Com. v. Whitmire, M.

• Court: Superior Court of Pennsylvania
• Decided: April 21, 2016
• Docket: 2694 EDA 2015
• Status: Unpublished

Opinion

J-S23041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : MICHAEL WHITMIRE : : Appellant : : No. 2694 EDA 2015

Appeal from the Judgment of Sentence May 1, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001673-2014

BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED April 21, 2016

Appellant, Michael Whitmire, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

convictions, after a jury trial, for second degree murder,1 robbery,2

possession of a firearm without a license,3 possession of a firearm on the

streets of Philadelphia,4 and possession of an instrument of crime.5 He

challenges the weight of the evidence. We affirm.

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 2502(b). 2 18 Pa.C.S. § 3701. 3 18 Pa.C.S. § 6106. 4 18 Pa.C.S. § 6108. 5 18 Pa.C.S. § 907. J-S23041-16

We adopt the facts and procedural history set forth by the trial court’s

opinion. See Trial Ct. Op., 11/30/15, at 1-6. On May 1, 2015, the trial

court sentenced Appellant to the mandatory sentence of life in prison for the

murder charge. Appellant filed post-sentence motions challenging, inter

alia, weight of the evidence, which the trial court denied on August 25,

2015. The instant timely appeal followed wherein Appellant raises the

following single issue:

Did the trial court err in denying Appellant’s post-sentence Motion because Appellant’s conviction is against the weight of the evidence in that all of the evidence against Appellant was circumstantial and speculative and did not surpass the reasonable doubt standard?

Appellant’s Brief at 4.

Appellant argues that his conviction was against the weight of the

evidence because no eyewitness testimony connected him to the murder and

any DNA, fingerprint, or blood splatter evidence against him was either

nonexistent or easily explained. He also avers that the main witness against

him, Jamillah Reed, was not credible as she was “an admitted liar and thief.”

Id. at 10-11.

When considering challenges to the weight of the evidence, we apply

the following precepts:

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 witnesses.

-2- J-S23041-16

Appellate review of a weight claim is a review of the exercise of discretion, not 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. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)

(internal quotation marks and citations omitted). Further, “[i]n 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 court.” Id. at 546 (internal quotation marks and

citation omitted).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Glenn B.

Bronson, we conclude Appellant’s issue merits no relief. The trial court’s

opinion comprehensively discusses and properly disposes of the question

presented. See Trial Ct. Op. at 7-14 (finding the substantial evidence

presented fully supported Appellant’s conviction and the verdict was not

contrary to the weight of the evidence where (1) the testimony of Reed,

establishing the motive of a drug transaction gone wrong, was credible; (2)

-3- J-S23041-16

Appellant could not be excluded as a DNA contributor to evidence found in

the victim’s pockets; (3) a Facebook video established that Appellant had

been in possession of the same distinctive type of ammunition used to kill

the victim one week prior to the crime; (4) phone records established that

Appellant was the last person to call the victim prior to the murder; and (5)

Appellant stated to police that “if he told [police] what happened [to the

victim], his life would be over and that he would no longer see his

grandfather.”). Accordingly, we affirm on the basis of the trial court’s

opinion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/21/2016

-4- Circulated 03/31/2016 03:45 PM

IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DIVISION

COMMONWEALTH OF CP-51-CR-0001673-2014 PENNSYLVANIA CP-51-CR-0001673-2014Comm.v. 1/\llltrnire. Michael Opjnion

v. FILED

MICHAEL WHITMIRE II II II I7375373441 I II II I II I I II Ill Ill ~ov so 2015 Post Trlal Untt OPINION

BRONSON,J. November 30, 2015

On May 1, 2015, following a jury trial before this Court, defendant Michael Whitmire

was convicted of one count each of second-degree murder (18 Pa.C.S. § 2502), robbery (18

Pa.C.S. § 3701), possession of a firearm without a license (18 Pa.C.S. § 6106), possession ofa

firearm on the streets of Philadelphia (18 Pa.C.S. § 6108), and possessing an instrument of crime

(18 Pa.C.S. § 907). The Court immediately imposed the mandatory sentence of life in prison for

the murder charge (18 Pa.C.S. § 1102(b )). Defendant filed post-sentence motions, which the

Court denied on August 25, 2015.

