Termaine Hicks

The Crime

Just before 5 a.m. on Nov. 27, 2001, a 39-year-old woman was walking to work at a Dunkin’ Donuts in Philadelphia. The woman, who was identified as W.L., was walking in the 1500 block of Mifflin Street and turned to head south to the 1900 block of South 15th Street, when a man grabbed her, pointed gun at her, and dragged her to an area near a loading dock in the rear of St. Agnes Hospital.

She said she screamed for help as he beat her with his fist and the gun, causing her to bleed from head wounds. She said the man then pulled down her pants and began to sexually assault her. The woman said she never saw her attacker’s face in the dark, and she was confused and terrified.

The Investigation

Justin Votta, who lived across the street from the loading area, heard the screams and called 911 at 5:01 a.m. As Mr. Votta was on the phone, he would later testify, he saw the attacker dragging the woman. He said the man was wearing a gray hooded sweatshirt and a black jacket. Mr. 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.”

Philadelphia Police Officers Martin Vinson and Dennis Zungolo arrived at 5:06 a.m. They parked in the front of the hospital because they were in a loud, diesel-powered vehicle and they didn’t want to alert the attacker. The officers then walked around back to the loading dock.

Officer Vinson would testify that he saw 26-year-old Termaine Hicks on top of W.L., and that when the officers ordered Mr. Hicks to get up, he could see Mr. Hicks pull “his penis out of her vagina.”

Officer Vinson said that as he and Officer  Zungolo tried to arrest Mr. Hicks, they scuffled, and Mr. Hicks reached for a weapon. Officer Vinson said he could “see the light of a gun coming around toward me.” He said he shot twice, then a third time after Mr. Hicks raised his weapon again.

Then, Officer Vinson would say, Mr. Hicks fell down and put the gun back in his pocket.

After Mr. Hicks was shot, Officer Vinson said he told another officer, Robert Ellis, to check Mr. Hicks for a weapon. Officer Ellis said he recovered a .38-caliber Taurus revolver from Mr. Hicks’ right coat pocket. The weapon was registered to Philadelphia Police Officer Valerie Brown, who said she had purchased the gun from a retired police officer. She would tell investigators that she had kept the weapon in a closet in her basement and was unaware that it was missing.

Mr. Hicks and W.L. were taken to Jefferson Hospital for treatment. Mr. Hicks was charged with rape, aggravated assault, possessing an instrument of crime, and terroristic threats.

The Trial

On Oct. 31, 2002, Mr. Hicks went to trial in the Philadelphia Court of Common Pleas. He had been charged under the name Jermaine Weeks.

W.L. was unable to identify him as her attacker. The prosecution had stipulated prior to trial that there were no non-police witnesses who could identify the woman’s attacker.

W.L. did testify, however. Using an interpreter to translate from Cantonese, she said that she thought the police arrived while the attacker was still there. She said she believed that because when the man stopped attacking her, “there were spotlights, and there were cars around.” The prosecution contended that testimony created a timeline supporting what Officer Vinson and Officer Zungolo said they saw when they arrived at the rear of the hospital.

Officer Vinson testified that he saw Mr. Hicks stand up and pull up his pants. He said he ordered Mr. Hicks to put his hands up and face the officers. Then, Officer Vinson said he told Mr. Hicks to put his hands against the wall. He said that as he tried to gain control of Mr. Hicks’ hands, Mr. Hicks slapped Officer Vinson’s hand down. Officer Vinson said he stepped back, tripped, and fell backward into Officer Zungolo’s arms.

Officer Vinson said that as Mr. Hicks was turning and backing away, Officer Vinson repeated his command for Mr. Hicks to put his hands up. Officer Vinson said he drew his weapon and pointed it at Mr. Hicks. In response, Officer Vinson said, Mr. Hicks lunged at the officer. Officer Vinson said he could see Mr. Hicks’ weapon glint in the light, and that Mr. Hicks was almost fully facing him when Officer Vinson fired twice, and then a third time.

Officer  Zungolo was the only other officer to see the shooting. He was not called by the prosecution, but was called by the defense. Officer Zungolo had initially told investigators that Officer Vinson fired his weapon because Mr. Hicks had his hand in the pocket of his jacket and the officers feared he was about to pull out a gun. Now, he testified that Mr. Hicks had pulled his arm out of the jacket. He also conceded that Officer Vinson blocked his view, so he was unable to see what Mr. Hicks was holding at the time Mr. Hicks was shot.

Officer Ellis testified that Officer 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 Mr. Hicks was wearing a gray top and knit hat. Another officer on the scene, Officer Brian Smith, also testified that Mr. 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 Mr. Hicks’ clothing, but “without question,” it was very possible that her blood wound up on Mr. Hicks’s clothing while W.L. and Mr. Hicks were both on the ground right after the shooting.

