J. S20024/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

THOMAS COFFEE, : No. 54 EDA 2016

:

 Appellant :

Appeal from the Judgment of Sentence, August 4, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0010364-2013

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

THOMAS COFFEE, : No. 56 EDA 2016

:

 Appellant :

Appeal from the Judgment of Sentence, August 4, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0010393-2013

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

THOMAS COFFEE, : No. 57 EDA 2016

:

 Appellant :

Appeal from the Judgment of Sentence, August 4, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0010362-2013
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COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

THOMAS COFFEE, : No. 58 EDA 2016

:

 Appellant :

Appeal from the Judgment of Sentence, August 4, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0010379-2013

BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2017

Thomas Coffee appeals from the August 4, 2015 judgment of sentence 

of life imprisonment plus a consecutive aggregate term of 50 to 100 years’ 

imprisonment imposed after a jury found him guilty of first-degree murder, 

four counts each of robbery and possessing an instrument of crime (“PIC”), 

three counts of carrying a firearm without a license, and two counts each of 

criminal conspiracy and robbery of a motor vehicle.1 After careful review, 

we affirm the judgment of sentence.

The trial court summarized the factual background of this case as 

follows:

On June 7, 2013, Jose Ocana searched 

Craigslist.com intending to trade his dirt bike for a 

street motorcycle. Finding a motorcycle that he was 

interested in buying, Ocana contacted the seller by 

 

1 18 Pa.C.S.A. §§ 2502(a), 3701, 907, 6106, 903, and 3702, respectively.
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phone in order to set up a trade. Based on the voice 

of the individual he contacted, Ocana believed the 

seller to be a Hispanic male. After talking with the 

seller multiple times on the phone, Ocana and the 

seller agreed to make the trade at Ocana’s home on 

the 3400 block of Emerald Street in Philadelphia. 

That evening, Ocana brought his dirt bike in front of 

his home and, seeing a Hispanic male walking down 

the street, Ocana called the seller again to confirm 

that the man he saw was the seller. The Hispanic 

male on the street answered the phone. Ocana later 

identified this Hispanic male as Joshua Gutierrez. 

Ocana also saw two black males, one of whom was 

[appellant], walking behind Gutierrez.

Ocana and Gutierrez met on the street, and 

Ocana turned to retrieve an umbrella from the trunk 

of his car. As Ocana retrieved the umbrella, the 

unidentified black male pulled a gun and pressed it 

against Ocana’s back. [Appellant] then went through 

Ocana’s pockets, taking Ocana’s keys, wallet, and 

cell phone. As Gutierrez drove off with Ocana’s dirt 

bike, the unknown black male ordered Ocana to the 

ground, to turn face up, and then placed the gun 

against Ocana’s forehead. [Appellant] then got into 

the driver’s seat of Ocana’s car, while the other black 

male got into the passenger seat. [Appellant] and 

the other black male then fled the scene in Ocana’s 

vehicle. Ocana went to a neighbor’s home, where he

called police.

Ocana informed police of the phone number he 

had used to contact Gutierrez. Detectives 

subsequently investigated the Craigslist ad to which 

Ocana responded and determined that the ad was 

connected to the email address 

joshuagutierrez772@yahoo.com and that the phone 

number provided in the ad belonged to Gutierrez.

On June 8, 2013, Ben Booker responded to a 

Craigslist ad, seeking to purchase a motorcycle. This 

ad was the same ad to which Ocana had responded. 

Booker offered to trade three legally purchased 

firearms for the motorcycle. Booker negotiated the 
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sale during a series of phone calls that he had placed 

to the phone number listed in the ad. The seller 

suggested that they meet at a location on the 

4600 block of Stenton Avenue to conduct the trade. 

Booker drove to the meeting in his Lexus RS 300 

accompanied by his cousin, where he was flagged 

down by Gutierrez. 

While Booker and Gutierrez were talking, 

[appellant] approached them. [Appellant] then 

pulled two handguns and pointed one firearm each at 

Booker and his cousin. [Appellant] ordered Booker 

and his cousin to the ground while four other 

individuals approached. [Appellant] gave one 

firearm to Gutierrez, and the two continued to point 

the firearms at Booker and his cousin while the other 

individuals went through Booker’s pockets. 

[Appellant] had his gun against Booker’s head. 

[Appellant] and his associates took Booker’s wallet, 

wedding ring, and personal firearm, and then got 

into Booker’s Lexus and fled, along with the 

additional firearms and ammunition that were inside 

the car. Among the weapons stolen in Booker’s car 

was a .40 caliber handgun. Booker contacted police 

and provided the investigating detective with a fired 

cartridge casing that had come from the .40 caliber 

handgun stolen by [appellant].