Defendant has now appealed from the judgment of sentence entered by the Court on the

grounds that: 1) the evidence was insufficient to support the verdicts for robbery and second-

degree murder; and 2) the verdicts were against the weight of the evidence.1 Statement of Errors

Complained of on Appeal ("Statement of Errors") at i!1 1-2. For the reasons set forth below,

defendant's claims are without merit and the judgment of sentence should be affirmed.

1 Defendant's claims have been reordered for ease of analysis.

-. I . ,_ . \{ I. FACTUALBACKGROUND

At trial, the Commonwealth presented the testimony of Philadelphia Police Detective

John McNamee, Philadelphia Police Officers Jeffrey Holden, Tiffany Richardson, and Norman

DeFields, Pennsylvania Attorney General's Office Special Agent Patrick Mangold, Associate

Medical Examiner Dr. Bruce Wainer, Jamillah Reed, Sabrina Royals, Natalie Young, Patrick

Raytik, Lissette Vega, and Donald Price. Defendant did not present any testimony. Viewed in

the light most favorable to the Commonwealth as the verdict winner, the evidence established the

following.

Throughout 2012, Jamillah Reed obtained crack cocaine from Antiquon Greer (the

decedent). N.T. 4/28/15 at 66-68.2 Greer operated his drug dealing business as a delivery

service, and would drive to his purchasers in a red minivan in order to deliver their ordered

drugs. N.T. 4/28/15 at 68, 219-220. To buy her drugs, Reed would call or text Greer and

arrange a location where they would meet. N.T. 4/28/15 at 68-70, 219-220.

Sometime in the month of January, 2013, Reed met defendant th.roughthe online website

"Talking.com," N.T. 4/28/15 at 70. Reed and defendant talked about meeting to use crack

cocaine and have sex. N.T. 4/28/15 at 71. On January 19, 2013, at approximately 6:00 p.m.,

defendant called Reed and told her that he was near her location and wanted to meet up that day.

N.T. 4/28115at 75, 77. Reed met with defendant and went with him to his grandfather's home at

lih Street and Fairmount Avenue. N.T. 4/28/15 at 75-77. Reed then contacted Greer to buy

$100 of crack cocaine, to be paid for by defendant. N.T. 4/28/15 at 78-80. A short time later,

Greer arrived at the Fairmount location in his red minivan and Reed went outside to make the

deal. N.T. 4/28/15 at 81. Reed then went back into the home and she and defendant smoked the

crack cocaine. N.T. 4/28/15 at 83-84, 224. Later that night, into the early morning hours, 2 Greer was also identified as Ant. N.T. 4/28/15 at 66.

2 defendant provided another $100 to Reed, who called Greer to purchase more drugs. N.T.

4/28/15 at 84. During this second phone call, Greer told Reed to give defendant his phone

number, so that defendant could call Greer for additional drugs himself. N.T. 4/28/15 at 86.

Reed again met with Greer a short time later outside the Fairmount home, although defendant

also went outside and witnessed this second transaction. N.T. 4/28/15 at 85, 226. Reed and

defendant then returned to the home. N.T. 4/28/15 at 86.

At approximately 4:00 a.m. the next morning, January 20, 2013, defendant became

nervous that his grandfather would return home, so he and Reed decided to go to the Carlyle

Hotel, located a short distance from the Fairmount home. N.T. 4/28/15 at 86-89. Sometime later

that afternoon, after arriving at the hotel and smoking more cocaine, defendant asked Reed to

call Greer again for another drug purchase. N.T. 4/28/15 at 91; 4/29/15 at 54. Greer told Reed

that he would come down to the hotel, but that Reed would need to make a larger purchase

because Greer would have to go to work and would be unavailable to make additional drug runs

that day. N.T. 4/28/15 at 91-92. Reed relayed this information to defendant, who stated that he

would purchase $300 worth of cocaine, but that he would have to return to the Fairmount house

to get the money to pay for the larger purchase. N.T. 4/28/15 at 92-93. Defendant then left the

hotel, purportedly to get the money from the Fairmount home, while Greer headed to the hotel.

N.T. 4/28/15 at 94, 228-229.

