J-A10040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TYRELL M. GOODING

                            Appellant                 No. 560 MDA 2014


            Appeal from the Judgment of Sentence January 25, 2013
               in the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003513-2011


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED MAY 14, 2015

        Tyrell M. Gooding (“Appellant”) appeals from the judgment of sentence

entered following his jury trial conviction for two counts of robbery (inflict

serious bodily injury),1 and one count each of aggravated assault,2 persons

not to possess firearms,3 and firearms not to be carried without a license.4

We affirm.

        On July 8, 2010, police arrested Appellant.     Following a jury trial

conducted on December 3-5, 2012, a jury convicted Appellant as stated

____________________________________________


1
    18 Pa.C.S. § 3701(a)(1)(i).
2
    18 Pa.C.S. § 2702(a)(1).
3
    18 Pa.C.S. § 6105(a)(1).
4
    18 Pa.C.S. § 6106(a)(1).
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supra. On January 25, 2013, the trial court sentenced Appellant to 84 to

168 months’ incarceration on the first robbery conviction, 84 to 168 months’

incarceration on the second robbery conviction to be served consecutively to

the first, 84 to 168 months’ incarceration on the aggravated assault

conviction to be served concurrently with the second robbery sentence, 48

to 96 months’ incarceration on the persons not to possess firearms

conviction to run concurrently with the second robbery sentence and the

aggravated assault sentence, and 36 to 72 months’ incarceration on the

firearms not to be carried without a license to run consecutive to the second

robbery conviction.

     On February 22, 2013, Appellant filed a timely notice of appeal. This

Court dismissed that appeal on May 2, 2013, for failure to file a docketing

statement in compliance with Pa.R.A.P. 3517.       See Commonwealth v.

Gooding, 436 MDA 2013 (May 2, 2013, per curiam). Appellant thereafter

filed a petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546, seeking reinstatement of his direct appeal rights

based on counsel’s failure to file the docketing statement with this Court as

ordered.   The PCRA court granted Appellant’s petition on March 3, 2014.

Appellant then filed a timely notice of appeal on March 28, 2014, and filed a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal on June 10,

2014. The trial court issued its Pa.R.A.P. 1925(a) opinion on July 18, 2014.

     Appellant raises the following issue for review:




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       A. Did the trial court commit an error of law in sentencing the
       appellant because [the] evidence adduced at trial and all
       reasonable inferences therefrom were insufficient as a matter of
       law to support any finding of guilt?

Appellant’s Brief, p. 5 (all capitals removed). Specifically, Appellant asserts

that, because the Commonwealth’s witnesses (1) testified they were under

the influence of narcotics at the time of the incident, and (2) recanted their

prior identifications of Appellant at trial, the Commonwealth put forth

insufficient evidence to convict Appellant.5 See Appellant’s Brief, pp. 13-14.

This claim challenges the sufficiency of the evidence.6

       When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

       The standard we apply in reviewing the sufficiency of the
       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
____________________________________________


5
   The only legal authority Appellant cites is the law pertaining to the
standard of review for sufficiency of the evidence claims. See Appellant’s
Brief, pp. 12-14. Additionally, Appellant includes no citations to the record
to support his argument. Id. Ordinarily, such citation deficiencies may form
grounds for waiver of claims. See Pa.R.A.P. 2119. However, because
Appellant’s claim is basic and readily ascertainable, we will examine the
claim on its merits.
6
  Although, as the Commonwealth argues, this claim appears to challenge
the weight of the evidence, not the sufficiency of the evidence, this Court
has determined where witnesses recant their testimony, such a claim goes
to the sufficiency of the evidence. See Commonwealth v. Bibbs, 970 A.2d
440 (Pa.Super.2009); Commonwealth v. Sherman, 488 A.2d 348, 349
(Pa.Super.1985).




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      crime beyond a reasonable doubt. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011).

      Witness recantation occurs not infrequently in the prosecution of

criminal matters. “It is well settled that it is within the trial court’s discretion

to permit a party to impeach its own witness with prior inconsistent

statements.”       Commonwealth         v.   Grimes,     648    A.2d    538,   543

(Pa.Super.1994).     To properly invoke such discretion, the trial court must

consider the following factors:

      (1) whether the testimony was unexpected;

      (2) whether the testimony was contradictory;

      (3) whether the testimony was harmful to the party calling the
      witness and beneficial to the opposing side; and

      (4) whether the scope of cross-examination was excessive.




