J-A09045-15




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

ALBERT BRINKLEY

                        Appellant                  No. 2256 EDA 2013


       Appeal from the Judgment of Sentence entered May 31, 2013
          In the Court of Common Pleas of Philadelphia County
            Criminal Division at No: CP-51-CR-0014120-2011


BEFORE: BOWES, DONOHUE, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED JULY 10, 2015

      Appellant, Albert Brinkley, appeals from the judgment of sentence the

Court of Common Pleas of Philadelphia County entered May 31, 2013. On

appeal, Appellant argues the evidence was insufficient to support his second

degree murder, robbery, and possessing an instrument of crime convictions.

We disagree. Accordingly, we affirm.

      The relevant facts and procedural history can be summarized as

follows:

      [O]n April 2, 2011, at approximately 4:40 P.M., [Police Officer
      Candice McCoy] went to the Busti Housing Project at 46 th and
      Market Streets in Philadelphia in response to a radio call. A
      black Pontiac Bonneville was in the eastbound lane with the
      engine running. The driver’s side door was slightly open and the
      front passenger’s side window was shattered. Two (2) black
      males discovered in the vehicle had been shot multiple times.
      The male sitting in the front passenger’s seat was unresponsive.
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       The male sitting in the driver’s seat was complaining of pain in
       his legs. The medic unit arrived and transported the males to
       the hospital. The male [who] had been sitting in the passenger’s
       seat, later identified as Quince Morant [(Morant)] . . ., was
       pronounced dead on arrival. The other male, later identified as
       Sharad DuBose [(DuBose)], received treatment for his injuries.

Trial Court Opinion, 5/29/14, at 2.

       Following the shooting, the police interviewed several individuals,

including DuBose, Consuelo Matthews, Jerome Boyd, John Ashmore, and

Ivory Matthews, who provided written statements incriminating Appellant as

involved in the shooting. In essence, these witnesses stated that Appellant,

along with codefendant, robbed Morant and DuBose, in the course of which

they killed Morant and injured DuBose. At trial, however, with one exception

(Consuelo Matthews),1 all of the witnesses distanced themselves from the

prior statements they gave to the police, denying making any statement to

the police (DuBose), not recalling signing any statement (Boyd), not

recalling what information was provided to the police (Ashmore), disputing

the accuracy of the statement (Ivory Matthew), or claiming not to have

signed all pages of the statement (Ivory Matthew).

       On May 31, 2013, [Appellant] was found guilty by a jury of
       [m]urder of the [second] [d]egree; . . . two (2) counts of
       [r]obbery; and, [p]ossession of an [i]nstrument of [c]rime. He
       was sentenced that same day to [l]ife without possibility of
       parole for the [m]urder conviction and up to five (5) years for
       the [r]obbery convictions. All sentences to run concurrently.
____________________________________________


1
  At trial, Consuelo Matthews, “confirmed that most of [her] statement was
accurate. However, she testified that she did not tell [detectives] that
[Appellant] took Ebony into the bathroom with him.” Id. at 4.



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      On June 21, 2013, [Appellant] filed a [p]ost [s]entence [m]otion
      that was denied on August 1, 2013, without a hearing.

      On August 1, 2013, trial counsel was permitted to withdraw and
      appellate counsel was appointed.

Trial Court Opinion, 5/29/14, at 1 (footnote omitted). This appeal followed.

      On appeal, Appellant raises the following issues for our review:

      I.      Was the evidence sufficient to establish beyond a reasonable
              doubt that [A]ppellant committed the offense of [second degree]
              murder?

      II.     Was the evidence sufficient to establish beyond a reasonable
              doubt that the [A]ppellant committed two robbery offenses?

      III.    Was the evidence sufficient to      establish   that   [Appellant]
              possessed an instrument of crime?

Appellant’s Brief at 2.

      “In sufficiency review, we are obliged to determine whether the

evidence presented at trial and all reasonable inferences derived therefrom,

viewed in the light most favorable to the Commonwealth as verdict winner,

are sufficient to satisfy all elements of the offense beyond a reasonable

doubt.”      Commonwealth v. Johnson, 42 A.3d 1017, 1025 (Pa. 2012)

(quotation marks and citations omitted).

      “To secure a conviction for second-degree murder, the Commonwealth

must prove that the defendant committed a murder while [he or she] was

engaged . . . in the perpetration of a felony.” 18 Pa.C.S. § 2502(b) (internal

quotation marks omitted). “‘Perpetration of a felony’ is statutorily defined in

a very broad manner, encompassing, inter alia, ‘[t]he act of the defendant in

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engaging in . . . the commission of, or an attempt to commit, . . . robbery . .