Approximately ten to fifteen minutes after defendant left the hotel, defendant called Reed

and asked her to call Greer and have Greer meet defendant at the Fairmount home for the

transaction. N.T. 4/28/15 at 95. Reed called Greer, who agreed to meet defendant. N.T. 4/28/15

at 95-96. Defendant, meanwhile, contacted Greer via the landline telephone at the Fairmount

home at 5: 18 p.m. Reed attempted to call Greer several times awaiting defendant's return, with

3 no response from Greer. N.T. 4/28/15 at 97. Sometime later that evening, defendant returned to

the hotel sweating and "look[ing] deranged." N.T. 4/28/15 at 97-98. Defendant then asked

Reed: "Why your friend ain't never come pick me up? Where is he at? He never came and got

me." N.T. 4/28/15 at 98. Reed again attempted to contact Greer, with no response. N.T.

4/28/15 at 98; 4/29/15 at 56. After lying on the bed for approximately five minutes, defendant

jumped up and said "Did you hear that?" claiming to have heard a gunshot. N.T. 4/28/15 at 98-

99.

Sometime after 6:30 p.m., Reed stated that she was going to leave the hotel to get a pack

of cigarettes. N.T. 4/28/15 at 99. Defendant told Reed that he would go get the cigarettes and

left the hotel, but did not return. N.T. 4/28/15 at 99. When Reed called defendant to find out

why he did not return, defendant stated that he was at his house and that it was too cold to come

back to the hotel. N.T. 4/28/15 at 99. Reed then hung up on defendant, gathered her things, and

left the hotel. N.T. 4/28/15 at 100. As she exited the hotel, Reed saw police activity in the area,

including police blocking a van. N.T. 4/28/15 at 100.

Late that evening, at approximately 7:42 p.m., Officer Jeffrey Holden was on routine

patrol in the area of Ogden Street and Carlisle Street in Philadelphia, one block south of the

hotel, when he noticed a parked car with a black man behind the wheel, apparently sleeping.

N.T. 4/27/15 at 87-89, 102. All doors to the vehicle were closed. N.T. 4/27/15 at 98, 100;

4/28/15 at 15-16. Officer Holden approached the vehicle and noticed that the man, later

identified as Greer, had a bullet wound to his face and neck. N.T. 4/27/15 at 89. Officer Holden

alerted additional police resources and medical personnel, who pronounced Greer dead at the

scene. N.T. 4/27/15 at 89, 99. Later medical investigation revealed that the bullet that killed

Greer penetrated Greer's left internal carotid artery, killing him within minutes. N.T. 4/28/15 at

4 203, 206. Medical examination also revealed that the gun that was used to shoot Greer was

located less than a foot away from Greer's head when it fired. N.T. 4/28/15 at 210. Greer's front

pant pockets had been turned out and Greer had a pack of cocaine clenched in his left fist. N.T.

4/28/15 at 20, 34. Police found two credit cards, a photo identification, and $6 in Greer's back

right pocket. N. T. 4/29/15 at 11.

Police recovered one fired Hornady .45 caliber cartridge case from inside the vehicle.

N.T. 4/28/15 at 14, 34; 4/30/15 at 20. Police also recovered one fired projectile outside the

vehicle, consistent with the Hornady Critical Defense FTX type cartridge. N.T. 4/28/15 at 14,

19; 4/30/15 at 21. Blood was also found outside the vehicle, directly under where the driver side

door was positioned when opened, indicating that someone had opened the door before police

arrived at the scene. N.T. 4/28/15 at 16, 18, 31-32. Police detectives obtained a search warrant

for Greer's phone records, which lead detectives to obtain a search warrant for Reed's cell

phone. N.T. 4/29/15 at 33-39. Based on these phone records, police contacted Reed. N.T.

4/29/15 at 38-40.

On April 2, 2013, Reed provided a statement to police. N.T. 4/28/15 at 102, 121-124.

Reed further provided police with her cell phone number as well as phone numbers for Greer and

defendant. N.T. 4/28/15 at 103-104. Reed also identified defendant as the person she was with

on the day that Greer was shot. N.T. 4/28/15 at 128. Police obtained additional search warrants

for defendant's phone records, which showed that a call had been made to Greer on January 20,

2013, from the Fairmount home landline just prior to Greer's death. N.T. 4/29/15 at 41-44.

