J-A21022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANDRE WILLIAMS

                            Appellant                  No. 1887 EDA 2014


             Appeal from the Judgment of Sentence April 24, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011010-2012

BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                 FILED JULY 24, 2015

        Appellant, Andre Williams, appeals from the April 24, 2014 aggregate

judgment of sentence of six to 12 years’ imprisonment, imposed after a jury

found him guilty of robbery and aggravated assault.1 After careful review,

we affirm.

        The trial court summarized the relevant facts of this case as follows.

                    On March 17, 2011, at about 11:30 a.m.,
              Rasheed Durham, while walking on the street, was
              the victim of a robbery and an aggravated assault.
              Within a few hours of the robbery, Mr. Durham
              offered the following information to Detective Miles,
              which was contemporaneously chronicled in a signed
              statement. Mr. Durham named [Appellant] as the
              person who robbed and assaulted him. Mr. Durham
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 2702(a), respectively.
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          stated that, while walking, he saw [Appellant] across
          the street. [Appellant] walked toward him, pointed a
          gun at him and said, “give it up.” [Appellant] then
          insisted that Mr. Durham sit on the step and give
          him “the stuff” or he would “pop the s[**]t out of
          [him].”      After giving [Appellant] his wallet,
          [Appellant] instructed Mr. Durham to walk away—
          when Mr. Durham began to walk away, [Appellant]
          struck him twice in the back of the head. [Appellant]
          stole approximately $250. Mr. Durham claimed that
          he has a child with Demiqua Thomas, [Appellant]’s
          cousin.     Mr. Durham also stated that he knew
          [Appellant] for ten years. He saw [Appellant] only a
          month before the robbery and, according to Mr.
          Durham, “everything was okay.” Detective Miles
          specifically asked Mr. Durham if everything he told
          the [d]etective was the truth—Mr. Durham signed
          the statement and attested to its truthfulness.

                 Mr. Durham stated at trial that the suspect
          stood only a few feet away from him during the
          robbery and that he saw the suspect’s face. Mr.
          Durham identified [Appellant] in a series of
          photographs while at the police station. He signed
          [Appellant]’s     photograph      immediately   after
          identifying him. For his wound, Mr. Durham agreed,
          at trial, that he received a “pretty good whack” to
          [the] head. He received six staples and Percocet
          painkillers from the hospital for his injuries.

                 The day after the robbery, Mr. Durham
          returned to the police station and stated that he no
          longer wished to file charges against [Appellant].
          Recorded in a statement taken on this day, Mr.
          Durham claimed that he had been in jail before and
          that he “didn’t want anyone to go to jail.” He also
          maintained that he “shouldn’t have been down there
          … and this [robbery and assault] wouldn’t have
          happened.” Yet, at trial, Mr. Durham changed his
          previously stated reasons for repudiation and now
          claimed that he changed his mind on the suspect’s
          identification because he was unsure of who robbed
          him. Nowhere, however, in his original signed police
          statement, nor in the statement taken the day after,

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            did Mr. Durham state that the previously identified
            [Appellant] was not the person who robbed him. In
            Detective Miles[’] report, Mr. Durham agreed that
            [Appellant] was, in fact, the one who pointed a gun
            at him and attacked him; but, nonetheless, he
            preferred not to press charges.

                 According to the second statement taken by
            Detective Miles, Mr. Durham agreed that everything
            he told the detective the day before about the
            robbery and the assault was the truth. Since there
            were no other suspects in the robbery, and because
            Detective Miles believed that everything Mr. Durham
            had told him the day before was [] accurate, he
            never rescinded the arrest warrant for [Appellant].
            The police arrested [Appellant] a few months later.

                   At trial, Mr. Durham claimed that he was high
            on PCP at the time of the robbery. Philadelphia
            Police Officer Raymond Green responded to the radio
            call regarding the robbery. Officer Green, who has
            had many interactions with citizens on PCP, testified
            that when he met with Mr. Durham following the
            robbery, Mr. Durham did not appear intoxicated;
            rather, he appeared coherent and answered
            questions without hesitation. Officer Green agreed
            that if Mr. Durham had appeared impaired, he would
            have made a note in his report. When interviewed
            by Officer Green, Mr. Durham named [Appellant] as
            the person who robbed and assaulted him (he also
            gave a description). Mr. Durham also showed no
            signs of intoxication while he gave his report or
            reviewed photographs with Detective Miles.

Trial Court Opinion, 1/20/15, at 1-3 (citations omitted; quotation marks and

some brackets in original).