..’ 18 Pa.C.S. § 2502(d).” Commonwealth v. Miller, 35 A.3d 1206, 1212

(Pa. 2012).

      A person commits robbery if, “in the course of committing a theft, he:

(i) inflicts serious bodily injury upon another; (ii) threatens another with or

intentionally puts him in fear of immediate serious bodily injury; (iii) [or]

commits or threatens immediately to commit any felony of the first or

second degree.” 18 Pa.C.S.A. § 3701(a)(1)(i)-(iii). “An act shall be deemed

‘in the course of committing a theft’ if it occurs in an attempt to commit theft

or in flight after the attempt or commission.” Id. at § 3701(a)(2).

      Finally, a person is guilty of possessing instruments of crime “if he

possesses a firearm or other weapon concealed upon his person with intent

to employ it criminally.” 18 Pa.C.S.A. § 907.

      The trial court, applying the proper standard of review, concluded as

follows:

      The evidence, viewed in the light most favorable to the
      Commonwealth, consisted of the eyewitness account of John
      Ashmore. In his initial statement to detectives, he indicated that
      he saw [Appellant] start shooting with a “long” silver and black
      handgun at the car in which the [victim] and DuBose were
      sitting. After the shooting, he saw [Appellant] reach inside the
      car and take something from the car. Ashmore went into the
      400 building after [Appellant] and up to Consuelo Matthews’
      apartment where he saw [Appellant], who had changed his
      clothes, in the bathroom talking to Ebony Matthews. Ashmore
      told the detectives that he told Consuelo, Ebony and Ivory what
      he saw regarding the shooting.        He identified a photo of
      [Appellant], who he has known all his life. At trial, although
      Ashmore acknowledged that he and his mother signed his

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     statement, he denied making the statement. Since Ashmore
     testified at trial, his statement was signed by him and he was
     cross-examined about his prior statement, his statement was
     admissible as substantive evidence. Therefore, the jury was free
     to believe all, some or none of what was in his initial statement.

     Commonwealth witness Jerome Boyd acknowledged that he gave
     a statement to detectives and recognized his signature on his
     statement: however, at trial, he testified that he did not recall
     being at the Busti projects on the day of the shooting or recall
     seeing [Appellant] or [codefendant] on the day of shooting.

     In his statement to [detectives] on May 4, 2011, Boyd indicated
     on the day of the shooting [Appellant] came to his apartment
     and said to him, “we need the gun”. Boyd retrieved a blue bag
     from his bedroom containing a nickel plated 9 millimeter gun
     with a black handle that [codefendant] had given him one week
     before and asked him to hold it for him. Approximately twenty-
     five (25) minutes after giving [Appellant] the gun, he heard
     between ten to fourteen gunshots coming from outside the
     building. As stated supra, since Boyd testified at trial, his
     statement was signed by him and he was cross-examined about
     his prior statement, his statement was admissible as substantive
     evidence. Therefore, the jury was free to believe all, some or
     none of what was in his initial statement.

     Commonwealth      witness    Consuelo    Matthews’    testimony
     corroborated Ashmore’s statement. She testified that on the day
     of the shooting she was in her apartment with Ebony, Ivory, her
     fiancé, and three cousins. While looking out the window after
     hearing gunshots, she saw [Appellant] coming down the steps
     and knock on her apartment door. When she came back into her
     apartment, [Appellant] was in the bathroom.

     In her statement to . . . detectives on April 17, 2011, she
     indicated that she left her apartment after hearing gunfire to
     look out of the window. Elante Sr. [a relative present in the
     apartment] locked the front door after her. She saw [Appellant]
     knock on the front door and Elante Sr. open the front door and
     allowed him inside. When she followed [Appellant] back into her
     apartment, she saw [Appellant] take her daughter, Ebony, into
     the bathroom and shut the door.




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      As stated supra, since Consuelo Matthews testified at trial,
      signed her statement and was cross-examined about her prior
      statement, her statement was admissible as substantive
      evidence. Therefore, the jury was free to believe all, some or
      none of what was in her initial statement.

      Commonwealth witness Ivory Matthews’ statement also
      corroborated Ashmore’s statement. At trial, she testified she did
      not recall telling the detectives much of what was contained in
      her statement. However, on April 6, 2011, Ivory acknowledged
      that she did give a signed statement to . . . detectives.

