J-S08002-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
ELLIOT OUTERBRIDGE,                       :
                                          :
                   Appellant              : No. 3170 EDA 2013

             Appeal from the Judgment of Sentence May 8, 2013,
                 Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-00006588-2011

BEFORE: DONOHUE, WECHT and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED FEBRUARY 24, 2015

       Elliot Outerbridge (“Outerbridge”) appeals from the judgment of

sentence entered by the Philadelphia County Court of Common Pleas on May

8, 2013, following his convictions of first-degree murder, possessing an

instrument of crime, and carrying a firearm in public in Philadelphia for the

shooting death of Byron Wilkins (“Wilkins”).1 As he was sixteen years old at

the time of the murder, the trial court sentenced Outerbridge to thirty-five

years to life in prison with the possibility of parole.2 On appeal, Outerbridge

challenges the sufficiency of the evidence to support a finding that he was

the shooter and the trial court’s decision to permit the testimony of Tobi

Downing of the Office of the District Attorney’s Witness Relocation Program.

We affirm.

1
    18 Pa.C.S.A. §§ 2502(a), 907(a), 6108.
2
    18 Pa.C.S.A. § 1102.1(a)(1).
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      We begin with Outerbridge’s claim that the evidence was insufficient to

prove his identity as the perpetrator. Our scope and standard of review is as

follows:

            Whether sufficient evidence exists to support the
            verdict is a question of law; our standard of review is
            de novo and our scope of review is plenary. We
            review the evidence in the light most favorable to
            the verdict winner to determine whether there is
            sufficient evidence to allow the jury to find every
            element of a 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 finder 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. Tejada, __ A.3d __, 2015 WL 62931, *3 (Pa. Super.

Jan. 6, 2015) (internal citations omitted).

      The trial court found that the evidence, viewed in the light most

favorable to the Commonwealth, was sufficient to prove that Outerbridge




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was the person who shot and killed Wilkins, and provided the following

summary of the relevant testimony:

            Kalesha Briggs (“Briggs”) gave a statement to police
            and testified at trial. (N.T. 3/12/13, 98-193). Briggs
            identified [Outerbridge] by his nickname, Quill. (N.T.
            3/12/13 at 100). Briggs stated that she saw
            [Outerbridge] in the area approximately 10-20
            minutes before the shooting occurred. (N.T. 3/12/13
            at 104). Briggs stated she was outside hanging
            clothes when she heard gunshots. (N.T. 3/12/13,
            107-108). … Briggs stated that she heard six to
            seven (6-7) gunshots and saw [Outerbridge]
            shooting. (N.T. 3/12/13, 107-110). While Briggs did
            not contact the police herself, the police found her
            and after questioning her a second time, Briggs gave
            a statement. (N.T. 3/12/13 at 115).

            Jamal Marshall (“Marshall”), also known as “Rusty,[”]
            testified at trial. (N.T. 3/13/13, 122). At trial,
            Marshall denied that he knew Wilkins and denied
            being there when Wilkins was killed. (N.T. 3/13/13,
            123-124). Marshall had previously given a statement
            which was read into the record. (N.T. 3/13/13, 133-
            153). In his statement, Marshall stated he was with
            Wilkins and [Ishmael] Hardeman at the time of the
            shooting. (N.T. 3/13/13 at 140). Marshall told
            [h]omicide detectives that he “saw a chubby boy in a
            blue hat from around the corner and he just started
            shootin[g] [Wilkins].” (N.T. 3/13/13 at 140). When
            asked if he knew the person he described, Marshall
            stated[,] “I call him Quill[,]” [and identified
            Outerbridge in a photo array]. (N.T. 3/13/13 at
            141[, 145]). While Marshall denied giving detectives
            this information, he stated at trial that the signature
            at the bottom of the statement was in fact his
            signature. (N.T. 3/13/13 at 149).

Trial Court Opinion, 5/23/14, at 6.




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      Outerbridge acknowledges that the above-summarized testimony was

presented at trial, but claims it was insufficient to support a finding that he

was the person responsible for the shooting because “[Briggs’] testimony

was extremely questionable for multiple reasons” and the only other

evidence presented was Marshall’s “inconsistent out-of-court statement,”

which Outerbridge asserts cannot serve as the sole basis for a conviction.

Outerbridge’s Brief at 22-27. For the reasons that follow, his arguments fail.

      First, as Outerbridge recognizes, our Supreme Court has specifically

found that an inconsistent out-of-court statement made by a witness that

recants while testifying at trial is “sufficient evidence upon which a criminal

conviction may properly rest if the finder-of-fact could, under the evidentiary

circumstances of the case, reasonably credit those statements over the

witness’s in-court recantations.” Commonwealth v. Brown, 52 A.3d 1139,

1168 (Pa. 2012).        Outerbridge does not argue that the evidentiary

circumstances present in this case are such that the jury should not have

credited Marshall’s out-of-court statement to police. Rather, he “urges” us

to   adopt   a   contrary   rule    to   that   espoused   by   the   Brown   Court.

Outerbridge’s Brief at 26.         This we cannot do, as we are bound by the

decisions of our Supreme Court.          See Commonwealth v. Reed, __ A.3d

__, 2014 WL 7227713, *5 (Pa. Super. Dec. 19, 2014) (“This Court is bound

by existing precedent under the doctrine of stare decisis and continues to




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follow controlling precedent as long as the decision has not been overturned

by our Supreme Court.”) (citation omitted).

