of one bullet wound in Gray’s body. See id., at 19-20.
When evidence at trial is “so unreliable and/or contradictory as to make
any verdict based thereon pure conjecture,” the evidence is insufficient to
support the verdict as a matter of law. Karkaria, 625 A.2d at 1170 (citations
omitted). The determination of whether evidence is so unreliable and
contradictory to support a verdict is “fundamentally an individualized, case-
by-case endeavor.” Commonwealth v. Brown, 52 A.3d 1139, 1166 (Pa.
2012).
In Karkaria, our Supreme Court threw out a conviction where the victim
testified the defendant had assaulted her at times when it was undisputed the
defendant was not physically present. See id., at 1171. After reviewing the
record, we conclude the circumstances pointed out by Wingate do not render
the jury’s verdict mere surmise or conjecture as they do not rise to the level
of the inconsistencies present in Karkaria.
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Certainly, Schifino was not the most credible witness to ever take the
stand. But his testimony was not so unreliable as to be insufficient as a matter
of law. Indeed, his testimony aligned well with other circumstantial evidence.
For example, when Wingate was taken into custody on an unrelated warrant,
he was found with the murder weapon in his pocket. See N.T., Bench Trial,
2/10/17, at 183, 218-219. Thus, Schifino’s testimony was not wholly
unreliable.
Under these circumstances, we conclude the evidence was sufficient, as
a matter of law, to identify Wingate as the perpetrator. Since this is the only
issue raised by Wingate on appeal, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2018
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