 Termaine Hicks (Photo: Jason E. Miczek for AP/Innocence Project)
The woman, known in court papers as W.L., would later testify that a man grabbed her from behind, pointed a gun at her, and then dragged her to an area near the loading dock at the back of St. Agnes Hospital. She screamed for help as he beat her with his fist and gun. Then he pulled down her pants and began to sexually assault her. The woman said she never saw her attacker’s face; it was dark, and she was confused and terrified.
Justin Votta, who lived across the street from the loading area, heard the screams and called 911 at 5:01 a.m. As Votta was on the phone, he would later testify, he could see the attacker dragging the woman and he said that the man was wearing a gray hooded sweatshirt and a black jacket. Votta said that he could not see the man’s face. Another neighbor also called 911 and was told by a dispatcher that “we got it.”
Officers Martin Vinson and Dennis Zungolo of the Philadelphia Police Department arrived at 5:06 a.m. They parked in the front of the hospital, because they were in a loud, diesel-powered wagon, and they didn’t want the attacker to hear them pull up. The officers walked around back to the loading dock.
Vinson would testify that he saw 26-year-old Termaine Hicks on top of W.L., and that when the officers ordered Hicks to get up, he could see Hicks pull “his penis out of her vagina.”
As the officers tried to arrest Hicks, Vinson said, a scuffle occurred. Vinson said Hicks reached for a weapon and that he could “see the light of a gun coming around toward me.” He said he shot twice, then a third time after Hicks raised his weapon again.
Then, Vinson would say, Hicks slouched down and put the gun back in his pocket.
After Hicks was shot, Vinson said he told another officer, Robert Ellis, to check Hicks for a weapon. Ellis said he recovered a .38 caliber Taurus revolver from Hicks’s right coat pocket. The weapon was registered to Philadelphia Police Officer Valerie Brown, who said she bought the gun from a retired police officer. She would tell investigators that she had kept the weapon in a closet in her basement and had no idea it was missing.
Hicks and W.L. were each taken to Jefferson Hospital for treatment. Hicks was charged with rape, aggravated assault, possessing instruments of crime, and terroristic threats.
Hicks’s trial in the Philadelphia Court of Common Pleas began on October 31, 2002. W.L. was unable to identify her attacker, and the state stipulated prior to trial that there were no non-police witnesses who could identify the rapist.
But W.L. did testify. Using an interpreter to translate from Cantonese, she said that she thought the police arrived while the rapist was still there, because when her attack ended, “there were spotlights, and there were cars around.” That seemed to create a timeline supporting the state’s theory of the crime, and what Vinson and Zungolo said they saw when they arrived at the back of the hospital.
Vinson was the state’s main witness. He said he saw Hicks stand up and pull up his pants. He said he ordered Hicks to put his hands up and face the officers. Then, he said, he told him to put his hands against the wall. He said that as he tried to gain control of Hicks’s hands, Hicks slapped Vinson’s hand down. Vinson backed up, tripped, and fell into Zungolo’s arms.
Vinson said Hicks was turning and backing away, when he told him again to put his hands up. Then, Vinson said, he drew his service weapon and pointed it at Hicks, who lunged at the officer. Vinson said he could see Hicks’s weapon glint in the light, and that Hicks was almost fully facing him when Vinson fired twice, and then a third time.
Zungolo was the only other officer to see the shooting. He was not a prosecution witness but was called by the defense. He had initially told investigators that Vinson fired his weapon because Hicks had his hand in the pocket of his jacket and the officers feared he was about to pull out a gun. At trial, he testified that Hicks had thrust his arm out of the jacket. But he also testified that Vinson blocked his view and he was unable to see what Hicks was holding at the time he was shot.
Ellis testified that Vinson told him, “Get the gun, get the gun. It should be in his pocket.” He said he found the weapon there, with “blood all over the gun,” on the barrel and the grip. He also said that Hicks was wearing a gray top and knit hat. Officer Brian Smith also testified that Hicks was wearing a gray hoodie.