      In her statement Ivory recounted that: after the shooting, her
      sister Ebony, came into the house with Ashmore who told them
      that he saw [Appellant] walk up to the passenger side of a car
      and say to the occupants in the car, “y’all got to the count of five
      to give it up”. And that after counting to four (4), [Appellant]
      shot . . . Morant in the head, ran around to the other side of the
      car and say to Du[B]ose, “give it up, the watch, the coat and the
      ring”. He then shot at Du[B]ose. After Ashmore finished telling
      what happened, [Appellant] knocked on the apartment door,
      came into the apartment, went into the bathroom, and washed
      his hands. Ebony went into the bathroom with [Appellant] and
      was talking to him for a few minutes. Since Ivory testified at
      trial, acknowledged that she signed her statement and was
      cross-examined about her prior statement, her statement was
      admissible as substantive evidence. Therefore, the jury was free
      to believe all, some or none of what was in her initial statement.

      The ballistic evidence corroborated Boyd’s testimony as to the
      caliber of gun that he gave to [Appellant]. Nine (9) of the ten
      (10) bullets recovered were determined to have been fired from
      the same firearm[,] which was a 9 mm handgun.

Trial Court Opinion, 5/29/14, at 13-15.

      Upon review of the record and pertinent law, we conclude the evidence

presented at trial, and all reasonable inferences derived therefrom, viewed in

the light most favorable to the Commonwealth as verdict winner, is sufficient




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to satisfy all elements of the offenses at issue here beyond a reasonable

doubt.

       Appellant    argues     the   evidence       was     insufficient   to   support   his

convictions because DuBose did not (i) testify Appellant robbed Morant and

DuBose, (ii) identify Appellant at trial as the shooter; or (iii) testify that

anything was taken from them (DuBose and Morant). Additionally, Appellant

argues that the evidence was insufficient because Appellant was not found in

possession of stolen property or the handgun used in the shooting.

       Appellant believes the Commonwealth has failed to prove beyond a

reasonable doubt that Appellant committed the crimes ascribed to him

because     its   witnesses    recanted        at   trial   their   original    unambiguous

identification of Appellant as the perpetrator of the robbery and murder at

issue here. Appellant ignores that the original statements provided by the

witnesses are admissible, and in fact were admitted,2 as substantive

evidence against Appellant.          Commonwealth v Brown, 52 A.3d 1139,

1171 (Pa. 2012); Pa.R.E. 803.1(1). The jury, having heard the statements

the witnesses made to the detectives, and having heard their “testimony” at

trial, believed the version of the facts as first recounted to the officers, as

opposed to the version provided at trial. The jury was entitled to do so, see
____________________________________________


2
  All witness statements were admitted as substantive evidence with one
exception only, namely DuBose’s statement.     It was not admitted as
substantive evidence because it was not adopted by DuBose either at the
time of the statement or in court.



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Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011), and Appellant’s

unsupported argument to the contrary fails.

      Appellant also ignores that inconsistencies in the witnesses’ recounting

of the facts do not raise questions of sufficiency of the evidence, but

questions of weight.      Brown, 52 A.3d at 1171; Sanchez, supra;

Commonwealth v. Montalvo, 956 A.2d 926, 932 n.6 (Pa. 2008).               The

jury, again, decided to give more weight to the statements made to the

officers than the testimony provided at trial.       We cannot reweigh the

evidence, or substitute our judgment for that of the jury.    See Sanchez,

supra.

      The approach taken by Appellant—ignoring the evidence against him

and emphasizing the “missing” evidence—shows Appellant also fails to

recognize that under our standard of review for sufficiency of the evidence,

we must view the evidence in the light most favorable to the verdict winner,

in this case, the Commonwealth.        Appellant, however, impermissibly is

asking us to view the evidence against Appellant in the light least favorable

to the Commonwealth or, alternatively, view the absence of evidence against

Appellant in the light most favorable to the Appellant.

      Finally, Appellant fails to recognize that the Commonwealth did not

need to prove that Appellant was in possession of the stolen goods or the

handgun at the time of apprehension to carry its burden in connection with

the robbery and PIC convictions.    See McElrath v. Commonwealth, 592


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A.2d 740, 745 (Pa. Super. 1991) (identification of defendant by victim was

sufficient to sustain conviction for robbery); Commonwealth v. Robinson,

817 A.2d 1153, 1162 (Pa. Super. 2003) (victim’s testimony that armed

assailants robbed her was sufficient to establish that defendant violated the

Uniform Firearms Act, despite no firearm being recovered when defendant

was apprehended by police). The law is clear on this point.

     In light of the foregoing, we conclude the trial court correctly

concluded the Commonwealth presented sufficient evidence to carry its

burden.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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