Commonwealth v. Kuilan

1

COMMONWEALTH OF PENNSYLVANIA v. ANDY KUILAN Appellant

No. 914 EDA 2023

No. J-S38044-23

Superior Court of Pennsylvania

October 30, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered February 21, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006572-2021

Benjamin D. Kohler, Esq.

BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI J.^[*]

MEMORANDUM

PELLEGRINI, J.:

Andy Kuilan (Kuilan) appeals from the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County (trial court) after his bench trial convictions for third-degree murder, persons not to possess firearms, firearms not to be carried without a license, carrying firearms in Philadelphia, possession of an instrument of crime and recklessly endangering another person.^[1] On appeal, he challenges the sufficiency and the weight of the evidence. We affirm.

I.

The trial court summarized the evidence presented at Kuilan's trial as follows:

On December 23, 2020, at approximately 8:20 a.m., Kuilan shot and killed the decedent, Masai Moore, on the 3100 block of "F" Street in Philadelphia. The entire incident was captured on surveillance video from multiple cameras located around the area of the shooting as well as near Kuilan's residence at 5721 Tackawanna Street, where he lived with his paramour, Natasha Quinones. Various surveillance videos captured Kuilan leaving his residence, parking a block-and-a-half away from the scene, walking over to the decedent, pulling out a gun, and shooting at him eight times before returning to his vehicle and driving back to his residence. N.T. 12/5/2022 at 195-204, 215; Comm. Ex. 38.

At 7:45 a.m. that morning, Kuilan can be seen on surveillance video walking from the alleyway behind the 5700 block of Tackawanna Street and entering a black 2010 Buick LaCrosse parked on Cheltenham Avenue. After driving away, Kuilan is later seen on video at 8:13 a.m. parking the Buick LaCrosse on "E" Street near the corner of E. Allegheny Avenue about a block-and-a-half from where the shooting occurred. Kuilan exited the vehicle dressed in a black hooded sweatshirt, black sweatpants, and black shoes with a black ski mask over his face. He walked south on "E" Street and turned left onto Allegheny Avenue. N.T. 12/5/2022 at 224-231.

At approximately 8:20 a.m., Kuilan is seen on video turning onto "F" Street from Allegheny Avenue. Kuilan walked directly toward the decedent, who was standing on the corner of "F" and Wishart Streets, pulled a gun from his sweatshirt pocket, pointed it at the decedent, and fired eight shots. In doing so, Kuilan ignored three other people in that same area and deliberately targeted the decedent. After Kuilan fired the first few shots in quick succession, the decedent attempted to duck behind a car for cover then ran across "F" Street. Kuilan chased the decedent as he continued firing several more shots while the decedent ran toward Allegheny Avenue. After being shot twice, the decedent collapsed on Allegheny Avenue and subsequently died from the gunshot wound to his chest. N.T. 12/5/2022 at 20-22, 33-35, 195-201, 232; Comm. Ex. 2, 38.

With the gun still in his hand, Kuilan ran down Wishart Street toward "E" Street. When Kuilan was next captured on video turning onto "E" Street, he was no longer running, but walking toward the area where he parked his vehicle. As he approached his vehicle after crossing Allegheny Avenue, Kuilan took off his ski mask and placed the gun, a Glock 19 9-millimeter semi-automatic with an extended magazine, in the wheel well of another vehicle parked on "E" Street. After he initially walked away, Kuilan stopped, turned around, and retrieved the firearm from the other vehicle's wheel well before returning to the Buick Lacrosse and driving away. N.T. 12/5/2022 at 198-201, 233-236; Comm. Ex. 38.

At 9:40 a.m., Kuilan returned to Cheltenham Avenue, where he parked his vehicle in the same parking spot that he had left earlier. He then exited the vehicle and walked down the alleyway toward his residence at 5721 Tackawanna Street. N.T. 12/5/2022 at 204, 237-39.

As a result of an investigation of Kuilan by the Pennsylvania State Police that was ongoing at the time of the shooting, a GPS tracker had been placed on Kuilan's vehicle on December 22, 2020. The GPS tracker showed the Buick LaCrosse drive to and from the area of the shooting on December 23, 2020 and matched the movement of the vehicle captured on surveillance video. A day after the shooting occurred, the Buick LaCrosse was parked behind 5721 Tackawanna Street and remained there until Kuilan was arrested by the Pennsylvania State Police on February 12, 2021. N.T. 12/5/2022 at 122, 167-70; Comm. Ex. 34.

At the time of Kuilan's arrest, a search warrant was executed on the Buick Lacrosse and a 9-millimeter Glock 19 semiautomatic handgun with an extended magazine was recovered from under the driver's seat. That same day, Kuilan provided a statement to police in which he admitted that the Buick LaCrosse was his vehicle, even though it was registered to another individual, and that the Glock 19 belonged to him. N.T. 12/5/2022 at 111-116; Comm. Ex. 29.

Corporal Shadi Johnson of the Pennsylvania State Police, who saw Kuilan regularly in the six months prior to the incident while conducting an investigation of him, identified Kuilan as the shooter upon viewing the surveillance video. N.T. 12/5/2022 at 107-109.

Eight 9-millimeter fired cartridge casings ("FCCs") were recovered at the scene. All eight were located on the west side of "F" Street, where the Defendant was seen shooting on video. Each of the FCCs were fired from the Glock 19 found in Kuilan's Buick LaCrosse. Kuilan's DNA was found on the steering wheel and interior driver side door handle of the Buick Lacrosse. N.T. 12/5/2022 at 54-56, 84-89, 244-46; Comm. Ex. 24 & 26.

Trial Court Opinion (TCO), 5/9/23, at 2-4 (cleaned up).

At the end of the trial, the trial court found Kuilan guilty of the above offenses and later sentenced him to an aggregate term of 26 to 52 years' imprisonment.^[2] After the trial court denied his post-sentence motion, Kuilan filed this appeal to assert that his third-degree murder conviction was against the sufficiency and weight of the evidence.

II.

A.

Kuilan first claims that the Commonwealth presented insufficient evidence to convict him of third-degree murder.

As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. 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.

Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant's guilt is to be resolved by 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.

The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld.

Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa. Super. 2019).

Third-degree murder is defined by the Crimes Code as "all other kinds of murder" other than first-degree murder or second-degree murder. 18 Pa.C.S. § 2502(c). While Section 2502(c) does not set forth the requisite mens rea for third-degree murder, Section 302(c) of the Crimes Code provides: "When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly[,] or recklessly with respect thereto." 18 Pa.C.S. § 302(c). "The elements of third-degree murder, as developed by case law, are a killing done with legal malice." Commonwealth v. Marquez, 980 A.2d 145, 148 (Pa. Super. 2009) (citation omitted). "Malice exists where there is a particular ill-will, and also where 'there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences[,] and a mind regardless of social duty.'" Id. (citation omitted).

Kuilan first argues that surveillance footage shown at trial was not strong enough to prove beyond a reasonable doubt that he was the shooter. In support of this contention, Kuilan asserts that the shooter's face and body were covered for most of the incident, as the only time the shooter's face is seen in the footage is when he removes his mask to place the gun inside the wheel well of a car. According to Kuilan, this "grainy" footage was not conclusive enough to establish his identity as the shooter.

Kuilan's first argument fails for two reasons. First, as Kuilan concedes in his argument, the surveillance footage showed that the shooter removed his mask after the shooting when he was hiding the gun. Upon viewing this footage, Corporal Johnson of the Pennsylvania State Police (PSP) was able to identify Kuilan as the shooter in the video because Corporal Johnson had been investigating and saw Kuilan...