J-S71043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    DARRYL YOUNG,

                             Appellant                No. 928 EDA 2016


           Appeal from the Judgment of Sentence February 24, 2016
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0006505-2014


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 29, 2017

        Appellant, Darryl Young, appeals from the judgment of sentence

imposed following his bench conviction of one count each of first-degree

murder, attempted murder, criminal conspiracy, recklessly endangering

another person, carrying firearms without a license, carrying firearms on

public streets in Philadelphia, and possessing an instrument of a crime, and

two counts of aggravated assault.1 Appellant challenges the sufficiency and

weight of the evidence supporting his conviction. We affirm.

        We take the following facts and procedural history from our independent

review of the certified record. This case arises from the shooting of two men,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S.A. §§ 2502(a), 901(a), 903, 2705, 6106(a)(1), 6108, 907(a), and
2702(a), respectively.
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William Harriston, who died as a result of his injuries, and Shirvin McGarrell,

who sustained eleven gunshot wounds and survived.

       On February 2, 2009, at approximately 8:00 p.m., McGarrell and his

daughter’s mother, Shaniece Thorton, were driving to McGarrell’s home after

finishing a shopping trip.         As they approached the home, Thorton saw

Appellant, whom she recognized from the neighborhood, walking down the

street with two other men, whose faces were covered by their hoods.

Appellant motioned for McGarrell to come over towards him, and McGarrell

dropped Thorton off in front of the home so that she could bring their

purchases inside.

       Meanwhile, Harriston and Darren Ricketts arrived at McGarrell’s home,

because they had plans with McGarrell for the evening.         McGarrell asked

Ricketts to move his car, and as Ricketts proceeded to do so, gunfire broke

out. Ricketts saw Appellant run away with two guns in his hands. Appellant

then stopped and ran back to search McGarrell, before again fleeing from the

scene. Thorton also heard gunshots, from what sounded like more than one

gun, and she ran towards McGarrell, who had been shot in his stomach, chest,

legs, and arms.2

____________________________________________


2 Ricketts testified that, while on the way to the hospital, McGarrell spoke
words that Ricketts interpreted as identifying Appellant as the shooter. (See
N.T. Trial, 2/22/16, at 35, 50-51, 53-54). This testimony was somewhat
inconsistent with the statement Ricketts gave to police after the shooting, and
the trial court stated that it considered Rickett’s testimony on this particular
point neutral. (See id. at 52-54; see also N.T. Trial, 2/24/16, at 43, 45).


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       On February 11, 2009, nine days after the shooting, McGarrell gave a

statement to homicide detectives identifying Appellant as one of the shooters.

On August 13, 2013, inmate Charles Bryant reported to detectives that, while

he was incarcerated with Appellant, he asked Appellant about the Harriston

shooting, because Harriston was a close friend.          Appellant confessed to

shooting Harriston and McGarrell, and explained that the bullets were intended

for McGarrell only, as retaliation for his involvement in another killing.

       Appellant proceeded to a four-day bench trial in January and February

2016. At trial, McGarrell refused to identify Appellant as his assailant, despite

his earlier statement to the contrary. (See N.T. Trial, 2/22/16, at 62, 65-66,

68; N.T. Trial, 2/24/16, at 64). Appellant testified that he was present at the

scene of the shooting, but was not involved in it, and that he fled when the

gunfire started. (See N.T. Trial, 2/24/16, at 14, 17).

       On February 24, 2016, the trial court found Appellant guilty of the

above-stated offenses. It imposed an aggregate term of incarceration of life

without the possibility of parole. The court denied Appellant’s timely post-

sentence motion on March 10, 2016. This timely appeal followed.3

       Appellant raises the following issues for our review:

       A. Was the evidence insufficient as a matter of law, to establish
       [Appellant’s] guilt beyond a reasonable doubt on all charges

____________________________________________


3 Pursuant to the trial court’s order, Appellant filed a timely concise statement
of errors complained of on appeal on April 26, 2016. The trial court judge is
no longer sitting on the bench in Philadelphia County, and the record was
forwarded to this Court without an opinion. See Pa.R.A.P. 1925.