Police contacted defendant on April 8, 2013, and asked him to come in to police

headquarters. N. T. 4/29/ 15 at 59. However, despite agreeing to come in, defendant did not meet

with police at the scheduled time. N.T. 4/29/15 at 60. On April 19, 2013, defendant contacted

5 his cousin to ask if defendant had any outstanding warrants because "homicide keep running

around asking questions about me." N.T. 4/29/15 at 69-71.

On May 2, 3, and 22, 2013, defendant contacted Reed via Facebook and asked Reed to

call him to talk about Greer. N.T. 4/28/15 at 130, 132- 136. When Reed did so, defendant told

Reed that he had seen detectives at Reed's house and that Greer had been killed. N.T. 4/28/15 at

136. A short time after talking with defendant on May 22, Reed saw a video that defendant had

posted on his Facebook page where defendant was handling a gun. N.T. 4/28/15 at 137. The

firearm in the video was a Glock Model 21 .45 caliber semiautomatic pistol. N.T. 4/30/15 at 33,

36. The video also showed defendant handling Hornady Critical Defense FTX ammunition.

N.T. 4/30/15 at 39AO.

Police executed a search warrant for defendant's Facebook account on June 7, 2013, and

based on the handgun video, defendant was arrested on firearm charges on June 27, 2013. N.T.

4/29/15 at 66, 76. When questioned by police concerning the video, defendant admitted that he

was the person in the Facebook video and that he possessed the firearm. N.T. 4/29/15 at 83.

Subsequent investigation showed that the video was created on January 13, 2013, one week prior

to Greer's murder. N.T. 4/29/15 at 188-190. When defendant was questioned by police

concerning Greer's murder, defendant stated that "if he told [police] what happened, that his life

would be over and that he would no longer see his grandfather." N.T. 4/29/15 at 83, 86. He also

stated that he was in the area at the time of the murder with a female, and that he was purchasing

narcotics from Greer. N.T. 4/29/15 at 98.

6 II. DISCUSSION

A. Sufficiency of the Evidence

Defendant claims that the Commonwealth's evidence was legally insufficient to support

the verdicts for robbery and second-degree murder "as there was no eyewitness testimony and no

evidence connecting [defendant] to the process whereby Decedent's pant pockets were turned

out." Statement of Errors at ,r 2. This claim is without merit.

In considering a challenge to the sufficiency of the evidence, the Court must decide

whether the evidence at trial, viewed in the light most favorable to the Commonwealth, together

with all reasonable inferences therefrom, could enable the factfinder to find every element of the

crimes charged beyond a reasonable doubt. Commonwealth v. Walsh, 36 A.3d 613, 618 (Pa.

Super. 2012) (quoting Commonwealth v. Brumbraugh, 932 A.2d 108, 109 (Pa. Super. 2007)). In

making this assessment, a reviewing court may not weigh the evidence and substitute its own

judgment for that of the factfinder, who is free to believe all, part, or none of the evidence.

Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011). "[A] mere conflict in the testimony

of the witnesses does not render the evidence insufficient..." Commonwealth v. Montini, 712

A.2d 761, 767 (Pa. Super. 1998). The Commonwealth may satisfy its burden of proof entirely

by circumstantial evidence. Ramtahal, 33 A.3d at 607. "If the record contains support for the

verdict, it may not be disturbed." Commonwealth v. Adams, 882 A.2d 496, 499 (Pa. Super.

2005) (quoting Commonwealth v. Burns, 765 A.2d 1144, 1148 (Pa. Super. 2000), appeal denied,

782 A.2d 542 (Pa. 2001)).

1. Robbery

"A person is guilty of robbery if, in the course of conunitting a theft, he [inter alia]: ...

inflicts serious bodily injury upon another." 18 Pa.C.S. § 370l(a)(l)(i). "An act shall be deemed

7 'in the course of committing a theft' if it occurs in an attempt to commit theft or in flight after the

attempt or commission." 18 Pa.C.S. § 3701(a)(2). The evidence in this matter clearly

established that defendant committed a robbery on January 20, 2013.

Jamillah Reed testified concerning the events leading up to Greer's murder. Reed stated

that she met defendant on the evening of January 19, 2013, and began using drugs in defendant's

grandfather's home on Fairmount Avenue. N.T. 4/28/15 at 75-77. Reed testified that she

contacted Greer twice while she and defendant were at the Fairmount home in order to purchase

drugs, and that Greer came to the house in order to deliver the drugs. N.T. 4/28/15 at 77-81, 84.

