J-S52037-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
       v.                                 :
                                          :
DARRYL YOUNG,                             :
                                          :
              Appellant                   :   No. 1715 EDA 2015

            Appeal from the Judgment of Sentence January 21, 2015,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-0005703-2011
                             CP-51-CR-0005704-2011
                             CP-51-CR-0015810-2010

BEFORE:       FORD ELLIOTT, P.J.E., STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED SEPTEMBER 20, 2016

      Darryl Young (Appellant) appeals from the judgment of sentence

entered following his conviction for multiple counts of first-degree murder,

attempted homicide, aggravated assault, violations of the Uniform Firearms

Act, and possession of an instrument of crime. We affirm.

      The charges in this matter stem from Appellant’s arrest for three

shooting incidents which occurred in Philadelphia on September 24, October

26, and October 27, 2009. The trial court aptly set forth the relevant facts of

those cases as follows.

            On September 24, 2009, around 2:39 p.m. on the 1300
      block of North 56th Street in Philadelphia, Kevin Hubbard Jr. and
      Allen Thompson were walking to the corner deli to pick up lunch
      when they noticed [Appellant] approaching them on a bicycle.
      Hubbard and Thompson retreated as [Appellant] approached,
      with Hubbard beginning to enter his aunt’s home and Thompson
      going to the door of a friend who lived next door to Hubbard’s
      aunt. Before either Hubbard or Thompson could enter the

*Retired Senior Judge assigned to the Superior Court.
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     homes, [Appellant] reached into his pants and withdrew a black
     firearm, pointing it at both Hubbard and Thompson. [Appellant]
     then began shooting at Hubbard before turning to shoot at
     Thompson, firing multiple times. [Appellant] then fled the scene
     on his bike. Also present at the scene of the shooting was Ernest
     Howard, Jr.

           Responding police officers found Hubbard lying on the
     porch and immediately placed him in the back of a police car,
     rushing him to the Hospital of the University of Pennsylvania
     (“HUP”). Hubbard was pronounced dead at HUP at 3:29 p.m.
     Hubbard died from a gunshot wound to the chest, where the
     bullet penetrated his left lung, pulmonary artery, heart,
     diaphragm, stomach, and left kidney. Thompson was struck by
     a bullet in the interior of his right bicep. Thompson was also
     transported to HUP, where he underwent surgery. As a result of
     the gunshot wound, Thompson suffered from sustained nerve
     damage.

           Police recovered six fired cartridge cases in front of 1337
     North 56th Street. Two bullets were also recovered from the
     1339 North 56th Street home: one from the floor inside of the
     house and one from the doorjamb. Subsequent analysis revealed
     that all of the fired cartridge cases were fired from the same
     weapon.

           On October 26, 2009, at approximately 6:15 p.m., David
     Bowen, Christopher Bolger, and Derrick Bolton were walking on
     Master Street between 56th Street and 57th Street in
     Philadelphia, returning from school. Howard was also present at
     the time. Bolger noticed [Appellant], with two other males,
     walking across the street, wearing hoodies. Bowen noticed
     [Appellant] approach from behind, pull a firearm from his pants,
     and begin to shoot.

           Bowen was shot once in his left arm and once in his left
     leg. Bolger was shot in the stomach, back, and chest. Bolton was
     shot in his left calf. All victims were transported to HUP for
     medical treatment. While still receiving treatment in the hospital,
     Bolger identified [Appellant] as the individual who had shot him.
     At the time that [Appellant] shot Bolger and Bolton, he was
     attempting to shoot Ernest Howard Jr., who was present at the



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     first shooting and had told Bolger that [Appellant] “was going to
     kill [Howard] because [he] knew too much.”

           Police recovered a nine millimeter semiautomatic handgun
     at the scene of the shooting, as well as fourteen fired cartridge
     cases. Subsequent analysis of the cartridge cases revealed that
     five were fired from the firearm recovered at the scene, nine
     were fired from an unrecovered nine millimeter firearm, and one
     was fired from an unrecovered .40 caliber firearm.

           On October 27, 2009, the day after the second shooting,
     at approximately 7:00 p.m. Howard and Ernest Winston were
     driving … near 57th Street and Master Street when Howard
     noticed a friend walking on the street and pulled over to talk to
     him. Howard exited the vehicle in order to talk to the person at
     the front of the car while Winston remained inside. Winston
     exited the vehicle in order to get a light from Howard and then
     returned to the vehicle. Upon returning to the vehicle, Winston
     heard multiple gunshots coming from behind the vehicle and
     ducked for cover. Winston then looked behind him and saw
     [Appellant] with a silver gun in his hand. Howard ran across the
     street towards a bar and collapsed on the street. Winston ran
     after Howard and, after noticing blood on the street, went to a
     house on Frazier Street to try to get help.