On June 10, 2013, two days after being 

robbed, Booker saw [appellant] on Church Street, 

but [appellant] fled in a van before police could 

arrive on the scene. Booker later identified 

[appellant] in a photo array on June 24, 2013.

On June 17, 2013, at approximately 9:30 a.m., 

Malik Bivings was walking down the 7000 block of 

Horrocks Street. There he encountered [appellant], 

who had a firearm in hand and ordered Bivings into 

an alley. [Appellant] directed Bivings to empty his 

pockets. [Appellant] took Bivings’ iPhone, watch, 

and wallet before leaving the area. Bivings 

contacted the police and reported the robbery on 

June 21, 2013. Bivings identified [appellant] in a 

photo array on July 2, 2013.
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On June 21, 2013, Daniel Cook, a resident of 

New Jersey, headed to a meeting to purchase a 

Yamaha Banshee ATV vehicle that was offered for 

sale in a Craigslist ad. Prior to that day, Cook had 

agreed to pay $950 and a PlayStation 3 gaming 

console in exchange for the ATV. [Appellant] had 

posted this ad using his own email address and his 

cell phone number. Cook and [appellant] had 

contacted each other by phone call and text 

messaging to arrange the deal. Cook arrived at the 

location for the trade sometime around 11 p.m. with 

his fiancée, Jessica Davis, and three friends who 

would help transport the ATV. Upon arriving at the 

location for the deal, Cook’s fiancée parked the car 

and Cook exited without the other passengers, 

meeting with a black male who was sitting on the 

steps of 6704 Hollis Street wearing a white towel on 

his head. Cook, in possession of the PlayStation 3, 

and the black male walked around the corner of 

Walnut Street. Shortly after they went around the 

corner, Cook’s fiancée and friends heard three 

gunshots. Cook’s friends went around the corner to 

locate Cook and found him lying next to the curb a 

few feet away from the corner where he and the 

black male had gone. Cook’s pockets had been 

turned inside out. Cook’s fiancée then called the 

police. 

Police arrived on the scene of the shooting and 

found Cook on the street, unresponsive with multiple 

gunshot wounds. Medical personnel arrived at the 

scene and declared Cook dead at 11:23 p.m. Cook 

had been shot once in the back and once in his lower 

right leg. Three .40 caliber fired cartridge casings 

were recovered at the scene. Cook’s fiancé gave 

police the cell phone number that Cook had called to 

contact the seller. The police obtained the 

subscriber information for that number, which listed 

as the subscriber’s address the address of 

[appellant] on Lukens Avenue in Willow Grove, 

Pennsylvania.
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Sometime after midnight on June 22, 2013, 

[appellant] returned to his home in Willow Grove and 

talked to his girlfriend, telling her that his phone, 

from which he had just called her, had been stolen 

and that he needed help cancelling the phone line. 

Also shortly after midnight, [appellant] deleted the 

Craigslist ad to which Cook had responded. 

Working in association with the Abington Police 

Department, Philadelphia Police arrived at 

[appellant’s] home later that morning, while 

[appellant] was in the house. While his home was 

surrounded by police, [appellant] again asked his 

girlfriend to lie about his phone being stolen. After 

about 15 minutes, [appellant] exited the home and 

was taken into custody.

[Appellant’s] cell phone records indicated that 

around the time of the murder, [appellant’s] phone 

was located in the coverage area of the cell tower 

that included the location on Hollis Street where the 

murder occurred. These records further indicated 

that [appellant’s] cell phone traveled north, away 

from the scene of Cook’s murder, in the minutes 

immediately following the murder, ultimately 

stopping in an area that included [appellant’s] home 

address. 

While searching [appellant’s] home, police 

recovered multiple cell phones, including the cell 

phone that had been stolen from Bivings on June 17, 

2013. Police also located [appellant’s] cell phone, 

recovered without a SIM card, as well as a bent 

SIM card that had been removed from the phone. 

On that phone police found pictures of the ATV from 

the Craigslist ad to which Cook had responded, with 

[appellant] astride it. Police also recovered a 

.40 caliber bullet that matched the type of bullets 

stolen from Booker and used to kill Cook. 

Subsequent analysis revealed that Cook was shot 

with the .40 caliber firearm stolen from Booker on 

June 8, 2013. 
J. S20024/17

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Trial court opinion, 3/29/16 at 2-7 (citations to notes of testimony and 

footnotes omitted).

