Com. v. Tatum, S.

• Court: Superior Court of Pennsylvania
• Decided: May 20, 2025
• Docket: 340 WDA 2024
• Status: Unpublished

Opinion

J-S11043-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAMAR TATUM : : Appellant : No. 340 WDA 2024

Appeal from the Judgment of Sentence Entered February 6, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0007415-2022

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAMAR TATUM : : Appellant : No. 591 WDA 2024

Appeal from the Judgment of Sentence Entered February 6, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008274-2023

BEFORE: MURRAY, J., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED: May 20, 2025

Shamar Tatum (“Tatum”) appeals from the judgment of sentence

imposed following his convictions for firearms not to be carried without a

license, tampering with or fabricating physical evidence, and persons not to

possess firearms.1 We affirm.

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1 See 18 Pa.C.S.A. §§ 6106(a)(1), 4910(1), 6105(a)(1). J-S11043-25

On the night of July 15, 2022, Detective Santino Mammarelli and his

partner, Detective Jeffrey Tomer, were patrolling the Hill District area of

Pittsburgh in an unmarked vehicle and wearing plain clothes.2 Detective

Mammarelli, having made hundreds of narcotics and firearms arrests there

previously, was very familiar with the neighborhood, and considered it a high-

crime area. After turning into a city housing project, the detectives observed

Tatum crossing the street directly in front of their patrol vehicle with a large,

weighted, “L-shaped” object in the pocket of his baggy, thin, “semi-

translucent” gym shorts, causing the shorts to droop down on that side. N.T.,

11/9/23, at 32, 47. Based on their experience and training, both detectives

believed this object was a firearm, with Detective Tomer emphasizing that “he

could almost see the [firearm’s] barrel sticking down off the body.” Id. at 47.

Detective Mammarelli was also very familiar with Tatum, having encountered

him “hundreds of times” and “almost daily or every other day” while patrolling

the area over the past four years, and knew that Tatum did not have a

concealed carry permit. Id. at 35.

After bringing their patrol vehicle to a stop alongside and slightly ahead

of a nearby parked vehicle, the detectives watched as Tatum approached and

“ducked down” behind the “passenger[-]side front . . . hood area” of that

parked vehicle. Id. at 34. This vehicle had an individual in the driver’s seat, ____________________________________________

2 Although the detectives described their attire as “plain clothes,” they clarified

that they were wearing their police badges along with black, bulky vests that displayed “POLICE” on the front in yellow block lettering, an outfit the detectives typically wore while on duty. N.T., 11/9/23 at 30, 42, 46.

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but nobody was in or standing beside the passenger’s seat, even though its

door was open. While Detective Mammarelli could not see Tatum from his

vantage point, Detective Tomer was able to look through the vehicle’s open

driver-side window and passenger-side door to see Tatum crouching and

reaching under the vehicle with his right hand. Detective Tomer informed his

partner that he believed Tatum placed a firearm underneath the vehicle, and

both detectives exited the vehicle. As the detectives approached Tatum, who

was now walking towards the front of the vehicle, Detective Tomer noticed

that Tatum no longer had anything in his shorts’ pocket. Immediately

thereafter, Tatum turned and ran away.

Although the detectives called out to Tatum and briefly gave chase on

foot, they quickly cut their pursuit short to search for the firearm that they

suspected Tatum had been carrying. Detective Tomer explained that he

decided to search for the firearm rather than chase Tatum due to past

experiences “where there’s people around, and [he] would chase” and catch

a suspect first, only to return and find the firearm missing. Id. at 50.

Detective Tomer found a loaded firearm underneath the parked vehicle where

he observed Tatum reaching only “a matter of seconds” prior. Id. While

Detective Tomer acknowledged that other individuals were nearby at the time,

he confirmed that nobody other than Tatum had crouched behind or reached

under the vehicle. After recovering the firearm, the detectives returned to

their vehicle to continue their pursuit of Tatum with the assistance of other

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officers in the area. Police thereafter arrested Tatum and charged him with