      By   criminal   information,   filed   on   September   20,   2012,   the

Commonwealth charged Appellant with the aforementioned offenses as well

as one count each of possession of firearm prohibited, firearms not to be


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carried without a license, theft by unlawful taking, receiving stolen property,

carrying firearms in public in Philadelphia, possession of an instrument of

crime, terroristic threats, simple assault, and recklessly endangering another

person.2 On March 6, 2014, a two-day jury trial commenced. On March 7,

2014, the jury found Appellant guilty of robbery and aggravated assault.

The jury found Appellant not guilty of possession of firearm prohibited,

firearms not to be carried without a license, and carrying firearms in public

in Philadelphia.    The remaining charges were nolle prossed.         On April 24,

2014, the trial court sentenced Appellant to six to 12 years’ imprisonment.3

       On April 30, 2014, Appellant filed a timely post-sentence motion,

which the trial court denied on June 5, 2014. Appellant filed a timely notice

of appeal on June 27, 2014.4

       On appeal, Appellant presents the following two issues for our review.

              1.     Did the [trial] court commit error by convicting
                     Appellant of robbery where the evidence at
                     trial was insufficient to establish that Appellant
                     threatened     serious    bodily    injury  while
                     committing a theft?

____________________________________________


2
 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 3921(a), 3925(a), 6108, 907(a),
2706(a)(1), 2701(a), and 2705, respectively.
3
  Specifically, the trial court sentenced Appellant to four to eight years’
incarceration on the robbery conviction and two to four years’ on the
aggravated assault conviction, imposed to run consecutively.
4
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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            2.     Did the [trial] court commit error by convicting
                   Appellant of aggravated assault where the
                   evidence at trial was insufficient to establish
                   that Appellant caused serious bodily injury to
                   Complainant?

Appellant’s Brief at 5.

      We address both of Appellant’s issues together as Appellant raises a

single underlying challenge to the sufficiency of the evidence that the

Commonwealth presented to convict him of robbery and aggravated assault.

In both of his issues, Appellant contends the only evidence linking Appellant

to the crimes was Durham’s statement, which Durham later recanted. Id. at

9, 11.   Further, Appellant notes that the proceeds of the robbery and the

firearm were never recovered, and the Commonwealth did not present any

other eyewitness testimony. Id.

      Our standard of review for challenges to the sufficiency of the evidence

is well settled.   “In reviewing the sufficiency of the evidence, we consider

whether the evidence presented at trial, and all reasonable inferences drawn

therefrom, viewed in a light most favorable to the Commonwealth as the

verdict winner, support the jury’s verdict beyond a reasonable doubt.”

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation

omitted), cert. denied, Patterson v. Pennsylvania, 135 S. Ct. 1400

(2015). “The Commonwealth can meet its burden by wholly circumstantial

evidence and any doubt about the defendant’s guilt is to be resolved by the

fact finder unless the evidence is so weak and inconclusive that, as a matter


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of   law,   no   probability    of   fact   can   be   drawn   from   the   combined

circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super.

2013) (en banc) (internal quotation marks and citation omitted), appeal

denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the

entire record … and all evidence actually received[.]” Id. (internal quotation

marks and citation omitted).         “[T]he 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. Orie, 88

A.3d 983, 1014 (Pa. Super. 2014) (citation omitted), appeal denied, 99 A.3d

925 (Pa. 2014). “Because evidentiary sufficiency is a question of law, our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation

omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

      In this case, Appellant was convicted of robbery and aggravated

assault. “A person is guilty of robbery if, in the course of committing a theft,

he … threatens another with or intentionally puts him in fear of immediate

serious bodily injury[.]”      18 Pa.C.S.A. § 3701(a)(1)(ii).     Further, a person

commits aggravated assault if he “attempts to cause serious bodily injury to

another, or causes such injury intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of human life.”

Id. § 2702(a)(1).




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       With regard to each of these crimes, Appellant’s sole argument is

Durham, the victim and only witness linking Appellant to the crime, recanted

his statement implicating Appellant in the robbery.5 Appellant’s Brief at 23.

Our Supreme Court, however, has held that prior inconsistent statements

“must … be considered by a reviewing court in the same manner as any

other type of validly admitted evidence when determining if sufficient

evidence exists to sustain a criminal conviction.”       Commonwealth v.

Brown, 52 A.3d 1139, 1171 (Pa. 2012). Accordingly, we view the evidence

in the light most favorable to the Commonwealth as the verdict-winner, and

we conclude the evidence is sufficient to support the convictions for robbery

and aggravated assault beyond a reasonable doubt.

