J. S20022/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
DONOVAN A. LEAMY,                         :          No. 2637 EDA 2015
                                          :
                          Appellant       :


             Appeal from the Judgment of Sentence, July 23, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0008236-2013


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


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

        Donovan A. Leamy appeals from the judgment of sentence of July 23,

2015, following his conviction of attempted murder, recklessly endangering

another person (“REAP”), and a violation of the Uniform Firearms Act

(“VUFA”).1 We affirm.

        The trial court has summarized the facts of this case as follows:

                     At trial, Tyree Gibbons testified that on the
              afternoon of April 18, 2013, he got into a fist fight
              with Appellant outside a corner store at the corner of
              Vernon Road and Phil-Elena Street in the Mt. Airy
              section of Philadelphia after Appellant complained
              that Gibbons had been driving too fast. Gibbons
              recognized Appellant, who has a large tattoo on
              his [sic] the middle of his forehead and by the sides
              of his eyes, as a member of a group called
              “Splash Life,” and told police that he often saw
              Appellant and other members of the group on the

1
    18 Pa.C.S.A. §§ 901(a), 2705, & 6106(a)(1), respectively.
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              corner by his house. A videotape of the fight showed
              a very angry Appellant approach Gibbons and
              showed fists swinging with Gibbons getting the
              better of Appellant. Gibbons also told police that he
              heard Appellant tell another male named Drevon[2]
              to go get the gun.       However, Drevon declined,
              saying that Gibbons was “cool.” Although Appellant
              claimed to have gotten over the fight once it ended,
              the evidence showed that Appellant was still
              tweeting about the fight on Twitter at 9:42 p.m. and
              9:44 p.m. that night. One of the tweets contained
              numerous icons of fists and guns.

                     Approximately thirty minutes before the
              shooting, a white Impala pulled up next to Gibbons’
              cousin Deonte Barr.       Appellant’s friend Drevon
              hopped out of the vehicle and asked Deonte who was
              at his house. Deonte responded that only his mother
              was at home. Deonte could see the handle of a gun
              in Drevon’s waistband.     Aware that a fight had
              occurred earlier that day, Deonte rushed home to
              warn his family.

                    At approximately 9:00 p.m. that night,
              Gibbons picked up another cousin, Justin Tift, who
              had just come to Philadelphia from Charlotte,
              North Carolina to visit his grandmother who was in
              the hospital. The two men stopped at a liquor store
              and then at Checkers before going to their cousin
              Deonte’s house at 7900 Fayette Street. At Checkers,
              Mr. Tift observed Gibbons speaking to someone in a
              white Impala. After they arrived at 7900 Fayette
              Street at approximately 10:00 p.m., Mr. Tift went
              outside with Gibbons upon hearing that someone had
              tried to grab Deonte.        Once outside, Mr. Tift
              observed a white Impala that appeared empty
              suddenly pull off. About a minute later, Mr. Tift
              heard Gibbons yell “run.” Gibbons made it safely
              back into the house while Mr. Tift was shot ten times
              as he ran, falling in front of the steps to the
              residence. Mr. Tift underwent several surgeries for
              his multiple gunshot wounds and was still

2
    Drevon Williams, appellant’s co-defendant at trial.


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           undergoing rehabilitation at the time of trial. The
           shooting left his right leg paralyzed. He testified that
           he is in constant pain in the right foot and knee.
           Although Mr. Tift did not see who shot him, Gibbons
           told police that two males walked out of the
           driveway and started shooting. He described one of
           the shooters as tall, thin build, dark skin and tattoos
           on his face. Both shooters wore masks. Gibbons
           identified the male with the facial tattoos as
           Appellant, the same male with whom he had
           engaged in a fist fight earlier that day.