each of the above-listed crimes.3

The matter proceeded to a bifurcated jury/non-jury trial at which the

Commonwealth presented testimony from both Detective Mammarelli and

Detective Tomer describing the above sequence of events. The

Commonwealth additionally presented video surveillance footage taken from

a local building that captured the encounter from the passenger’s side of the

parked vehicle. See id. at 62. While reviewing the footage before the jury,

Detective Tomer confirmed that he could see Tatum wearing basketball shorts,

walking “directly in front of” his vehicle’s headlights and towards the nearby

parked vehicle, where Tatum subsequently crouched down and reached under

the vehicle. Id. at 64, 66-67. The footage similarly showed that no one else

approached the vehicle prior to the detective’s recovery of the firearm. See

id. at 68. The Commonwealth also established that the recovered firearm was

operable, and that Tatum did not have a license to carry a firearm nor a

concealed carry permit on the date of his arrest. Lastly, Detective Tomer

explained that he did not have the police crime lab test the gun for

fingerprints, as he believed that when he recovered the firearm without

gloves, he contaminated it to the extent that any fingerprints recovered would

be his. Tatum did not testify in his defense.

3 Prior to trial, Tatum filed a counseled motion to sever the charge of persons

not to possess firearms from the Commonwealth’s remaining two charges. The trial court granted the motion and docketed the charge separately.

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At the conclusion of the trial, the jury convicted Tatum of firearms not

to be carried without a license and tampering with or fabricating physical

evidence. The matter then proceeded immediately to a non-jury trial for the

remaining charge of persons not to possess firearms. The Commonwealth

introduced Tatum’s prior conviction for aggravated assault, and the trial court

found Tatum guilty of this charge. The trial court postponed sentencing on all

three convictions for the preparation of a pre-sentence investigation report.

On February 6, 2024, the trial court imposed an aggregate sentence for

all three convictions of forty to eighty months’ incarceration, followed by a

one-year probationary term. Tatum filed a counseled post-sentence motion

at each docket, challenging, inter alia, the weight of the evidence underlying

his convictions.4 The trial court denied the motions. Tatum filed a timely

notice of appeal at each docket, and both he and the trial court complied with

Pa.R.A.P. 1925.

Tatum presents the following issue for our review: “Whether the trial

court erred in denying . . . Tatum’s post-sentence motion[s] requesting a new

trial where his convictions for person not to possess firearms, firearms not to

be carried without a license, and tampering with physical evidence were

4 Although Tatum initially only filed a timely post-sentence motion for the two

convictions docketed at CP-02-CR-0007415-2022, he subsequently filed a counseled PCRA petition to reinstate his post-sentence and direct appeal rights at docket number CP-02-CR-0008274-2023, which the PCRA court granted on April 22, 2024. Accordingly, Tatum filed a timely post-sentence motion challenging the weight of the evidence for each of his convictions at both dockets.

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against the weight of the evidence?” Tatum’s Brief at 8 (unnecessary

capitalization omitted).

Tatum argues that each of his convictions were against the weight of

the evidence. As our Supreme Court has explained:

A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.”

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations and

footnote omitted). “The weight of the evidence is exclusively for the finder of

fact, who is free to believe all, none or some of the evidence and to determine

the credibility of the witnesses.” Commonwealth v. Talbert, 129 A.3d 536,

545 (Pa. Super. 2015) (brackets and citation omitted). Thus, in order for a

defendant to prevail on a challenge to the weight of the evidence, “the

evidence must be so tenuous, vague and uncertain that the verdict shocks the

conscience of the trial court.” Id. at 546 (citation omitted).

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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:

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. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted,

emphasis in original).

Tatum argues that the verdicts were against the weight of the evidence

as they relate to each of his convictions, as the Commonwealth’s evidence

was weak and circumstantial. Preliminarily, Tatum points out that the trial

court incorrectly found that the vehicle Tatum ducked behind was unoccupied,

even though both detectives testified that a person was occupying the driver’s

seat at the time. Tatum further highlights that in addition to the driver of this

vehicle, there were other people present on the scene as well. Accordingly,

Tatum asserts that because “the detectives never bothered to follow up or

investigate” the other people present, the detectives prematurely decided that

Tatum had to be the owner of the firearm. Tatum’s Brief at 21. Absent such

an investigation, Tatum claims that the Commonwealth’s circumstantial

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evidence cannot properly refute the possibility that “[t]he firearm could have

already been under the car” prior to the detectives’ arrival, or that it “was

abandoned by” someone else present at the time. Id. at 21-22. He contends

that these theories are especially viable given Detective Mammarelli’s

description of the neighborhood “as a ‘high crime’ area where he had made

hundreds of [firearm] arrests[,]” and Detective Tomer’s concerns that another

person would take the firearm if he were to momentarily leave. Id. at 21.