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Grimes, 648 A.2d at 543-44 (citing Commonwealth v. Waller, 444 A.2d

653, 656 (Pa.1982)). Further, when faced with a witness who recants, our

Supreme Court has ruled that the Commonwealth may introduce as

substantive evidence, “only those prior inconsistent statements [of the

witness] ‘that are demonstrably reliable and trustworthy[.]’” Id. at 544.

Permitted “reliable and trustworthy” prior inconsistent statements include:

(1) contemporaneous, verbatim, electronic, audiotaped or videotaped

recordings of a witness’s statements, (2) statements given under oath at a

formal legal proceeding, or (3) statements reduced to a writing signed and

adopted by the declarant. Bibbs, 970 A.2d at 448 (citing Commonwealth

v. Wilson, 707 A.2d 1114, 1118 (Pa.1998)).

     The trial court summarized the evidence introduced at the trial of this

matter as follows:

     At 5:30 a.m., on July 8, 2010, Officer Nathan Ishman (“Officer
     Ishman”) of the Harrisburg Bureau of Police (“HBP”) was
     dispatched to respond to a shots fired call at 18th and Regina
     Streets in the Allison Hill section of Harrisburg City.      The
     dispatch also reported that a victim was in a residence at 40
     North 17th Street, one block west of the reported shooting
     location. Officer Ishman arrived at the 17th Street residence
     along with Officer Rudy of the HBP where they observed a
     chaotic scene through the open door with the victim seated on a
     chair and bleeding from the chest. In an attempt to stop the
     bleeding, one of the people present was putting pressure on the
     gunshot wound which was located at right chest above the
     breast. Officer Ishman was able to obtain the victim’s name,
     Deangelo Letterlough (“Letterlough”), date of birth and a few
     facts about the shooting incident. The information provided by
     Letterlough included a description of the individuals involved in
     the shooting. Letterlough was transported by ambulance to the
     hospital.

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           Officers Ishman and Rudy proceeded to 18th and Regina
     Streets on foot to investigate. At the crime scene, by a house
     on the northwest corner, the officers found a cellphone charger,
     black bandana and sunglasses. They also observed droplets of
     blood on the sidewalk alongside a small local store at 17th and
     Regina Streets across from the residence where Letterlough was
     found.     After the crimes scene was secured, forensic
     investigator, Officer Christopher Silvio (“Officer Silvio”) gathered
     and processed the evidence police had recovered. In addition to
     gathering the items found by the responding officers, he found a
     white washcloth and took a blood sample from the droplets
     observed on the sidewalk.       Officer Silvio later went to the
     medical center where Mr. Letterlough had been transported for
     the purpose of photographing his injuries and collecting his
     clothes as evidence. While at the hospital, he observed and
     photographed the gunshot wound to Letterlough’s right chest.

           The washcloth and bandana were later tested for DNA
     evidence by Alex Glessner of the Pennsylvania State Police
     forensics lab. A DNA sample was collected from Appellant for
     comparison of the evidence tested. No interpretable results
     were obtained from the washcloth. However, testing of the
     bandana resulted in the identification of at least three DNA
     contributors from which Appellant could not be excluded. As
     Appellant’s profile matched some of the recovered DNA, Mr.
     Glessner concluded that he was a contributor; however, there
     was not a single majority contributor identified.

            At trial, Mr. Letterlough testified to his version of the
     events that took place in the early morning of July 8, 2010.
     During the evening, Letterlough had run into Courtney Slade and
     the two were smoking PCP. The pair was walking around the
     Allison Hill area of Harrisburg with no particular destination.
     Letterlough testified that, as they approached the intersection of
     18th and Regina Streets, three men confronted them. He had
     recognized one of the men from a previous altercation over a
     woman. He said that they began arguing and he was ready to
     fight.    While this exchange was taking place, Slade was
     attempting to diffuse the confrontation. The man with whom
     Letterlough was arguing made a cellphone call when suddenly, a
     second individual came running from behind Letterlough, who
     then put his hands up to fight. The second man said something
     similar to “this ain’t that type of party,” pulled a gun and
     demanded that Letterlough “give it up,” a term he recognized
     from his experience as street terminology meaning he was being

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     robbed. Letterlough testified that the second man had pulled a
     revolver from the pocket of his basketball shorts but he “wasn’t
     giving him shit.” The second man shot at Letterlough as he was
     trying to walk away and, as Letterlough turned, he shot a second
     time hitting him in the chest. The gunshot wound entered
     through his right upper chest and exited his side. Letterlough
     continued running until he reached the residence on 17th Street
     where friends lived. The residents of the house assisted him and
     called an ambulance.