Mr. 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 had gone to buy some cigars on the way home. He said he heard screams and saw two men running from the loading area. He said that he saw W.L. on the ground by a dumpster, with her pants below her knees. Her face was bloody. He said he nudged her, but she didn’t move.

Mr. Hicks said that as he reached into his pocket for his cellphone to call for help, 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. He said his hand was still in his pocket when he heard shots. He fell to the ground, chipping his tooth.

Mr. Hicks testified that Officer Vinson came over and said something like “damn” as he patted him down. Then, he said, the officer began crying. Mr. Hicks said the officers then planted a weapon on him.

Mr. Hicks had been 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. Mr. Hicks’ 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 Mr. Hicks that it was “beyond his expertise” to determine whether the bullets entered Mr. Hicks from the front or the back.

However, the defense contended that the bullet that lodged in Mr. Hicks’ chest clearly came from behind. While that contradicted Officer Vinson’s testimony that Mr. Hicks was facing him, a ballistics expert testified that it was possible that the bullet had ricocheted off a wall and then fragmented before hitting Mr. Hicks.

On Nov. 8, 2002, the jury convicted Mr. Hicks of rape, aggravated assault, possessing an instrument of crime, and terroristic threats. Prior to his sentencing, the defense filed a motion to overturn the conviction after obtaining 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 Mr. Hicks’ legal team. The police said it was an oversight and that the content — which was a series of photos taken every few seconds rather than a video stream — wasn’t compatible with their playback equipment. 

Significantly, the footage showed the beginning of the attack, with a man dragging W.L. to the loading area. The man had something on his head, either a hood or a hat. Neither was found on Mr. 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. Mr. Hicks, followed by the police, arrived just after the van left.

The judge denied the motion for a new trial, ruling that the footage was too unclear to be exculpatory and that witnesses had testified that Mr. Hicks was wearing a hoodie. On Feb. 27, 2003, Mr. Hicks was sentenced to between 12½ and 25 years in prison.

The Exoneration

Mr. 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 he had received ineffective assistance of counsel because his trial attorney failed to present medical testimony showing that he had been shot from behind. In 2013, a federal magistrate recommended the petition be denied. The recommendation was accepted by the U.S. District Court Judge R. Barclay Surrick. Mr. Hicks’ request for a certificate of appealability was denied.

Because Mr. Hicks asserted his innocence at parole proceedings, he was not judged suitable for early release from prison.

In 2015, Mr. 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 Mr. Hicks’ sweatpants.

The testing was completed on Aug. 20, 2019. Mr. 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 Mr. Hicks, but his attorneys noted there was no evidence that indicated Mr. Hicks was bleeding before he was shot. If this blood transferred after Mr. Hicks was shot, then it was equally probable that the blood belonging to W.L. that was found on Mr. Hicks had also transferred after the police arrived and had searched Mr. Hicks while their hands were covered with W.L.’s blood. Importantly, no blood was found inside Mr. Hicks’ 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 Officer Ellis’ testimony about pulling the bloody gun from Mr. Hicks’ pocket. A more recent examination also showed no visible blood stains.

Separately, in a 2018 petition for post-conviction relief, Mr. Hicks’ attorneys said the pathology reports and other evidence showed that Mr. 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 Mr. Hicks’ body adjacent to his spine, in his left buttock, and the rear of his upper arm.

After the petition was filed, the Philadelphia County District Attorney’s office asked the medical examiner’s office in Philadelphia to review Mr. Hicks’ 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 then Mr. Hicks’ attorneys asked Mr. Gulino to examine Mr. Hicks’s clothing.

The clothing would reveal a different answer. On Dec. 20, 2019, Gulino wrote, “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 then, the district attorney’s Conviction Integrity Unit (CIU) had begun to reexamine the case. In a response to an amended motion for relief filed by Mr. Hicks’ attorneys, the CIU’s supervisor, Patricia Cummings, said that Officer Vinson had falsely testified that Mr. Hicks was facing him when the shots were fired. The response also said that Officer Vinson falsely testified that Mr. Hicks had drawn a weapon before being shot and that other officers had recovered the gun from Mr. Hicks’ jacket pocket. The district attorney’s office also said Officer Zungolo falsely testified that Mr. Hicks was facing Officer Vinson, and that Officer Ellis falsely testified about recovering the bloody gun from Mr. Hicks’ 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 Mr. Hicks from behind and Mr. Hicks most likely never had the bloody gun in his pocket.”

The CIU asked the court to vacate Mr. Hicks’s conviction.

In a joint stipulation filed on Dec. 15, 2020, the defense and prosecution declared: “Given the factual inaccuracies, discrepancies, and inconsistencies in Officer Vinson’s testimony, in particular his false testimony that he shot Mr. Hicks when Mr. 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 Mr. 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 Dec. 16, 2020. Mr. Hicks was released from prison that day. 

In March 2022, Mr. Hicks filed a federal civil-rights lawsuit against the City of Philadelphia and several officers involved in his wrongful conviction.