A forensic analyst testified that blood on the gun barrel was consistent with W.L.’s. He also testified that blood consistent with W.L.'s was found on Hicks’s clothing, but “without question” it was very possible that the transfer had happened while they were both on the ground in the moments after the shooting.
Hicks testified in his own defense. He said that he had walked his younger brother to a bus stop at around 4:30 a.m. and then gone to buy some cigars on the way home. He said he heard screams and saw two men running from the loading area. By a dumpster, he saw W.L. on the ground, with her pants below her knees and her face covered in blood. He said he nudged her, but she didn’t move.
Hicks said he was reaching into his pocket for his cellphone when the officers arrived, startling him. He said he tried to explain to them that he was helping the woman and was about to call 911. He said the officers ordered him to stand up and that his hand was still in his pocket when he heard shots. He fell to the ground, chipping his tooth.
Hicks testified that Vinson came over and said something like “Damn,” as he patted him down. Then, he said, the officer began crying. He said the officers planted the weapon on him.
Hicks was shot three times. One bullet went through the rear of his upper arm and lodged in his chest. A second bullet appeared to have entered near his spine, and a third near his left buttock. But Hicks’s attorneys did not present any evidence about the directionality of the bullets, and the defense and prosecution stipulated to a report from the doctor who operated on Hicks that it was “beyond his expertise” to determine whether the bullets entered Hicks from the front or the back.
The bullet that entered Hicks’s chest clearly came from behind. While that contradicted Vinson’s testimony that Hicks was facing him, a ballistics expert testified that it was possible that the bullet had ricocheted off a wall and then fragmented before striking Hicks.
On November 8, 2002, the jury convicted Hicks on all four counts. Prior to his sentencing, Hicks filed a motion to overturn the conviction after his attorneys were given surveillance footage taken from the back of the hospital. The police had viewed the footage on the day of the attack, but they had never given a copy to Hicks’s legal team. They said it was an oversight; the content – which was a series of photos taken every few seconds rather than a video stream – wasn’t compatible with their playback equipment. The footage showed the beginning of the attack, with a man dragging W.L. to the loading area. He had something on his head, either a hood or a hat. Neither was found on Hicks.
The footage also appeared to explain why W.L. thought the attack continued until the police arrived. She had told police that the attack stopped when bright lights shined on her assailant, who then fled. But the footage showed that the lights were from a delivery van. Hicks and then the police arrived just after the van left.
A judge denied the motion for a new trial, ruling that the footage was too unclear to be exculpatory and that police witnesses had testified that Hicks was wearing a hoodie. On February 27, 2003, Hicks was sentenced to between 12½ and 25 years in prison.
As he was sentenced, Hicks told the judge: “an innocent man can’t sit in jail for long.”
Hicks began a series of appeals through the Pennsylvania courts and then the federal courts, where he filed a pro se petition for a writ of habeas corpus. He continued to claim that the surveillance video was evidence of innocence and the state’s failure to turn it over to his defense was grounds for a new trial. He also claimed ineffective assistance of counsel, because his trial attorney failed to present medical testimony about the manner in which he was shot. In 2013, a federal magistrate wrote a memo recommending denial of his petition.
Because Hicks asserted his innocence at parole proceedings, he was not judged suitable for early release from prison.
In 2015, Hicks filed a petition for post-conviction DNA testing. He was now represented by attorneys with the Innocence Project and by Susan Lin of Kairys, Rudovsky, Messing, Feinberg & Lin. The petition was granted in 2017, and DNA testing was performed on several pieces of crime scene evidence: W.L.’s pants and underwear, cervical and vaginal swabs, and Hicks’s sweatpants.
The testing was completed on August 20, 2019. Hicks was excluded as a contributor to genetic material found on the waistband of W.L.’s underwear. The testing showed a genetic marker consistent with W.L.’s husband and also the presence of an unknown male contributor.