                  Appellant denied participation in the shooting
           and presented several alibi witnesses in his defense.
           One of [the] witnesses, Joan Seech, stated she has
           known Appellant for many years from the
           neighborhood and that he was always at her home
           visiting with her children. Ms. Seech testified that
           she was in her bedroom when she heard the
           gunshots. She further testified that she immediately
           went to her children’s bedroom, she did not see
           Appellant there and that her children told her
           Appellant had gone to see what had happened.
           Ms. Seech later changed her testimony to say that
           Appellant was still in her home at the time.

                  Sabrina Gray, Ms. Seech’s daughter, claimed
           that Appellant was at her home all day, that he
           never left, and that he was with her in her room
           when the gunshots occurred. However, Ms. Gray
           was unable to explain how Appellant could have been
           at her home all day when a video showed him in a
           fight outside a store in the afternoon.

                  Gerald Scott, who was present at the fist fight
           earlier in the day, testified that he was in
           Sabrina Gray’s room with Appellant when they heard
           gunshots, that he left with Appellant to see what had
           happened, and was arrested. Scott refused to sign
           his statement to police.

Trial court opinion, 5/23/16 at 2-4 (citations to the transcript omitted;

punctuation corrected).


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                    On April 18, 2013, [appellant] was arrested
              and charged with [the above-mentioned offenses].
              On April 7, 2015, Appellant waived a jury and
              proceeded to a trial before the Court. The trial was
              held over three days [on] April 7, 2015, April 13,
              2015, and April 16, 2015. On April 16, 2015 the
              Court found Appellant guilty of Attempted Murder,
              REAP and VUFA § 6106.[3] On July 23, 2015, the
              Court sentenced Appellant to an aggregate term of
              12 to 27 years[’] imprisonment. Appellant filed a
              Notice of Appeal on August 23, 2015.[4]            On
              August 26, 2015, this Court ordered Appellant
              pursuant to Pa.R.A.P. 1925(b) to file with the Court a
              Concise Statement of Matters Complained of on
              Appeal. A timely Pa.R.A.P. 1925(b) Statement of
              Matters Complained of on Appeal was filed by
              Appellant on November 12, 2015.[5]

Id. at 1-2.

        Appellant has raised the following issue for this court’s review: “Was

the evidence insufficient to support [appellant]’s convictions because the

verdict of guilty on all counts was based on a guess and pure speculation?”

(Appellant’s brief at 4.)

        Appellant argues that the evidence was insufficient to prove his

identity as one of the shooters because even though he was arrested shortly

after the incident, no firearm was recovered and no gunshot residue was




3
    Drevon Williams was acquitted.
4
    Appellant did not file post-sentence motions.
5
  Appellant received three extensions of time in which to file his
Rule 1925(b) statement.


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found on appellant’s person.     (Id. at 11.)6   Appellant further argues that

Gibbons’ identification, based at least partially on appellant’s facial tattoos,

was inherently unreliable because the perpetrators wore masks.          (Id. at

11-12.)   According to appellant, the trial court would have to infer that

Gibbons had “x-ray vision” in order to rely on his identification. (Id. at 12.)

Appellant contends that motive alone, i.e., the fist fight that occurred earlier

that day, is insufficient to sustain a conviction. (Id. at 11.)

            The standard we apply in reviewing the sufficiency of
            evidence is whether, viewing all the evidence
            admitted at trial in the light most favorable to the
            verdict winner, there is sufficient evidence to enable
            the fact-finder to find every element of the crime
            beyond a reasonable doubt. In applying the above
            test, we may not weigh the evidence and substitute
            our judgment for that of the fact-finder. In addition,
            we note that the facts and circumstances established
            by the Commonwealth need not preclude every
            possibility of innocence. Any doubts regarding a
            defendant’s guilt may be resolved by the fact-finder
            unless the evidence is so weak and inconclusive that
            as a matter of law no probability of fact may be
            drawn from the combined circumstances.            The
            Commonwealth may sustain its burden of proving
            every element of the crime beyond a reasonable
            doubt by means of wholly circumstantial evidence.
            Moreover, in applying the above test, the entire
            record must be evaluated and all evidence actually
            received must be considered. Finally, the 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.