            On December 17, 2010, Letterlough identified Appellant as
     the shooter when presented with his picture in a photo array.
     Although reluctant to cooperate with police, he eventually named
     him as “T” then Tyrell. In a statement provided in an interview
     with Harrisburg Detective Christopher Krokos (“Detective
     Krokos”), on March 11, 2011, he repeated that he was sure
     [Appellant] was the shooter.       Despite his identification of
     Appellant as the shooter during two encounters with police, at
     trial, Letterlough stated that he was not sure that Letterlough
     was the shooter. He explained his inconsistency by saying that
     he had heard that [Appellant] was the shooter and recognized
     his face from Facebook. However, Letterlough said that when he
     saw Appellant in person while in jail, he realized that the shooter
     was a different height. Letterlough also changed his story in
     that he denied being pressured not to testify despite telling the
     police that he had been. Also, he said that the shooter was
     wearing a black T-shirt, rather than a white T-shirt, which he
     had reported to police.

            Lead Detective, Christopher Krokos[,] testified to the
     identification information Letterlough gave regarding the
     shooting incident. Detective Krokos described the great difficulty
     he encountered when attempting to interview Letterlough about
     the night he was shot. As the investigation progressed, the
     Detective could not find Letterlough and since he would not
     contact him voluntarily, the Commonwealth issued a grand jury
     subpoena directing Letterlough to appear. The subpoena was
     ignored, a warrant issued and Letterlough was arrested.

           Letterlough gave an initial interview on December 1, 2010,
     at which time he identified Appellant as the shooter when shown
     a photo array. Later, on March 11, 2011, while represented by
     counsel, the Commonwealth was able to finally obtain a sworn
     statement from Letterlough that provided [information]
     regarding [the] incident when he was shot.

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            Detective Krokos testified that Letterlough identified
     Appellant as the shooter within seconds of being shown the
     photo array containing his picture. He initialed the picture as did
     Detective Krokos, and the date and time were recorded along
     with the words “Tyrell shot Deangelo.” Detective Krokos was
     emphatic in his testimony that Letterlough was sure about his
     identification, otherwise they would not have relied upon the
     identification for the purpose of filing charges.

           In the sworn statement Letterlough again identified
     Appellant as the shooter. In the statement, Letterlough also
     stated that he had received a cellphone call from a restricted
     number pressuring him not to go to court in this case. Detective
     Krokos confirmed and the written statement evidenced that
     Letterlough had responded “yes” when asked, “Have you
     understood all my questions today?”

           Courtney Slade was with Deangelo Letterlough on the
     night of the shooting.     Slade testified at trial to knowing
     Letterlough as he had previously dated his sister. Slade stated
     that on the night of the shooting, he had met up with
     Letterlough on Market Street and the two of them were
     wandering and walking around high on drugs.             At the
                        th
     intersection of 18 and Regina Streets, they encountered a
     group of men, one of whom argued with Letterlough. Slade said
     he was sitting on a porch when another man came running out
     of nowhere with a gun. He described the man as wearing shorts
     and a bandana. As Letterlough began running, the man with the
     gun chased him and, when the two were out of sight, Slade
     heard gunshots; however, he did not see the shooter. Based on
     his observations, he believed that the man who had been
     chasing Letterlough was the shooter.

            Slade testified that, after he heard the shots, the shooter
     came back and put a gun to him saying “you go [sic] to give it
     up.” A scuffle ensued, two other men jumped in and ripped a
     gold chain from his neck and they all struggled for the gun that
     had fallen to the ground. Slade got his chain back and ran to a
     house at 19th and Chestnut Streets while being chased by the
     shooter. The shooter pulled a gun on him again and shot three
     times. Slade was able to run away and meet up with his ride
     back at 18th and Chestnut as the shooter ran in a different
     direction.