DNA testing was also performed on a stain on W.L.’s pants on the top leg, below the front pocket, which had tested presumptively positive for blood at the time of trial. The DNA testing of this stain showed male DNA belonging to Hicks, but his attorneys noted there was no evidence that indicated Hicks was bleeding before he was shot. If this blood transferred after Hicks was shot, then it was equally probable that the blood belonging to W.L. that was found on Hicks had also transferred after the police arrived and had searched Hicks while their hands were covered with the victim’s blood. Importantly, no blood was found inside Hicks’s jacket pocket. At trial, a forensic analyst had testified that no testing was performed on the pocket but that any visible blood would have been noted. This appeared to contradict Ellis’s testimony about pulling the bloody gun from Hicks’s pocket. More recent examination also showed no visible blood stains.
Separately, in a 2018 petition for post-conviction relief, Hicks’s attorneys said the pathology reports and other evidence showed that Hicks was shot from behind three times. Dr. Michael Baden, a former chief medical examiner for New York City, said that the three bullets entered Hicks’s body adjacent to his spine, in his left buttock and the rear of his upper arm.
After the petition was filed, the Philadelphia Office of the District Attorney asked the medical examiner’s office in Philadelphia to review Hicks’s medical records. Dr. Sam Gulino said that based on the medical records alone, he could not determine the direction of two of the bullets. Because of that finding, prosecutors initially moved to dismiss the petition, but Hicks’s attorneys asked Gulino to examine Hicks’s clothing.
The clothing gave a different answer. Gulino wrote on December 20, 2019, “Whereas the medical records and radiographs were inconclusive regarding the directionality of the remaining wounds . . . the clothing provides evidence that: a) The entrance wounds were in the left midportion of the back and left buttock” and “b) These two bullets exited the front of the body (the upper abdomen and the left groin, per the medical records) but did not exit the clothing.”
By now, the district attorney’s Conviction Integrity Unit (CIU) was also reexamining the case. In a response to an amended motion for relief filed by Hicks’s attorneys, the CIU’s supervisor, Patricia Cummings, said that Vinson had falsely testified that Hicks was facing him when the shots were fired. The response said he also falsely testified that Hicks had drawn a weapon before being shot and that other officers had recovered the gun from Hicks’s jacket pocket. The DA’s office also said Zungolo falsely testified that Hicks was facing Vinson, and that Ellis falsely testified about recovering the bloody gun from Hicks’s pocket.
The response said: “The scientific evidence now available to the defense, the Commonwealth, and the Court demonstrates that—contrary to the trial testimony of Officers Vinson, Zungolo, and Ellis —Officer Vinson shot Hicks from behind and Hicks most likely never had the bloody gun in his pocket.
The CIU asked the court to vacate Hicks’s conviction.
In a joint stipulation filed on December 15, 2020, the parties wrote: “Given the factual inaccuracies, discrepancies, and inconsistencies in Officer Vinson’s testimony, in particular his false testimony that he shot Hicks when Hicks was almost fully facing him and lunging at him—which appears to stem from an attempt to justify his use of deadly force—there can be no confidence in Officer Vinson’s testimony as to what Hicks was allegedly doing immediately before Officer Vinson shot him.”
Judge Tracy Brandeis-Roman of the Philadelphia Court of Common Pleas vacated the conviction that same day, and the charge was dismissed on December 16, 2020.
Hicks was released from prison that day. He told the Philadelphia Inquirer: “I feel 100 pounds lighter. It’s unfortunate and sad that it took how long it took for me to clear my name.”
Vanessa Potkin, one of Hicks’s attorneys with the Innocence Project, said: “Mr. Hicks’s case is yet another example of the pervasive problem of police perjury in the criminal legal system. The cover up of shooting an innocent man required the false testimony of three officers and the acquiescence of a dozen more.”
In March 2022, Hicks filed a federal civil-rights lawsuit against the City of Philadelphia and several officers involved in his wrongful conviction.
– Ken Otterbourg
|