Appellant was charged with a litany of crimes in connection with these 

incidents at four separate docket numbers. These cases were ultimately 

consolidated, and appellant proceeded to a jury trial on July 27, 2015. On 

August 4, 2015, appellant was found guilty of all charges except one count 

of carrying a firearm without a license.2 That same day, the trial court 

sentenced appellant to life imprisonment for first-degree murder plus a 

consecutive aggregate term of 50 to 100 years’ imprisonment for the 

remaining counts. On August 7, 2015, appellant filed post-sentence 

motions, which were denied by the trial court on November 24, 2015. This 

timely appeal followed on December 22, 2015. On December 23, 2015, the 

trial court entered an order directing appellant to file a Pa.R.A.P. 1925(b) 

statement within 21 days. Appellant filed a timely Rule 1925(b) statement 

on January 13, 2016. Thereafter, on March 29, 2016, the trial court filed a 

comprehensive, 15-page Rule 1925(a) opinion.

Appellant raises the following issues for our review:

 

2 Specifically, at CP-51-CR-0010379-2013, appellant was found guilty of one 

count each of criminal conspiracy, robbery, robbery of a motor vehicle, and 

PIC. At CP-51-CR-0010364-2013, appellant was found guilty of one count 

each of criminal conspiracy, robbery, robbery of a motor vehicle, PIC, and 

carrying a firearm without a license. At CP-51-CR-0010362-2013, appellant 

was found guilty of robbery, carrying a firearm without a license, and PIC. 

Lastly, at CP-51-CR-0010393-2013, appellant was found guilty of 

first-degree murder, robbery, carrying a firearm without a license, and PIC.
J. S20024/17

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

on the charges of Murder, Criminal Conspiracy, 

Robbery and related offenses, where the 

evidence is insufficient to establish that 

[appellant] was a principal, conspirator or an 

accomplice to the crimes in question; with 

regard to Murder in the First Degree 

specifically, the evidence is insufficient, in the 

alternative, where the Commonwealth could 

not prove that [appellant] acted with specific 

intent to kill nor with premeditation?

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

charges of Murder in the First Degree together 

with Robbery, Criminal Conspiracy and all 

related offenses where the verdict is not 

supported by the greater weight of the 

evidence?

Appellant’s brief at 3.

Preliminarily, we note that in the “Argument” section of his brief, 

appellant only challenges whether there was sufficient evidence to sustain 

his conviction for the first-degree murder of Daniel Cook. (See appellant’s 

brief at 10-15.) Accordingly, we will limit our sufficiency discussion to that 

specific conviction. Specifically, appellant argues the evidence was 

insufficient to support his convictions for first-degree murder because the 

Commonwealth failed to prove he had a specific intent to kill Cook. (Id. at 

10-11.) We disagree.

In reviewing the sufficiency of the evidence, we must 

determine whether the evidence admitted at trial 

and all reasonable inferences drawn therefrom, 

viewed in the light most favorable to the 

Commonwealth as verdict winner, is sufficient to 

prove every element of the offense beyond a 

reasonable doubt. As an appellate court, we may 
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not re-weigh the evidence and substitute our 

judgment for that of the fact-finder. Any question of 

doubt is for the fact-finder unless the evidence is so 

weak and inconclusive that as a matter of law no 

probability of fact can be drawn from the combined 

circumstances. 

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal 

denied, 4 A.3d 1054 (Pa. 2010) (citations omitted).

It is the element of a willful, premeditated, and deliberate intent to kill 

that distinguishes first-degree murder from all other types of criminal 

homicide. “To convict a defendant of first-degree murder, the jury must find 

that (1) a human being was unlawfully killed; (2) the defendant is 

responsible for the killing; and (3) the defendant acted with a specific intent 

to kill.” Commonwealth v. Montalvo, 956 A.2d 926, 932 (Pa. 2008), 

cert. denied, 556 U.S. 1186 (2009) (citation omitted); 18 Pa.C.S.A. 

§ 2502(a).

Viewing the evidence in the light most favorable to the 

Commonwealth, the verdict winner, the record supports the trial court’s 

conclusion that there was overwhelming evidence for the jury to find that 

appellant shot and killed Cook on the evening of June 21, 2013. As the trial 

court summarized in its opinion, 

Commonwealth witness Darlene White, who 

knew [appellant], testified that she saw a black male 

sitting in front of [appellant’s] old home, wearing a

towel over his head, whose build and frame were 

similar to that of [appellant]. [(Notes of testimony, 

7/28/15 at 203-209.)] That the person whom White 

saw was the killer was established by both Daniel 
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Fortunato, Cook’s friend, and Jessica Davis, Cook’s 

fiancé, who each testified that at the time of the 

shooting, Cook was meeting with a black male, 

wearing a towel on his head, who was sitting in front 

of [appellant’s] old home. [(Id. at 185; notes of 

testimony, 7/29/15 at 89-90.]