6
  Investigators did recover fourteen fired cartridge casings (“FCCs”) from the
scene, eight .9mm Luger FCCs and six .380 caliber FCCs. (Notes of
testimony, 4/7/15 at 57.)


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Commonwealth v. Johnson, 833 A.2d 260, 262-263 (Pa.Super. 2003),

quoting   Commonwealth        v.   Lambert,    795   A.2d     1010,   1014-1015

(Pa.Super. 2002) (internal citations and quotation marks omitted).

      Gibbons gave a statement to police in which he identified appellant as

one of the gunmen.       (Notes of testimony, 4/13/15 at 20.)7          Gibbons

recognized him from the fight earlier that day at the corner store. (Id. at

18.) Gibbons stated that appellant and his group called “Splash Life” were

always hanging around on the corner. (Id. at 19-20.) Gibbons described

appellant as a tall, dark-skinned man with a big tattoo in the middle of his

forehead and around the sides of his eyes. (Id. at 19-21.) At the time of

the shooting, appellant was wearing the same clothing that he had on during

the fight. (Id. at 21.) Gibbons told police that although they were wearing

masks, he could see appellant’s facial tattoo. (Id. at 20.)



7
  Gibbons was a recalcitrant witness and refused to identify appellant at trial.
In fact, Gibbons claimed he could not remember the shooting or giving a
statement to police. (Id. at 9-10.) Therefore, Gibbons’ statement to police
incriminating appellant was admissible at trial as substantive evidence.
Commonwealth v. Lively, 610 A.2d 7, 9-10 (Pa. 1992); P.R.E. 803.1 (A
writing signed and adopted by the declarant is deemed to have been given
under reliable circumstances and is not excluded by the hearsay rule if it is
inconsistent with the declarant’s testimony at trial and the declarant is
subject to cross-examination). Here, Gibbons’ statement was reduced to
writing and signed and adopted by the witness. (Notes of testimony,
4/13/15 at 49-51; Commonwealth’s Exhibit 7.)             Gibbons also picked
appellant’s photo out of a photo array. (Id. at 41, 51, 56; Commonwealth’s
Exhibit 10.) See also Commonwealth v. Ly, 599 A.2d 613, 617 (Pa.
1991) (“where witnesses are in court and subject to cross-examination, a
police officer may testify concerning pre-trial identification by the witness”
(citation omitted)).


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      Gibbons’ statement, which the trial court found to be reliable,

combined with other circumstantial evidence including motive, was clearly

sufficient to sustain the verdict. Gibbons was familiar with appellant and his

distinctive facial tattoo. As the trial court observed, “because the tattoo in

the middle of Appellant’s forehead was quite large and continued down the

side of his eyes, the tattoo would have been visible around the eye cutouts

despite the mask.” (Trial court opinion, 5/23/16 at 5.) Gibbons accurately

described appellant’s height, build, and skin tone. (Id.) Moreover, “[A]ny

uncertainty in an eyewitness’s identification of a defendant is a question of

the weight of the evidence, not its sufficiency.” Commonwealth v. Cain,

906 A.2d 1242, 1245 (Pa.Super. 2006), appeal denied, 916 A.2d 1101 (Pa.

2007), citing Commonwealth v. Minnis, 458 A.2d 231, 233 (Pa.Super.

1983).

      As described above, there was additional evidence linking appellant to

the crime, including that he had lost a fight to Gibbons earlier in the day and

had asked Drevon for a gun.      Appellant sent out angry tweets about the

fist fight just minutes prior to the shooting.     The trial court also found

appellant’s alibi witnesses to be not credible.      The trial court believed

Gibbons’ prior statement to police which was its prerogative.      (Trial court

opinion, 5/23/16 at 6.) Appellant’s sufficiency claim fails.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/16/2017




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