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            Slade did not call police about the shooting as he said he
     intended on taking care of it himself.             However, police
     interviewed him on January 12, 2011, at which time he provided
     a written, signed statement to Detective Krokos.               In his
     statement to police he said that he was with Letterlough trying
     to diffuse the argument between him and the first man they had
     encountered. Police also showed him a photo array containing
     Appellant’s picture. He identified Appellant as the shooter and
     circled his picture in the photo array.           Despite his prior
     identification of Appellant as the shooter, at trial he testified that
     he did not see the shooter in the courtroom. He explained the
     change in his story by saying that, although he had been sure
     that Appellant was the shooter, he was no longer sure about the
     identification because he had recently seen someone that looked
     like him. In the statement, he also said that he stayed in the
     same area as Letterlough during his initial confrontation, but at
     trial he said he had moved to a porch across the street.

           With respect to the changes in Slade’s story, Detective
     Krokos testified that he had clearly explained and Slade had
     understood that the purpose for presenting the photo array was
     for Slade to identify who had robbed him and shot at him the
     night he was with Letterlough. He stated that Slade identified
     Appellant within a few seconds and the identification was verified
     by his own signature and that of Detective Heffner, Krokos’
     partner at the time. The date and time were also written on the
     photo array.

Trial Court Pa.R.A.P. 1925(a) Opinion, July 18, 2014 (“1925(a) Opinion”),

pp. 4-9.

     Based on this evidence, the trial court determined:

           The evidence presented a [sic] trial established that both
     victims, Letterlough and Slade, twice identified Appellant as the
     shooter for police. Independently, they both chose Gooding
     from a photo array and represented to police that they were
     certain as to his identity. Even though Letterlough and Slade
     may have later testified that [] they had become uncertain
     regarding the identification, Detective Krokos made clear that
     both victims chose Appellant’s picture from the photo array
     within seconds of seeing it and assured him of their certainty


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     and understanding of the identification process. Any credibility
     issues are within [the] jury’s purview to resolve.

            Regarding the robbery charges, Letterlough and Slade
     unequivocally testified that, individually at different times during
     the incident, the perpetrator pointed a gun at them and stated
     “give it up,” a phrase they understood to mean they were being
     robbed. In Slade’s case, during a scuffle with the perpetrator
     and the other individuals on the scene, a gold chain was ripped
     off his neck. Then, in both instances, the perpetrator took the
     confrontation to a more violent level by shooting at both men.
     Letterlough sustained a gunshot wound to the chest.             This
     evidence sufficiently supports the jury finding that, in the course
     of committing a theft, Appellant inflicted serious bodily harm
     upon Deangelo Letterlough and placed Courtney Slade in
     imminent fear of serious bodily harm.

           The evidence also supports the conviction on the charge of
     aggravated assault. Both Letterlough and Slade testified to
     Appellant shooting Letterlough.      There was no dispute that
     Letterlough was shot in the chest near vital organs of the body.
     Appellant’s act of shooting at both individuals clearly amounts to
     the infliction of serious bodily injury under circumstances
     manifesting extreme indifference to the value of human life.

1925(a) Opinion, pp. 11-12.

     The trial court did not abuse its discretion in admitting into evidence

the witnesses’ previously signed and/or adopted statements and photo

arrays   once    the    witnesses   testified    inconsistent   with   their      previous

statements      at   trial.   Accordingly,      we   agree   with   the   trial    court’s

determination that the evidence, when viewed in the light most favorable to

the Commonwealth as verdict winner, supports Appellant’s robbery and




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aggravated assault convictions.7 Accordingly, Appellant’s sufficiency of the

evidence claim fails, and we affirm Appellant’s judgment of sentence.

       Judgment of sentence affirmed.

      Judge Mundy joins in the memorandum.

       President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/2015




____________________________________________


7
   We note that neither Appellant nor the trial court’s 1925(a) opinion
specifically address Appellant’s convictions for persons not to possess
firearms and firearms not to be possessed without a license. However,
challenges to the sufficiency of the evidence on Appellant’s firearm
convictions would fail. Appellant stipulated at trial that he was not licensed
to carry a firearm in the Commonwealth on July 8, 2010. See N.T. 12/3-
5/2012, p. 254. Based on this stipulation and the identification evidence
discussed supra, the jury found him guilty of firearms not to be possessed
without a license. Id. at 272. Further, following the jury’s verdict, Appellant
pleaded guilty to persons not to possess firearms based on a prior
aggravated assault conviction. See id. at 278-281.



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