While none of the eyewitnesses could positively 

identify [appellant] as the shooter, the additional 

physical and forensic evidence establishing 

[appellant’s] guilt was overwhelming. First, the 

Craigslist ad to which Cook responded listed for the 

seller’s contact information [appellant’s] personal 

email address, thomascoffee6@gmail.com, and 

[appellant’s] phone number. [(Notes of testimony, 

7/30/15 at 141-143, 146.)] Second, Cook’s cell 

phone showed that it had been used to communicate 

repeatedly with [appellant’s] cell phone during the 

time leading up to the murder. [Id. at 75-80.)] 

Third, a forensic examination of [appellant’s] cell 

phone revealed that [appellant’s] phone was in the 

immediate area of Cook’s murder at the time of the 

gunshots, and that the phone then rapidly traveled 

north immediately following the murder, ultimately 

stopping at the area of [appellant’s] home in Willow 

Grove. [(Notes of testimony, 8/3/15 at 31, 33-36, 

38-43.)] Fourth, a picture was found on 

[appellant’s] phone, showing [appellant] astride the 

ATV that Cook was attempting to purchase. [(Notes 

of testimony, 7/30/15 at 103-104.)] Fifth, ballistics 

evidence revealed that Cook was shot and killed with 

one of the firearms that [appellant] stole from 

[Ben] Booker thirteen days before the shooting. 

[(Notes of testimony, 7/29/15 at 117-118, 162.)] 

Finally, following [appellant’s] arrest, police found in 

[appellant’s] home a round of Federal brand 

.40 caliber ammunition, which matched the type of 

ammunition that was both stolen from Booker and 

used against Cook. [(Id. at 165-166; notes of 

testimony, 7/30/15 at 88.)]

There was also compelling evidence 

establishing [appellant’s] consciousness of guilt. 

Immediately upon his return home after the 
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shooting, [appellant] falsely claimed to his girlfriend, 

Alexis Green, that his cell phone, from which he had 

just called her, had been stolen earlier that day while 

he was playing basketball. [(Notes of testimony, 

7/29/15 at 208-211; notes of testimony, 7/30/15 at 

50.)] [Appellant] further requested help from his 

girlfriend in order to cancel the phone service. 

[(Id.)] Additionally, [appellant] deleted the 

Craigslist ad to which Cook had responded within an 

hour of the shooting. [(Notes of testimony, 7/30/15 

at 143-144).] The next morning, while police had 

surrounded [appellant’s] home, [appellant] asked his 

girlfriend to lie for him and tell police that his cell 

phone had been stolen. [(Notes of testimony, 

7/29/15 at 89, 95-97; notes of testimony, 7/30/15 

at 51-52.)] Police found additional evidence of 

[appellant’s] consciousness of guilt when they 

recovered [appellant’s] cell phone, without its 

SIM card, and then located the SIM card separately 

in a plastic bag. The SIM card had been bent in an 

apparent attempt to destroy it. [(Notes of 

testimony, 7/30/15 at 89, 95-97.)]

Trial court opinion, 3/29/16 at 11-12 (citation formatting corrected).

The record further reflects that Cook was shot multiple times, once in 

the leg and once in the back. (Notes of testimony, 7/29/15 at 190-193.) 

Commonwealth witness Dr. Edwin Lieberman, the Philadelphia medical 

examiner and expert in forensic pathology, testified that the gunshot to 

Cook’s back penetrated his heart and left lung, ultimately resulting in his 

death. (Id. at 193-195.) It is well settled that “[t]he firing of a bullet in the 

general area in which vital organs are located can in and of itself be 

sufficient to prove specific intent to kill beyond a reasonable doubt.” 

Commonwealth v. Manley, 985 A.2d 256, 272 (Pa.Super. 2009), appeal 

denied, 996 A.2d 491 (Pa. 2010) (citation omitted). Based on the 
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foregoing, we find that appellant possessed the requisite intent to kill Cook 

and that his claim that there was insufficient evidence to sustain his 

conviction for first-degree murder must fail.