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      because the evidence presented at trial by the sole eyewitness
      was unreliable and not credible?

      B. Was the verdict against the weight of the evidence because the
      Commonwealth’s principal witness gave contradictory and
      inconsistent testimony concerning his observations of the incident
      and his identification of [Appellant], a material element of the
      crime charged[?]

(Appellant’s Brief, at 2) (unnecessary capitalization omitted).

      In his first issue, Appellant challenges the sufficiency of the evidence

supporting all of the charges against him. (See id. at 14-27). He argues that

the Commonwealth’s evidence was not believable because it was inconsistent

and contradictory, and the testimony of Ricketts and Bryant was fabricated.

(See id.). This issue is waived and does not merit relief.

      We begin by noting,

             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
      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 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.




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Commonwealth v. Stiles, 143 A.3d 968, 981 (Pa. Super. 2016), appeal

denied, 163 A.3d 403 (Pa. 2016) (citation omitted).

      With regard to issue preservation, it is well settled:

             Pennsylvania Rule of Appellate Procedure 1925(b) provides,
      inter alia, “Issues not included in the Statement and/or not raised
      in accordance with the provisions of this paragraph (b)(4) are
      waived.” Pa.R.A.P. 1925(b)(4)(vii). In Commonwealth v.
      Garland, 63 A.3d 339 (Pa. Super. 2013), this Court found the
      appellant had waived his sufficiency of the evidence claim where
      his 1925(b) statement simply averred the evidence was legally
      insufficient to support the convictions and in doing so reasoned:

                   In order to preserve a challenge to the
            sufficiency of the evidence on appeal, an appellant’s
            Rule 1925(b) statement must state with specificity the
            element or elements upon which the appellant alleges
            that the evidence was insufficient. Such specificity is
            of particular importance in cases where, as here, the
            appellant was convicted of multiple crimes each of
            which contains numerous elements that the
            Commonwealth must prove beyond a reasonable
            doubt. Here, as is evident, [the a]ppellant . . . failed
            to specify which elements he was challenging in his
            Rule 1925(b) statement. . . . Thus, we find [his]
            sufficiency claim waived on this basis.
            Id. at 344 (citations omitted).

Id. at 982 (footnote and some quotation marks omitted) (concluding appellant

waived sufficiency claim where his concise statement failed to clearly state

any element upon which he alleged evidence was insufficient).

      Here, Appellant was convicted of eight separate offenses, each of which

contain multiple elements.      In his concise statement, he presented his

sufficiency claim as follows: “The evidence was insufficient as a matter of law

to establish [Appellant’s] guilt beyond a reasonable doubt on all charges



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because the evidence presented a [sic] trial by the sole eyewitness was

unreliable and credible [sic].” (Rule 1925(b) Statement, 4/26/16, at 1 ¶ 1).

This vague statement fails to “state with specificity the element or elements

upon which the appellant alleges that the evidence was insufficient[,]” and is

inadequate to preserve his claim. Stiles, supra at 982 (citation omitted).

Accordingly, Appellant’s first issue is waived.

      Moreover, it would not merit relief. In his brief, Appellant conflates his

sufficiency argument with his weight claim by challenging the credibility of the

witnesses’ testimony and arguing the standard applicable to weight claims,

i.e., that the verdict shocks the conscience. (See Appellant’s Brief, at 21, 23).

It is well-settled that credibility determinations “go to the weight, not the

sufficiency of the evidence.” Commonwealth v. Bowen, 55 A.3d 1254, 1262

(Pa. Super. 2012), appeal denied, 64 A.3d 630 (Pa. 2013) (citation omitted)

(stating claim that factfinder should have believed appellant’s version of

events rather than Commonwealth’s goes to weight, not sufficiency of

evidence; appellant’s sufficiency claim arguing credibility lacks merit).