           Responding police officers located Howard face down on
     the ground. Police immediately placed Howard in a patrol car and
     rushed him to HUP. Howard was alive at the time police arrived,
     but was pronounced dead at 8:58. Howard suffered a
     penetrating gunshot wound to his right torso, which pierced his
     liver, stomach, intestines, pancreas, vena cava, spleen,
     diaphragm, and left lung. The bullet was recovered as part of
     medical intervention and provided to police.

          Winston later told police that Howard was friends with
     Thompson, who was shot by [Appellant] in the first shooting,
     and that [Appellant] wanted to kill Howard because Howard
     knew about [Appellant] shooting Thompson.

          Subsequent analysis of a bullet hole in Howard’s car
     showed that the damage was consistent with the car having
     been struck from a shooter standing in the alley behind the



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     vehicle. Bullet fragments were recovered from the interior of the
     car. Police also recovered five .45 caliber fired cartridge cases
     from the alley behind the vehicle. One .45 caliber bullet was
     recovered from Howard and a .45 caliber bullet fragment was
     recovered from the scene. Subsequent analysis of the fired
     cartridge cases revealed that all were fired from the same
     firearm.

Trial Court Opinion, 9/29/2015, at 2-6 (citations and footnotes omitted).

     The three cases were consolidated for a capital trial and, on January

16, 2015, Appellant was found guilty of the aforementioned charges.         On

January 21, following a penalty phase hearing, the jury returned a verdict of

life imprisonment on both first-degree murder convictions.     That day, the

court imposed a sentence of two consecutive terms of life imprisonment,

followed by a term of 50 to 100 years’ incarceration on the remaining

counts. Appellant’s timely-filed post-sentence motions were denied on May

18, 2015. This appeal followed. Both Appellant and the trial court complied

with the mandates of Pa.R.A.P. 1925.

     On appeal, Appellant asks us to consider the following questions.

     I. Was the evidence insufficient to convict [Appellant] of all the
     offenses because there was no evidence showing beyond a
     reasonable doubt that [Appellant] was the perpetrator of the
     offenses?

     II. Did the trial court err in granting the Commonwealth[’s]
     motion to consolidate the three separate cases because these
     cases were not inextricably intertwined and because each case
     happened on different dates and over one month separated the
     first incident from the second and third incident with different
     witnesses and different victims?




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Appellant’s Brief at 2.

      We address Appellant’s first argument mindful of the following

standard of review.

      [O]ur standard of review of sufficiency claims requires that we
      evaluate the record in the light most favorable to the verdict
      winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. Evidence will be
      deemed sufficient to support the verdict when it establishes each
      material element of the crime charged and the commission
      thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. 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 of law, no probability of fact
      can be drawn from the combined circumstances.

Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)

(internal citations and quotation marks omitted). The Commonwealth may

sustain its burden by means of wholly circumstantial evidence, and we must

evaluate the entire trial record and consider all evidence received against the

defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).

      Instantly, Appellant argues that the Commonwealth failed to establish

his identity as the shooter in all three incidents beyond a reasonable doubt.

Appellant’s Brief at 6. Specifically, Appellant claims that the lack of physical

and circumstantial evidence that he was the perpetrator, coupled with the

fact that each of the alleged eyewitnesses later recanted their identifications

of Appellant, renders insufficient the evidence to support his convictions. Id.

The trial court addressed this claim as follows.



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           Regarding the first shooting, Allen Thompson, the victim
     who survived [Appellant’s] first attack, provided a statement to
     police five days following the shooting. Thompson informed
     police that he witnessed [Appellant] ride up the street on his
     bike, which prompted him and Hubbard to stop what they were
     doing and return to the presumed safety of their houses.
     Thompson further informed police that he witnessed [Appellant]
     reach into his pants, pull out a black gun, and begin shooting
     Hubbard. After shooting Hubbard, Thompson told police that
     [Appellant] then began shooting at him. Thompson further
     described [Appellant] to police as “black, light-skinned. He is
     about 5’6”, 5’7”, short dude. He is middle size, low cut hair,” and
     that [Appellant] was wearing all black. Thompson informed
     police that he and [Appellant] had gone to school together and
     that he knew [Appellant] “from around the way.” When police
     presented Thompson with a photo array, Thompson identified
     [Appellant].

            Jamal Briggs corroborated Thompson’s statement when
     questioned by the police on October 2, 2009. Briggs testified and
     informed police that he heard shots fired from around the corner
     on Frazier Street and went to investigate. In his statement,
     Briggs informed police that he had seen [Appellant], on a
     bicycle, “come off of 56th Street and make a right … down
     towards 55th” immediately following the shooting. Like
     Thompson, when police provided a photo array to Briggs, Briggs
     identified [Appellant] as the individual he saw fleeing the scene
     on a bike.