We now turn to appellant’s claim that the verdict was against the 

weight of the evidence. (Appellant’s brief at 16.) Specifically, appellant 

argues the that the guilty verdict for the first-degree murder of Cook “was 

based on nothing more than speculation, conjecture and surmise” and that 

“[t]he greater weight of the evidence only would have established that there 

was a robbery set up and that the robbery went bad.” (Id. at 17.) We 

disagree.

“An allegation that the verdict is against the weight of the evidence is 

addressed to the discretion of the trial court.” Commonwealth v. Galvin, 

985 A.2d 783, 793 (Pa. 2009), cert. denied, 559 U.S. 1051 (2010) (citation 

omitted).

[W]here 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. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation 

omitted). 

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 
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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. 

This does not mean that the exercise of discretion by 

the trial court in granting or denying a motion for a 

new trial based on a challenge to the weight of the 

evidence is unfettered. In describing the limits of a 

trial court’s discretion, we have explained[,] [t]he 

term “discretion” imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate 

conclusion within the framework of the law, and is 

not exercised for the purpose of giving effect to the 

will of the judge. Discretion must be exercised on 

the foundation of reason, as opposed to prejudice, 

personal motivations, caprice or arbitrary actions. 

Discretion is abused where the course pursued 

represents not merely an error of judgment, but 

where the judgment is manifestly unreasonable or 

where the law is not applied or where the record 

shows that the action is a result of partiality, 

prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and 

emphasis omitted).

Upon review, we discern no abuse of discretion on the part of the trial 

court in rejecting appellant’s weight claim. (See trial court opinion, 3/29/16 

at 13.) “[T]he trier of fact while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to believe all, part or none 

of the evidence.” Commonwealth v. Andrulewicz, 911 A.2d 162, 165 

(Pa.Super. 2006) (citation omitted), appeal denied, 926 A.2d 972 (Pa. 

2007). Here, the jury evidently found the 18 witnesses presented by the 
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Commonwealth at trial credible, and elected not to believe appellant’s 

version of the events. We are precluded from reweighing the evidence and 

substituting our judgment for that of the fact-finder. Clay, 64 A.3d at 1055. 

Accordingly, appellant’s weight claim must fail.

Appellant further contends the trial court abused its discretion in 

precluding him from impeaching the detective initially assigned to 

investigate the homicide of Cook, Detective Ronald Dove, with unrelated 

allegations of misconduct.3 (Appellant’s brief at 17-21.) The record reflects 

that appellant failed to include this specific claim in his “Statement of 

Question[s] Involved.” (See id. at 3.) Accordingly, we deem it waived. 

See Commonwealth v. Garland, 63 A.3d 339, 342 (Pa.Super. 2013) 

(concluding that an issue not explicitly raised in appellant’s statement of the 

questions involved is waived); Pa.R.A.P. 2116(a) (“No question will be 

considered unless it is stated in the statement of questions involved or is 

fairly suggested thereby[]”).

In any event, even if appellant had not waived this claim, he would not 

be entitled to relief. As recognized by the trial court, Detective Dove 

provided no evidence of appellant’s guilt, and his testimony would not have 

been helpful to either party. Specifically, the trial court reasoned as follows: 

 

3 At the time of appellant’s trial, Detective Dove had been terminated from 

the Philadelphia police force and was facing charges for allegedly helping his 

girlfriend flee the city after she murdered her ex-boyfriend. (See trial court 

opinion, 3/29/16 at 14; appellant’s brief at 7-8, 17-21.)
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[I]t was clear that Dove, who was not called as a 

Commonwealth witness, had nothing to offer about 

the case that was not cumulative of the testimony of 

other witnesses, and did not state anything that was 

helpful to the defense. As a result, it was apparent 

to the [trial c]ourt that [appellant] wished to call 

Dove as a witness for the sole purpose of offering 

evidence about the charges pending against him in 

order to unfairly prejudice the jurors against the 

Commonwealth through the allegations regarding 

Dove’s unrelated conduct.

Trial court opinion, 3/29/16 at 14-15 (citation to notes of testimony 

omitted).

Moreover, there is no indication that Detective Dove acted improperly 

in investigating appellant’s case, and the only conceivable purpose in 

presenting Detective Dove’s alleged misconduct in an unrelated matter 

would be to impeach his credibility. As discussed, given the overwhelming 

evidence in this case, appellant cannot possibly show that the proffered 

“evidence” of Detective Dove’s alleged misconduct would have led to a 

different result. As such, his claim would fail.

Based on the foregoing, we find no abuse of the trial court’s discretion 

and affirm appellant’s August 4, 2015 judgment of sentence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/16/2017