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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DERRICK THOMPSON, : No. 151 EDA 2013

:

 Appellant :

Appeal from the Judgment of Sentence, October 26, 2012,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0004275-2011

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 31, 2017

Derrick Thompson appeals the judgment of sentence in which the 

Court of Common Pleas of Philadelphia County sentenced him to serve a 

term of life in prison for first-degree murder.1 After careful review, we 

affirm.

In September 2003, Craig Butler (“Butler”) was standing outside of a 

bar on York Street in the City of Philadelphia and overheard appellant tell 

Terrance Berry (“the victim”), “I don’t want you hustling around here 

no [sic] more.” (Notes of testimony, 10/22/12 at 91.) Butler explained that 

the term “hustling” meant “selling drugs.” (Id.)

 

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 2502(a).
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On September 20, 2003, Butler was walking on Arizona Street when 

he saw the victim standing outside a Ford Thunderbird with his hands resting 

on the hood. Appellant was in the car. Butler then heard a “boom.” Butler 

saw the victim fall back and saw appellant exit the vehicle. (Id. at 92-94.) 

Butler saw a portion of a double barrel shotgun hanging outside the driver’s 

side window of the car. Butler observed appellant exit the vehicle and get 

on a bicycle. (Id. at 95.) Butler went to appellant’s residence and arrived 

there approximately 15 minutes after the shooting. Butler overheard 

appellant tell Kiomi Dell (“Dell”), the mother of appellant’s child, “to go 

head [sic] and get the gun from the car, take it in the house.” (Id. at 104.)

The City of Philadelphia Police Department investigated the scene of 

the shooting. The victim was pronounced dead at 8:35 p.m. on 

September 20, 2003. (Notes of testimony, 10/18/12 at 63.) The police 

recovered two live shotgun shells from the left side of the driver’s seat of the 

Ford Thunderbird. (Id. at 142.) Officer Robert Flade of the Crime Scene 

Unit observed wadding from the shotgun in the victim’s neck. (Id. at 144.) 

The police recovered appellant’s fingerprints from the Ford Thunderbird. 

(Notes of testimony, 10/22/12 at 185.)

Sam Gulino, M.D. (“Dr. Gulino”), chief medical examiner for the City of 

Philadelphia, testified that the victim suffered a shotgun wound to the neck 

at close range which damaged the structures in the neck, including the 

voice box, larynx, blood vessels and nerves in the neck, the spine in the 
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neck, and severed his spinal cord. (Id. at 25-26.) Dr. Gulino testified that 

the victim died of a single shotgun wound to the neck, and the manner of 

death was homicide. (Id. at 41.)

Orlando O’Neal testified that in mid-October of 2003, appellant told 

him that a person known as “Lemon” had a shotgun in his possession and he 

wanted money or else he would turn it in to the police. (Id. at 55.) 

Appellant told O’Neal that the shotgun was passed off to a female friend, 

who passed it off to somebody else, and somehow Lemon got it. (Id. at 

56.) Appellant told O’Neal that Lemon wanted money every week and that 

he should have gotten rid of the shotgun right after the shooting. (Id. at 

67.)

Detective Kevin Judge of the Philadelphia Police Department testified 

that when he questioned appellant on November 11, 2003, regarding the 

shooting of the victim, appellant denied that he saw who shot the victim and 

claimed that Dell called the police to report the shooting. (Id. at 119-120.)

Appellant did not testify. Keith Harding, a long-time friend of 

appellant, testified that appellant told him that he shot the victim “on a [sic] 

accident.” (Notes of testimony, 10/23/12 at 77.)

On October 26, 2012, the jury found appellant guilty of first-degree 

murder. The trial court sentenced appellant to life in prison. Appellant was 

also convicted of possession of an instrument of crime2 but was sentenced to 

 

2 18 Pa.C.S.A. § 907(a).
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no further penalty. Appellant filed a post-sentence motion which the trial 

court denied on December 11, 2012.

Appellant appealed to this court. On September 12, 2016, appellant’s 

counsel, Norman Scott, Esq. (“Attorney Scott”), applied to withdraw as 

counsel and asked this court to remand to the trial court for the appointment 

of new counsel because Attorney Scott had been suspended from the 

practice of law for six months on August 17, 2016. On October 3, 2016, 

appellant moved to hold his appeal in abeyance pending the appointment of 

new counsel after Attorney Scott’s suspension. On December 5, 2016, this 

court granted Attorney Scott’s leave to withdraw and remanded for the 

appointment of new counsel for appellant. This court also granted 

appellant’s motion to hold his appeal in abeyance pending action by the trial 

court.

On January 30, 2017, the trial court appointed new counsel, 

David Scott Rudenstein, Esq. (“Attorney Rudenstein”). On April 13, 2017, 

Attorney Rudenstein petitioned to vacate the previous brief filed on behalf of 

appellant. On April 21, 2017, this court granted the motion to vacate. 

Subsequently, both parties filed briefs. 

Appellant raises the following issues for this court’s review:

1. Is [appellant] entitled to an Arrest of Judgment 

on the charge of Murder in the First Degree 

where the evidence was insufficient to 

establish that [appellant] was the perpetrator 

of the crime; and where, the evidence was 

insufficient to establish the crime of Murder in 
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the First Degree where the Commonwealth 

could not prove specific intent to kill or 

premeditation?

2. Is [appellant] entitled to a new trial on the 

charge of Murder in the First Degree where the 

greater weight of the evidence did not support 

the verdict?

Appellant’s brief at 3.