            Regarding the second shooting, which occurred on October
     26, 2009, Christopher Bolger provided a statement to police
     while still receiving treatment in the hospital. Bolger informed
     police that he saw [Appellant], together with two or three other
     unidentified males, passing by him shortly before the shooting.
     In this initial interview, Bolger identified [Appellant] as the
     individual who shot him and identified [Appellant] in a photo
     array. In a second interview with police, occurring on July 31,
     2010, Bolger again identified [Appellant] as one of the
     individuals who shot him, and further identified one of the other
     shooters. Bolger informed police that Howard, the victim of the
     third shooting, had been present during the second shooting and
     that Howard was the real target of the attack. Bolger stated that



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     [Appellant] had previously told Howard he would kill him
     because he “knew too much.” Bolger also told police that
     Howard had stated that he was present when Thompson and
     Hubbard had been shot in the first shooting. Bolger’s testimony
     from the preliminary hearing in this matter was also admitted at
     trial. At the preliminary hearing, Bolger acknowledged that he
     had informed police that he had been shot by [Appellant], but
     attempted to recant his identification.

            In addition, David Bowen provided a statement to police
     four days following the second shooting. Bowen informed police
     that he saw [Appellant] approach from behind him, wearing all
     black, pull out a black gun from his pants, and start shooting.
     Bowen stated that he knew [Appellant] from around the
     neighborhood and described [Appellant] as a “black male like
     19-years-old, 5’8” … tall, caramel complexion, like 140 pounds.
     His hair is cut close ... [and] on his neck he has a tattoo of a
     skull with crossbones going through it.” While Bowen declined to
     identify [Appellant] during a separate, earlier interview while still
     in the hospital, Bowen identified [Appellant] in a photo array as
     part of his written statement to police, stating that [Appellant]
     had shot at him. Bowen further stated that he had not previously
     identified [Appellant] because he was afraid of him “because he
     will start shooting at you for no reason.”

            Regarding the third shooting of October 27, 2009, Ernest
     Winston provided a statement to police less than a day after the
     shooting. In this statement, Winston informed police that, after
     hearing gunshots from behind him, he turned and saw
     [Appellant] with a silver automatic handgun in his hands.
     Winston described [Appellant] as slightly shorter than 5’10”,
     wearing a green hoodie and dark pants, and with a skull tattoo
     on the front of his neck. While Winston recanted his identification
     testimony at trial, Winston had acknowledged at the preliminary
     hearing that he remembered telling the police that he had seen
     [Appellant] with a gun at the third shooting. Winston further
     identified [Appellant] in a photo array when interviewed by
     police the day after the shooting. Winston also informed police
     that [Appellant] wanted to kill Howard because Howard knew
     about [Appellant] shooting Thompson a month earlier. Finally,
     Winston also told Bolger, a victim from the second shooting, that
     [Appellant] had shot Howard.



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             It is true that at trial, the above witnesses recanted the
      majority of their statements to the police. However, their signed
      statements were admitted at trial through the testimony of their
      respective interviewing detectives. These statements were
      admissible for their truth as prior inconsistent statements that
      were signed and adopted by the declarants. See Pa.R.E.
      803.1(1)(b). It is well-established that where a witness at trial
      recants a statement he made to police, the fact-finder is “free to
      evaluate both the [witness’s] statement to police as well as his
      testimony at trial recanting that statement, and [is] free to
      believe all, part, or none of the evidence.” Commonwealth v.
      Hanible, 836 A.2d 36, 40 (Pa. 2003). Such recantations are
      “notoriously unreliable,” Commonwealth v. Johnson, 966 A.2d
      523, 541 (Pa. 2009), and “the mere fact that [the only
      eyewitness] recanted a statement he had previously made to the
      police certainly does not render the evidence insufficient to
      support [the] conviction.” Hanible, 836 A.2d at 40. Moreover, a
      conviction may rest entirely on prior inconsistent statements of
      witnesses who testify at trial, and such 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, the above identification evidence was more
      than sufficient to establish that [Appellant] was the perpetrator
      of the murders and shootings here at issue. As [Appellant] was
      also identified as the individual in possession of the firearm at
      each of the three shootings, the evidence was also sufficient to
      establish his identity for purposes of the firearm related charges.

Trial Court Opinion, 9/29/2015, at 7-11 (citations to notes of testimony and

footnotes omitted).

      We agree with the well-reasoned analysis of the trial court. It is well

established that “the evidence at trial need not preclude every possibility of

innocence, and the fact-finder is free to resolve any doubts regarding a




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defendant’s guilt 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.” Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa.

Super. 2006). Instantly, even accounting for the recantations of the

aforementioned witnesses, the evidence presented herein was more than

sufficient to permit the jury to conclude that Appellant possessed a firearm

and perpetrated all three shootings. Accordingly, Appellant’s claim fails.