Reed testified that, during the second purchase, defendant accompanied her outside the home and

witnessed the exchange. N.T. 4/28/15 at 85. Reed also testified that Greer asked her to provide

his phone number to defendant during this second drug purchase. N.T. 4/28/15 at 86.

Reed further testified that she made a third call to Greer, at defendant's request, later in

the evening of January 20, 2013, while she and defendant were in the Carlyle Hotel a few blocks

from the Fairmount home. N.T. 4/28/15 at 89. Reed testified that defendant stated that he would

purchase three hundred dollars worth of drugs, but that he needed to return to the Fairmount

home in order to retrieve the money needed for the purchase. N. T. 4/28/15 at 91-93. According

to Reed, defendant called her approximately fifteen minutes after defendant had left the hotel and

asked her to call Greer and have him meet defendant at the Fairmount home in order to conduct

the drug transaction. N.T. 4/28/15 at 95. As defendant had witnessed the second drug

transaction earlier that day, defendant knew that Greer drove a red minivan. Reed testified that

she called Greer to change the drug transaction location and that Greer agreed to meet defendant.

N.T. 4/28/15 at 95-96.

8 Reed testified that defendant eventually returned to the hotel room, "look[ing]

deranged .. .like somebody threw a bucket of water on him. He didn't look normal. He didn't

look like the way he looked when he left." N.T. 4/28/15 at 97-98. Reed testified that defendant

had claimed that Greer never arrived for the drug deal. N.T. 4/28/15 at 96-98. Reed also testified

that she was not able to get in touch with Greer since his last text to her. N.T. 4/28/15 at 96-98.

Reed further testified that defendant lay on the bed for approximately five minutes after returning

to the hotel before jumping up from the bed and declaring that he heard a gunshot. N.T. 4/28/15

at 98-99. Reed testified that, soon thereafter, defendant offered to buy Reed a pack of cigarettes,

left the hotel, and did not return. N.T. 4/28/15 at 99. Reed then testified that she called

defendant to see where he had gone and, when he stated he was back at the Fairmount residence,

she left the hotel sometime around 7:00 p.m. N.T. 4/28/15 at 99-100. Reed testified that she saw

police activity in the area around a van near the hotel after she left. N.T. 4/28/15 at 100.

Police investigation at the crime scene established compelling evidence of a robbery.

Greer's body was recovered inside his vehicle on a desolate street in the area of Carlisle Street

and Ogden Street, approximately a block away from the Carlyle Hotel where defendant and Reed

were staying. N.T. 4/27 /15 at 88-89. Greer had been shot once in the face, at close range, with a

.45 caliber Glock style semiautomatic pistol. N.T. 4/27/15 at 89; 4/28/15 at 202-206, 210;

4/30/15 at 20-21. Police recovered the .45 caliber Hornady fired cartridge case inside the vehicle

and a bullet projectile outside of the vehicle, which was consistent with a .45 caliber Hornady

Critical Defense FTX cartridge. N.T. 4/28/15 at 13-14; 4/30/15 at 20-21, 26. While the initial

responding officer, Jeffrey Holden, testified that the car doors were closed when he approached

Greer, and that he never opened the car doors prior to the scene being documented by

investigators, blood was found outside the vehicle, directly under where the driver side door was

9 positioned when opened, indicating that someone had opened the door before police arrived at

the scene. N.T. 4/27/15 at 100; 4/28/15 at 15-16, 18, 31-32. In addition, Greer's front pants

pockets had been turned inside out. N.T. 4/28/15 at 20, 34. Subsequent DNA analysis of these

pockets could not exclude defendant as a contributor to the DNA found within them. N.T.

4/29/15 at 159-160, 163-164. Police also discovered gunshot residue in the lining of these

pockets, indicating that whoever had shot Greer had also put their hands into Greer's front

pockets. N.T. 4/29/15 at 171.

Reed also testified concerning events after the murder. She stated that she was contacted

by police on April 2, 2013, and that she provided police with defendant's name and phone

numbers. N.T. 4/28/15 at 121-122, 128-129. Reed also testified that defendant contacted her

several times after she began talking with police, asking to talk to her about Greer. N.T. 4/28/15

at 130-131, 133-136. Reed further testified that she saw a video of defendant posted on his

Facebook account where defendant was in possession of a firearm. N.T. 4/28/15 at 137-142.