      Furthermore, the arguments raised by Outerbridge in support of his

sufficiency claim are challenges to the credibility and believability of the

testimony presented to support his conviction.         An argument that the

testimony presented was not worthy of belief or that the jury should have

credited one witness over another present challenges to the weight, not the

sufficiency of the evidence. Commonwealth v. Gibbs, 981 A.2d 274, 281-

82 (Pa. Super. 2009).

      As stated above, evidence is sufficient to support a conviction if, when

viewed in the light most favorable to the Commonwealth, the evidence

provides a basis for “the jury to find every element of a crime beyond a

reasonable doubt.”      Tejada, __ A.3d __, 2015 WL 62931 at *3.

Outerbridge’s sufficiency claim is based entirely on the purported lack of

evidence presented to support a finding that he was the perpetrator of the

crimes for which he was convicted. See Outerbridge’s Brief at 21-28. Our

review of the record comports with that of the trial court. This evidence, if

believed, sufficiently establishes that Outerbridge was the gunman that shot

Wilkins. As such, he is due no relief on his sufficiency claim.

      Outerbridge also challenges the trial court’s decision to allow the

testimony of Tobi Downing (“Downing”), the Victim/Witness Coordinator of

the District Attorney’s Office.   Outerbridge’s Brief at 16-18.   The record



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reflects that Downing testified that Briggs participated in the witness

relocation program; the date she relocated; the amount of money provided

for her relocation ($621 to a hotel and $1050 for a security deposit); and

that the money provided comes from the Attorney General’s Office without

any involvement of the Assistant District Attorney prosecuting the case.

N.T., 3/14/13, at 23-27. Outerbridge asserts that permitting this testimony

was error because “such evidence was a ploy to bolster Briggs[’] testimony,

establish that Briggs was threatened and fear[ed] for her life, and [because]

this evidence was used to substantiate her testimony[, its] admission

resulted in the presentment of unduly prejudicial evidence[.]” Outerbridge’s

Brief at 16.

      At the outset, we note that counsel did not raise before the trial court

any of the arguments he makes on appeal in support of this claim. Rather,

the record reflects that when lodging an objection to Downing’s testimony,

counsel for Outerbridge argued as follows:

               My argument against [Downing] testifying is, I didn’t
               challenge it, I didn’t object to any of the information
               regarding     [Briggs’]    relocation.       And   she
               acknowledged that she was relocated by the D.A.’s
               Office. So, I don’t understand why we have to have
               a witness come in and testify regarding something
               perceived – perceivably collateral.

N.T., 3/14/13, at 6.

      “The rule is well settled that a party complaining, on appeal, of the

admission of evidence in the [c]ourt below will be confined to the specific



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objection there made.” Commonwealth v. Cousar, 928 A.2d 1025, 1041

(Pa. 2007) (citation omitted).   “It is beyond cavil that if the ground upon

which an objection is based is specifically stated, all other reasons for its

exclusion are waived.” Commonwealth v. Smith, 985 A.2d 886, 904 (Pa.

2009) (citation and quotation marks omitted).

     Even in the absence of waiver, this claim would not entitle Outerbridge

to relief, as our review of the record reveals that Outerbridge opened the

door to this testimony. During the Commonwealth’s direct examination of

Briggs, she testified that she moved from her home after the shooting, and

that she did so for her safety and because her daughter, who also allegedly

witnessed the shooting, “was traumatized.” N.T., 3/12/13, at 123. There

was no mention of her participation in the witness relocation program until

cross-examination by counsel for Outerbridge, during which the following

exchange occurred:

           Q. How long has it been since you moved?

           A. Almost about a year, year-and-a-half.

           Q. How long did you live there?

           A. Like almost two years.

           Q. Okay. And actually – the district attorney’s
           office paid to relocate you. Is that fair to say?

           A. Yes.

           Q. And they relocated you after you testified at the
           preliminary hearing or before?

           A. Before—


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             Q. If it helps, the preliminary hearing was June, two
             thousand—

             A. I know I didn’t – I didn’t go home after that. I
             went – yeah, I didn’t go home. They didn’t take me
             home after that.

             Q. Yes, you didn’t go home. But they didn’t relocate
             you until after you testified, correct?

             A. No, that’s not true.

             Q. Well, that’s my question. When did they—

             A. Well, I didn’t. They relocated me that day.

             Q. Okay. So, the day you testified at the preliminary
             hearing is the day that the D.A.’s office relocated
             you, right? Is that accurate?

             A. Yes.

Id. at 183-84 (emphasis added).

        The questioning by counsel for Outerbridge introduced to the jury the

possibility that the Commonwealth, in essence, compensated Briggs for her

testimony. The testimony by Downing was therefore necessary to rebut the

suggestion that Briggs’ testimony was thusly colored.         As this Court has

stated, where opposing counsel opens the door, otherwise inadmissible

evidence is allowed “to the extent necessary to remove any unfair prejudice

which     might   otherwise   have     ensued   from   the   original   evidence.”

Commonwealth v. Days, 784 A.2d 817, 826 (Pa. Super. 2001) (quoting

United States v. Winston, 447 F.2d 1236, 1240 (D.C.Cir. 1971)).

        “[T]he admission of evidence is committed to the sound discretion of

the trial court, and a trial court’s ruling regarding the admission of evidence


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will not be disturbed on appeal unless that ruling reflects manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support to be clearly erroneous.” Commonwealth v. Pugh, 101 A.3d 820,

822 (Pa. Super. 2014) (citation omitted). As we find no abuse of discretion

in the trial court’s decision, Outerbridge’s claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/24/2015




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