Regarding whether the Commonwealth presented sufficient evidence 

to sustain a conviction, appellant contends simply that the Commonwealth 

did not prove its case because Butler turns up everywhere. He was present 

when appellant allegedly threatened the victim, he was present when 

appellant allegedly shot the victim, and he was present at appellant’s home 

when there was talk of a gun. Appellant characterizes Butler’s testimony as 

“simply outrageously unbelievable.” (Appellant’s brief at 9.)

A claim challenging the sufficiency of the 

evidence is a question of law. Commonwealth v. 

Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 

(2000). In that case, our Supreme Court set forth 

the sufficiency of the evidence standard:

Evidence will be deemed sufficient to 

support the verdict when it establishes 

each material element of the crime 

charged and the commission thereof by 

the accused, beyond a reasonable doubt. 

Commonwealth v. Karkaria, 533 Pa. 

412, 625 A.2d 1167 (1993). Where the 

evidence offered to support the verdict is 

in contradiction to the physical facts, in 

contravention to human experience and 

the laws of nature, then the evidence is 

insufficient as a matter of law. 

Commonwealth v. Santana, 460 Pa. 
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482, 333 A.2d 876 (1975). When 

reviewing a sufficiency claim the court is 

required to view the evidence in the light 

most favorable to the verdict winner 

giving the prosecution the benefit of all 

reasonable inferences to be drawn from 

the evidence. Commonwealth v. 

Chambers, 528 Pa. 558, 599 A.2d 630 

(1991).

Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

We begin by reviewing the sufficiency of the evidence for appellant’s 

first-degree murder conviction. “To obtain a first-degree murder conviction, 

the Commonwealth must demonstrate that a human being was unlawfully 

killed, the defendant perpetrated the killing, and the defendant acted with 

malice and a specific intent to kill.” Commonwealth v. Montalvo, 986 

A.2d 84, 92 (Pa. 2009), citing Commonwealth v. Kennedy, 959 A.2d 916, 

920 (Pa. 2008); 18 Pa.C.S.A. § 2502(a). Specific intent to kill can be 

established through circumstantial evidence, such as the use of a deadly 

weapon on a vital part of the victim’s body. Commonwealth v. Rega, 933 

A.2d 997, 1009 (Pa. 2007).

Although appellant acknowledges that credibility is normally left to the 

jury, appellant argues that Butler’s testimony is incredible. He challenges 

Butler’s testimony as not having a “ring of truth to it.” 

The Pennsylvania Supreme Court has explained that there is an 

“exception to the general rule that the jury is the sole arbiter of the facts 
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where the testimony is so inherently unreliable that a verdict based upon it 

could amount to no more than surmise or conjecture.” Commonwealth v. 

Karkaria, 625 A.2d 1167, 1170 (Pa. 1993), quoting, Commonwealth v. 

Smith, 467 A.2d 1120, 1122 (Pa. 1983). 

Here, the physical evidence and appellant’s own statements supported 

Butler’s testimony such that this verdict was not based on mere surmise or 

conjecture.

Appellant also asserts that he is entitled to an arrest of judgment on 

the first degree murder conviction because the Commonwealth failed to 

make out the elements of the crime. Specifically, appellant argues that the 

Commonwealth failed to establish that appellant killed the victim in an 

intentional, deliberate, and premeditated manner.

Here, the evidence supports that the victim was killed and that 

appellant perpetrated the killing. With respect to whether appellant acted 

with malice and a specific intent to kill, the Commonwealth presented 

evidence that Butler heard appellant tell the victim to stop selling drugs in 

his area a few days before Butler saw appellant talking to the victim. Butler 

then heard a “bang,” saw the victim fall to the ground, saw appellant exit 

the vehicle, and saw a shotgun in the vehicle. (Notes of testimony, 

10/22/12 at 92-95.) Medical evidence and ballistics evidence established 

that the victim was shot at close range in the neck which severed the spinal 

cord which is certainly a vital part of the victim’s body. It could certainly be 
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inferred from Butler’s testimony that appellant intended to kill the victim. 

The Commonwealth presented sufficient evidence to establish that appellant 

committed first-degree murder.

Appellant next contends that the verdict was against the weight of the 

evidence.

[T]he weight of the evidence is exclusively for 

the finder of fact who is free to believe all, part, or 

none of the evidence and to determine the credibility 

of the witnesses. An appellate court cannot 

substitute its judgment for that of the finder of fact 

. . . thus, we may only reverse the lower court’s 

verdict if it is so contrary to the evidence as to shock 

one’s sense of justice. Moreover, where the trial 

court has ruled on the weight claim below, an 

appellate court’s role is not to consider the 

underlying question of whether the verdict is against 

the weight of the evidence, . . . rather, appellate 

review is limited to whether the trial court palpably 

abused its discretion in ruling on the weight claim.

Commonwealth v. Kim, 888 A.2d 847, 851 

(Pa.Super. 2005) (citations and quotations omitted). 

A motion for a new trial based on a challenge to the 

weight of the evidence concedes the evidence was 

sufficient to support the verdict. Commonwealth v. 

Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

Appellant argues that the greater weight of the evidence does not 

support the verdict. Specifically, appellant argues the evidence only 

supports that he had a gun and that the gun was discharged. While 

Keith Harding testified that appellant told him that the shooting was an 

accident, the jury did not credit this testimony and credited the testimony of 
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Butler. Once again, appellant attacks the credibility of Butler whom the jury 

obviously credited. Based on the evidence presented, the guilty verdict was 

not so contrary to the evidence to shock one’s sense of justice. The trial 

court did not abuse its discretion when it denied appellant’s post-trial 

motion. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/31/2017