Tatum additionally argues that “[t]he trial court [improperly] relied on

testimony that . . . Tatum had a heavy object in his gym shorts that the

detectives identified as a gun.” Id. at 22. Tatum essentially maintains that,

because the Commonwealth “did not attempt to put forward any direct

physical evidence” tying Tatum to the firearm, or any witnesses who saw

Tatum with the firearm itself, the Commonwealth’s reliance on two

observations of “little more than a bulge [in Tatum’s pocket as he] walked

across a dark street at night[,]” was too speculative and unreliable to conclude

that he possessed the firearm in question. Id. at 23. Accordingly, Tatum

contends that because “the detectives [simply] found a firearm, saw an

individual they knew did not have a license, and assumed the rest of the

details without further investigation[, his guilty verdicts] should shock the

conscience of” the court. Id. at 24.

The trial court considered Tatum’s weight challenge and concluded that

it lacked merit. The court reasoned that:

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Two witnesses with extensive experience and training in the identification of concealed weapons testified that they observed a bulge in [Tatum’s] shorts that appeared to them to be a firearm. They observed [Tatum] obscure himself from view and reach under an unoccupied car. They observed [Tatum], now without the bulge in his pocket, walk away from the car and run from the police. They recovered a firearm under the car. The jury viewed video of the event. It neither shocks the court’s conscience nor offends the court’s sense of justice that the triers of fact reasonably concluded that [Tatum] carried a concealed weapon and tried to hide it from the police. Thus, the weight of the evidence claim must fail.

Trial Court Opinion, 7/19/24, at 5 (unnecessary capitalization omitted).

Based on our review, we discern no abuse of discretion by the trial court

in denying Tatum’s challenge to the weight of the evidence.5 As explained

above, this Court will give the gravest consideration to the findings and

reasons advanced by the trial court judge when reviewing its determination

as to whether the verdict is against the weight of the evidence. See Clay, 64

A.3d at 1055. Moreover, one of the least assailable reasons for denying a new

trial is the lower court’s conviction that the verdict was not against the weight

of the evidence. See id.

Here, Tatum is essentially asking this Court to reweigh the evidence to

accord no weight to the trained detectives’ identification of the object in

Tatum’s pocket as the recovered firearm in question, or to the surveillance

5 We note that although the trial court stated that the parked vehicle was unoccupied, both detectives testified that the vehicle had someone sitting in the driver’s seat. See N.T., 11/9/23, at 41, 47. However, this insignificant error does not affect our disposition of Tatum’s weight claims.

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footage supporting their version of events. This, we cannot do. See Talbert,

129 A.3d at 545 (holding that the weight to be accorded to the evidence and

testimony presented at trial was exclusively for the fact-finder, which was free

to believe all, part, or none of the evidence and testimony and to determine

credibility). Rather, this Court’s role is to review the exercise of discretion by

the trial court in ruling on the weight claim. In this regard, we discern no

abuse of such discretion.

Importantly, we note that the trial court judge determined that Tatum’s

guilty verdicts did not shock her conscience. Moreover, the trial court heard

testimony from both detectives present on the scene, each with multiple years

of training and experience as it relates to identifying concealed firearms and

making firearm arrests, and each detective was certain that Tatum had a

firearm in his shorts’ pocket. Although neither of the detectives saw the gun

itself, they came to this conclusion based on their ability to see a clear outline

of a firearm coming through Tatum’s thin, “semi-translucent,” and baggy,

mesh gym shorts. N.T., 11/9/23, at 32, 47. Further Detective Tomer never

lost sight of Tatum between the time Tatum ducked down and reached under

a nearby parked vehicle, and when Tatum walked away from the vehicle

without any bulge in his pocket. Similarly, neither detective observed any

other person approach or reach under the vehicle prior to the recovery of the

firearm. Lastly, the trial court recognized that the Commonwealth presented

the video surveillance footage to the jury, which captured the encounter and

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showed: (1) Tatum ducking and crouching down by the front of the parked

vehicle; and (2) that no one close approached the vehicle prior to the

detectives’ recovery of the firearm. On this record, we discern no abuse of

discretion by the trial court in denying Tatum’s weight challenge, and we

affirm the judgment of sentence.

Judgment of sentence affirmed.

5/20/2025

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