Subsequent analysis of this video showed that the video was filmed with defendant's cell phone

on January 13, 2013, one week before Greer's murder. N.T. 4/29/15 at 188-189. In the video,

defendant can be seen handling a .45 caliber Glock semi-automatic pistol and .45 caliber

Hornady Critical defense FTX ammunition. N.T. 4/30/15 at 33, 36-40.

Detective John McNamee testified that he obtained warrants for the cell phone numbers

provided by Reed and that both numbers were listed under defendant's name. N.T. 4/29/15 at

41-44. These phone records indicated that one of these cell phones was associated with the

landline telephone number at the Fairmount home, which defendant provided as his primary

address. N.T. 4/29/15 at 43-44. McNamee testified that defendant contacted Greer multiple

times in the afternoon and evening of January 20, 2013. N.T. 4/29/15 at 51-53. McNamee also

10 testified that someone called Greer from the landline at the Fairmount residence at 4:37 p.m. and

again at 5:18 p.m. on January 20. The 5:18 p.m. phone call was the last phone call answered by

Greer prior to being found dead in his car. N.T. 4/29/15 at 55.

Detective McNamee testified that defendant was arrested on firearm possession charges

stemming from the Facebook video and brought into police headquarters for questioning. N.T.

4/29/15 at 76. McNamee testified that defendant admitted to police that he was the person in the

Facebook video and that he possessed the firearm. N.T. 4/29/15 at 83. McNamee further

testified that, when defendant was questioned about Greer's murder, defendant stated that "if he

told [police] what happened, that his life would be over and that he would no longer see his

grandfather." N.T. 4/29/15 at 83, 86. McNamee also testified that defendant stated that he was

in the area at the time of the murder, with Reed, and that he was purchasing narcotics from

Greer. N.T. 4/29/15 at 98. McNamee also testified that defendant contacted his cousin via

Facebook prior to his arrest on the firearm charges in order to determine if he had any

outstanding warrants because "homicide keep running around asking questions about me." N.T.

4/29/15 at 69- 71.

Accordingly, there was compelling evidence for a fact-finder to conclude that defendant

robbed Greer in the late afternoon of January 20, 2013. Reed's testimony established that Greer

was killed during the time that he was scheduled to deliver $300 worth of cocaine to defendant.

While the previous two drug exchanges were made from Greer to Reed, this time defendant

arranged to have Greer deliver the drugs directly to defendant at defendant's Fairmount home

while Reed remained at the Carlyle Hotel. Telephone records established that a call was made

from that Fairmount residence to Greer shortly before Greer was found dead in his vehicle in an

abandoned section of the neighborhood, providing strong circumstantial evidence that defendant

11 called Greer to change the location of the transaction. After the deal was supposed to have been

done, defendant returned to Reed at the hotel, sweating and "looking deranged," claiming Greer

never showed up. Defendant then bizarrely claimed to hear a gunshot, left the hotel for

cigarettes, and never returned. All of this showed that defendant had motive and opportunity to

rob Greer and behaved in a manner demonstrating consciousness of guilt.

Moreover, the remaining evidence convincingly established both the commission of a

robbery and defendant's identity as the perpetrator. The medical and ballistics evidence proved

that Greer was shot at close range by a .45 caliber Glock semi-automatic with distinctive

Hornady Critical Defense FTX ammunition. The Facebook video showed that defendant had

been in possession of the same type of ammunition, and a handgun that could fire it, only one

week prior to the shooting. Greer's pockets were turned inside out, with gunpowder residue on

the pocket lining after coming into contact with the shooter's hands as he went through the

pockets after shooting Greer. Defendant could not be excluded as a contributor to the DNA

evidence found in the pockets. Blood was located outside the vehicle, directly under where the

driver side door was located when opened, though police never opened the car door prior to the

arrival of crime scene investigators. This evidence was sufficient to establish that defendant

opened the driver side door after shooting Greer and went through Greer's pockets in an attempt

to steal drugs or money. Finally, when contacted by police, defendant stated that if he told police

about what happened to Greer, "his life would be over and that he would no longer see his

grandfather." N.T. 4/29/15 at 83. This evidence was clearly sufficient to allow a reasonable

factfinder to conclude that defendant was guilty of robbery.