Therefore, Appellant’s sufficiency claim would lack merit, even if it were not

waived. See id.

      Appellant next challenges the weight of the evidence, arguing that the

testimony is replete with inconsistencies, and that the exculpatory evidence

presented at trial demonstrates the falsity of Rickett’s account of the shooting.




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(See Appellant’s Brief, at 27-30).4 Appellant asserts that the trial court made

a fundamental error in convicting him and in denying his request for a new

trial, given the number of inconsistencies and contradictions in the witnesses’

testimony. (See id. at 29). This issue lacks merit.

             In assessing a claim that the verdict was against the weight
       of the evidence, this Court will not substitute its judgment for that
       of the factfinder, which is free to assess the credibility of
       witnesses and to believe all, part, or none of the evidence
       presented.

                    When the challenge to the weight of the
              evidence is predicated on the credibility of trial
              testimony, our review of the trial court’s decision is
              extremely limited. Generally, unless the evidence is
              so unreliable and/or contradictory as to make any
              verdict based thereon pure conjecture, these types of
              claims are not cognizable on appellate review.
              Moreover, where the trial court has ruled on the
              weight claim below, an appellate court’s role is not to
              consider the underlying question of whether the
              verdict is against the weight of the evidence. Rather,
              appellate review is limited to whether the trial court
              palpably abused its discretion in ruling on the weight
              claim.

             Further, this Court will not reverse a verdict unless it is so
       contrary to the evidence as to shock one’s sense of justice.

Commonwealth v. Fortson, 165 A.3d 10, 16 (Pa. Super. 2017) (quotation

marks and citations omitted; emphasis added).

       Here, Thorton testified that, immediately before the shooting, Appellant

motioned for McGarrell to come over to him and two other men who wore

____________________________________________


4Appellant preserved his weight claim by raising it in his post-sentence
motion. See Pa.R.Crim.P. 607(A)(3).


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hoodies covering their faces.     (See N.T. Trial, 2/22/16, at 8-9, 14-16).

Ricketts testified that Appellant was the person closest to McGarrell before the

shooting. (See id. at 26, 33). After gunshots rang out, Ricketts observed

Appellant, holding two guns, initially run from the scene. (See id. at 29-32).

Ricketts then saw Appellant return to McGarrell to search his person as he lay

in the street, before again fleeing from the area. (See id. 32-34).

      Before the trial court issued its verdict, it stated on the record that it

had listened carefully to the evidence and reviewed its notes and the exhibits.

(See N.T. Trial, 2/24/16, at 61). The court explained that it had considered

the credibility of each of the witnesses, and that it found some of the testimony

incredible, and other testimony and evidence reliable. (See id. at 62-64).

The court specifically stated that it found credible the central aspects of

Rickett’s testimony, and Bryant’s testimony that Appellant confessed to the

shooting. (See id. at 62-63). It noted that the strongest piece of evidence

in the case was McGarrell’s statement to police just nine days after the

shooting, made while he was suffering from the effects of his numerous bullet

wounds, identifying Appellant as the shooter. (See id. at 63-64). In contrast,

the court found Appellant’s testimony denying involvement in the shooting

and McGarrell’s recantation testimony from the witness stand “completely

unbelievable.” (Id. at 62; see id. at 64). After cautiously weighing all that

was before it, the court determined that Appellant was guilty beyond a

reasonable doubt. (See id. at 64-65).




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      After review of the record, we conclude that the trial court did not

palpably abuse its discretion in ruling on Appellant’s weight claim.      See

Fortson, supra at 16.     The court, as factfinder, was free to resolve any

credibility issues and conflicts in the testimony, and to credit the version of

events presented by the Commonwealth, rather than Appellant’s self-serving

account.   See id.    Therefore, Appellant’s second claim merits no relief.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/17




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