       At trial, the Commonwealth presented the written, signed statement of

Durham, which he gave to police within hours of the events, when the
____________________________________________


5
   Because Appellant is challenging the credibility of Durham’s prior
inconsistent statements, it may seem like an argument going to the weight
of the evidence. See Commonwealth v. Palo, 24 A.3d 1050, 1054 (Pa.
Super. 2011) (classifying a challenge to the credibility of the
Commonwealth’s witness as an argument going to the weight, not
sufficiency, of the evidence), appeal denied, 34 A.3d 828 (Pa. 2011).
However, the recantation of a statement implicates the sufficiency of the
evidence where it renders the prior inconsistent statement “so inherently
unreliable and contradictory that it makes the jury’s choice to believe [it] an
exercise of pure conjecture[.]” Commonwealth v. Brown, 52 A.3d 1139,
1154 n.18 (Pa. 2012). In this case, Appellant asserts that Durham’s prior
inconsistent statements, which he repudiated at trial, were insufficient to
prove the crimes beyond a reasonable doubt and were the only evidence
supporting Appellant’s conviction. Therefore, we address Appellant’s claim
as a sufficiency claim.




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robbery and assault were still fresh in his mind.6         His statement identified

the culprit as Appellant, with whom Durham was previously acquainted.

Durham also selected Appellant’s photograph out of an array and signed it.

Detective Miles testified that he transcribed Durham’s statement for his

report as Durham spoke. Durham adopted this statement by signing it as

well as attesting to its truthfulness.         Appellant does not dispute that this

statement, taken alone, establishes all the elements of both offenses.

Instead, he argues that Durham’s statement is insufficient because Durham

later recanted it.

       Even though Durham recanted his statement twice, one day after he

gave it to Detective Miles, and at trial, the jury was nonetheless free to

accept Durham’s initial statement as truthful and reject his recantations.

See Orie, supra. Our Supreme Court has explained that a statement does

not become insufficient due to recantation alone.

              [T]he mere fact that [the witness] recanted a
              statement he had previously made to the police
              certainly does not render the evidence insufficient to
____________________________________________


6
   Durham’s prior inconsistent statements identifying Appellant as the
perpetrator were admissible at trial as substantive evidence because the
prior statement was a writing signed and adopted by Durham, Durham
testified at trial, and he was subject to cross-examination. See Pa.R.E.
803.1(1)(B) (providing a prior inconsistent statement is admissible if it is in
the form of a writing signed and adopted by the declarant); Brown, supra
at 1171 n.52 (noting a prior inconsistent statement is admissible if it
complies with Pennsylvania Rule of Evidence 803.1 and the witness testifies
at trial and is subject to cross-examination). Appellant does not challenge
the statement’s admissibility.



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            support Appellant’s conviction. Rather, the jury was
            free to evaluate both [the witness]’s statement to
            police as well as his testimony at trial recanting that
            statement, and free to believe all, part, or none of
            the evidence.

Commonwealth v. Hanible, 836 A.2d 36, 39 (Pa. 2003) (citation omitted),

cert. denied, Hanible v. Pennsylvania, 543 U.S. 835 (2004).

      Here, Durham’s first repudiation the day after giving the inculpatory

statement to police stated that Durham did not wish to press charges. N.T.,

3/6/14, at 43.      Significantly, his statement confirmed that Appellant

committed the robbery and assault. Id. at 54. Moreover, in his recantation

at trial, Durham stated he had smoked PCP in the morning before the

incident.   Id. at 58-59.    In rebuttal, the Commonwealth presented the

testimony of Detective Miles and Officer Green, who stated that, based on

their police experience and observations, they did not believe Appellant was

on PCP at the time he gave his initial statement on the day of the robbery.

Id. at 76, 88-89. The jury personally observed the testimony of Durham,

Detective Miles, and Officer Green at trial, and the jury was free to choose to

credit Durham’s initial statement to police as truthful and discount his

recantations.   See Brown, supra at 1169 (emphasizing that “it is the

finder-of-fact’s ability to make in-person observations of the witness at the

time of trial, as he or she explains the reasons for the prior statement, which

is most crucial to its assessment of the witness’s credibility[]”). Accordingly,

we conclude Durham’s prior inconsistent statement alone was sufficient to


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support the jury’s verdict beyond a reasonable doubt. See Hanible, supra.

Therefore, Appellant is not entitled to relief on either of his issues.   See

Diamond, supra.

     Based on the foregoing, we conclude that both of Appellant’s issues

are devoid of merit. Accordingly, we affirm the April 24, 2014 judgment of

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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