      In his second claim, Appellant argues that the trial court erred in

granting the Commonwealth’s motion to consolidate the three cases because

“each case happened on different dates and over one month separated the

first incident from the second and third incident with different witnesses and

different victims.” Appellant’s Brief at 7-9. Further, Appellant claims he was

prejudiced by the consolidation. Id. at 9.

      As this Court has explained,

      [w]hether or not separate indictments should be consolidated for
      trial is within the sole discretion of the trial court and such
      discretion will be reversed only for a manifest abuse of discretion
      or prejudice and clear injustice to the defendant.

            Pennsylvania Rule of Criminal Procedure 582 provides that
      joinder of offenses charged in separate indictments or
      informations is permitted when the evidence of each of the
      offenses would be admissible in a separate trial for the other and
      is capable of separation by the jury so that there is no danger of
      confusion. Evidence of other criminal behavior is not admissible
      to show a defendant’s propensity to commit crimes. However,
      such evidence may be admitted for other purposes, such as
      proof of motive, opportunity, intent, preparation, plan,



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      knowledge, identity or absence of mistake or accident so long as
      the probative value of the evidence outweighs its prejudicial
      effect.

Commonwealth v. Smith, 47 A.3d 862, 867 (Pa. Super. 2012) (citations

omitted). The establishment of a common scheme, plan, or design “requires

only that there are shared similarities in the details of each crime.”

Commonwealth v. Newman, 598 A.2d 275, 278 (Pa. 1991).

      The trial court set forth its reasons for granting the Commonwealth’s

motion to consolidate as follows.

             Here, it was clearly established at a hearing on the
      Commonwealth’s motion to consolidate that the three cases
      were properly joined. While each case concerned criminal acts
      that occurred on separate days, they were all inextricably
      intertwined. First, the shootings all occurred within a very
      narrow geographical area and were centered on a dispute
      between two warring drug gangs. Therefore, the three separate
      days upon which [Appellant] went on his murderous rampage
      were all part of a common scheme and plan to defeat competing
      drug dealers. All of the shootings were therefore admissible in
      trials of the other shootings to show motive, intent, and a
      common scheme and plan.

             In addition, Howard, the murder victim in the third day of
      shootings, was a witness to the killing of Hubbard and the
      wounding of Thompson on the first day of shootings. Moreover,
      the evidence showed that on the second day of shootings, when
      [Appellant] shot Bowen, Bolger and Bolton, he was actually
      attempting to kill Howard to eliminate him as a witness to the
      first day of shootings. On the third day of shootings, [Appellant]
      succeeded in eliminating Howard. Accordingly, the first shootings
      were essential to establish the motive and intent leading to the
      second and third shootings, just as the second shootings were
      essential to establish the motive and intent for the third.
      Similarly, at a trial of the first shootings, the second and third
      shootings would have been admissible as highly probative



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      evidence of [Appellant’s] consciousness of guilt in attempting,
      and succeeding, in silencing an eyewitness to that first shooting.
      All of the evidence was necessary to tell the complete story to
      the factfinder. Therefore, “evidence of each of the offenses
      would be admissible in a separate trial for the other” as required
      by Rule 582.

            Additionally, each shooting was easily separable from the
      others by both date and victims, preventing any possible
      confusion by the jury. [E]ach shooting would have been
      admissible in a separate trial for each event, and [] each
      shooting was easily distinguishable by date and victim[.]

Trial Court Opinion, 9/29/2015, at 14-15.

      Our review of the record supports the trial court’s determinations. The

evidence presented at trial established that all three shootings were gang-

related and interconnected such that each was admissible at the trial of the

others to show a common plan or scheme. Smith, supra.               Moreover,

contrary to Appellant’s argument, the details of each case were substantially

similar, despite the fact that they occurred over the course of a month.

      Moreover, we reject Appellant’s argument that he was prejudiced by

the consolidation. Appellant’s Brief at 9.

      The “prejudice” of which [the joinder rule] speaks is not simply
      prejudice in the sense that appellant will be linked to the crimes
      for which he is being prosecuted, for that sort of prejudice is
      ostensibly the purpose of all Commonwealth evidence. The
      prejudice of which [the joinder rule] speaks is, rather, that which
      would occur if the evidence tended to convict appellant only by
      showing his propensity to commit crimes, or because the jury
      was incapable of separating the evidence or could not avoid
      cumulating the evidence.




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Newman, 598 A.2d at 279 (citation omitted).         Such prejudice was not

present in the instant matter: the three incidents were distinct enough to

permit the jury to separate the evidence. Moreover, based on the volume of

evidence supporting his conviction, Appellant has failed to establish that he

was convicted due to the jury’s belief that he had the propensity to commit

crimes. Accordingly, we find that the trial court did not abuse its discretion

in consolidating Appellant’s cases.

      Judgment of sentence affirmed. Jurisdiction relinquished.

      Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/20/2016




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