12 2. Second-Degree Murder

"'A criminal homicide constitutes murder of the second degree when it is committed

while defendant was engaged as a principal or an accomplice in the perpetration of a felony.'"

Commonwealth v. Knox, 50 A.3d 732, 739 (Pa. Super. 2012), appeal denied, 69 A.3d 601 (Pa.

2013) (citing 18 Pa.C.S. § 2502(b)). "The 'perpetration of a felony' is defined as: 'The act of the

defendant in engaging in or being an accomplice in the commission of, or an attempt to commit,

or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse

by force or threat of force, arson, burglary or kidnapping.:" Id. The malice required for second-

degree murder may be inferred by the factfinder from the underlying felony. See Commonwealth

v. Lambert, 795 A.2d 1010, 1023 (Pa. Super.), appeal denied, 805 A.2d 521 (Pa. 2002).

As described above, the evidence clearly established that defendant shot Greer once in

the face during the commission of a robbery. Dr. Bruce Wainer testified that Greer died as a

result of a single perforating gunshot wound to the head, which perforated Greer's carotid artery.

N.T. 4/28/15 at 202-203, 211-212. Accordingly, the evidence was plainly sufficient to support

the factfinder's verdict of second-degree murder.

B. Weight of the Evidence

Defendant next contends that the jury's verdict of guilt is against the weight of the

evidence because there was no eyewitness testimony or forensic evidence connecting defendant

to the murder and because witness Jamillah Reed was the likely perpetrator. Statement of Errors

at ~ 2. This claim is without merit.

It is well-established that a new trial may only be granted by the trial court where the

verdict was so contrary to the weight of the evidence as to "shock one's sense of justice."

Commonwealth v. Rosse/ti, 863 A.2d 1185, 1191 (Pa. Super. 2004), appeal denied, 878 A.2d 864

13 (Pa. 2005) (quoting Commonwealth v. Hunter, 554 A.2d 550, 555) (Pa. Super. 1989)).

Moreover, credibility determinations are solely within the province of the fact-finder, and an

appellate court may not reweigh the evidence and "substitute its judgment for that of the finder

of fact." Commonwealth v. Taylor, 63 A.3d 327 (Pa. Super. 2013) (quoting Commonwealth v.

Shaffer, 40 A.3d 1250, 1253 (Pa. Super. 2012)). In considering a claim that the trial court erred

in refusing to find that a verdict was against the weight of the evidence, "appellate review is

limited to whether the trial court palpably abused its discretion in ruling on the weight claim."

Taylor, 63 A.3d at 327 (quoting Shaffer, 40 A.3d at 1253).

The evidence outlined above plainly established that defendant committed the crimes of

which he was convicted. While defendant attempts to shift the blame of Greer's murder onto

Reed, there is no evidence to suggest that Reed perpetrated this crime. Because the evidence

fully supported the verdict, the Court did not abuse its discretion in denying defendant's post-

sentence motion.

III. CONCLUSION

For all of the foregoing reasons, the Court's judgment of sentence should be affirmed.

BY THE COURT:

GLENN B. BRONSON, J.

14 Commonwealth v. Michael Whitmire CP-51-CR-0001673-2014 Type of Order: 1925(a) Opinion

PROOF OF SERVICE

I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and in the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P.114:

Defense Counsel/Party: Stephen O'Hanlon, Esquire 1500 JFK Blvd. Suite 1850 Philadelphia, PA 19102

Type of Service: () Personal (X) First Class Mail () Other, please specify:

District Attorney(s): Hugh J. Burns, Jr., Esquire Chief, Appeals Unit Philadelphia District Attorney's Office Three South Penn Square Philadelphia, PA 19107

Type of Service () Personal (X) First Class Mail ( ) Other, please specify:

Additional Counsel/Party: Joseph D. Seletyn, Esquire Prothonotary Office of the Prothonotary - Superior Court 530 Walnut Street, Suite 315 Philadelphia, PA 19 l 06

Type of Service: ( ) Personal (X) First Class Mail ( ) Other, please specify:

Dated: November 30, 2015