J-S18012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

KASHIF PUMPHREY,

                          Appellant                 No. 297 EDA 2014


     Appeal from the Judgment of Sentence Entered January 10, 2014
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0001892-2013


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED APRIL 30, 2015

     Appellant, Kashif Pumphrey, appeals from the judgment of sentence of

10-20 years’ incarceration imposed following his conviction for attempted

murder, aggravated assault, robbery, several violations of the Uniform

Firearms Act, and possessing an instrument of crime. Appellant claims the

Commonwealth failed to provide sufficient evidence to sustain his convictions

for attempted murder, aggravated assault, and robbery.          After careful

review, we affirm.

     The trial court summarized the facts adduced at trial as follows:

            On September 2, 2012, at approximately 1:00 a.m.,
     Philadelphia Police Officer Scher was working in full uniform, in a
     marked patrol car, when he received a radio call for gunshots
     [fired] at 53rd and Arch…. [When he arrived at the scene, Officer
     Scher] observed empty shell casings and projectiles on the Arch
     Street side of the Hypnotic Lounge, which is located at 53rd and
     Arch Streets.      The area was secured for the Southwest
     Detectives.
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           On September 2, 2012, at 1:02 a.m., Philadelphia Police
     Officer Howard was working in full uniform, in a marked patrol
     car, when he received a radio call for gunshots at 53rd and Arch
     Streets. He turned on his lights and siren[], drove southbound
     on 52nd Street and made a westbound turn onto the 5200 block
     of Race Street. As he turned the corner, he observed a black
     male holding his waistband and running eastbound on Race
     Street, towards 52nd Street.

           Officer Howard stopped and exited his vehicle, to stop the
     male. The male was crouched behind a white vehicle, at the
     corner of 52nd and Race Streets.         Officer Howard heard
     something hit the ground; it sounded like metal. The male then
     rose and began to run. Officer Howard commanded the male to
     stop, but he did not comply. Officer Howard stopped the male,
     at gunpoint, in the middle of the intersection of 52 nd and Race
     Streets.

            Officer Howard cuffed and secured the male, who he
     identified as the person sitting in the courtroom, next to counsel
     – [Appellant], Kashif Pumphrey.1 Officer Howard then returned
     to the white vehicle, where he observed a silver handgun, under
     the vehicle. The handgun was left for recovery by the Southwest
     Detectives. Officer Howard was also handed a 9mm Luger bullet
     by Officers Santiago and Dang, who transported [Appellant into
     custody].
                          ____________________
       1
         [Appellant] told Officer Howard that he lived at 225 North
       Creighton Street, which is approximately one half of a
       block from the intersection at 52nd and Race Streets.
                         ____________________
            In the early mottling hours of September 2, 2012,
     Philadelphia Police Officer Lyczak responded to a 911 call, for a
     fire alarm at the Presbyterian Hospital. When he entered the
     hospital, the security staff asked him if he was there for the
     shooting victim.2 Officer Lyczak went to question the victim,
     Tyreek Dekeyser. Mr. Dekeyser was in stable condition. He told
     Officer Lyczak what had happened and he provided a description
     of the person that shot him.         Officer Lyczak notified the
     detectives and he put the information out, over the police radio.
                         ____________________
       2
         [Appellant] was admitted to Presbyterian Hospital on
       September 2, 2012, at 1:19 a.m.

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                        ____________________
        Detective Manko, of Southwest Detectives, went to 53rd and
     Arch Streets to investigate the shooting, outside the Hypnotic
     Bar. The scene was secured by uniform patrol; nothing was
     touched. He observed five 9mm fired cartridge casings, two
     copper bullet fragments, keys and a lanyard. He subsequently
     observed and recovered a colostomy bag, around the corner,
     within the 100 block of Peach Street.      He learned of the
     colostomy bag while speaking to the victim, at Presbyterian
     Hospital.

        Detective Manko was aware of a gun being recovered and an
     arrest being made. He had [Appellant] brought to the hospital,
     for viewing by the victim.      The victim did not identify
     [Appellant]. The victim noted that during the incident, his
     colostomy bag had come off and that he had run on a side
     street. Detective Manko returned to the crime scene. He
     recovered the colostomy bag from the area of 128 Peach Street,
     approximately 100 to 200 feet from the ballistic evidence. He
     recovered the gun from underneath a white car, near 52nd and
     Race Streets. He cleared the gun, which was operable and he
     recovered four live 9mm cartridges. He recovered a fifth 9mm
     cartridge from Officer Howard.

         Officer Weitman, who is assigned to the Firearms
     Identification Unit, assisted in the analysis of the recovered
     ballistics evidence: a semiautomatic, 9mm Smith & Wesson;
     five, live Remington, 9mm Luger cartridges; five, fired
     Remington, 9mm Luger cartridge cases; and, two copper bullet
     fragments.     The bullet fragments were crushed, torn and
     twisted, indicating that the bullets had hit, or gone through, a
     hard object. Following a test firing, it was determined that the
     recovered fired cartridges, as well as the bullet fragment, were
     fired from the recovered gun.

        Tyreek Dekeyser, the victim, testified that on September 2,
     2012, at approximately 1:00 a.m., he was on 52nd Street,
     around Race or Market Street, for the purpose of going to a store
     located on 52nd Street, somewhere between Market and Vine
     Streets.3 Mr. Dekeyser testified that while he was on 52 nd
     Street, a man, who was attempting to rob him, grabbed his
     colostomy bag, which came off and as Mr. Dekeyser ran away,
     the man fired up to four gunshots, one of which struck him in
     the back of his left calf.


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                          ____________________
         3
            At the time of trial Mr. Dekeyser was-on probation, for a
         firearms charge.
                            ____________________
         Mr. Dekeyser described the aforementioned male as a tall,
      skinny guy, with a dark complexion and no facial hair and
      wearing an all[-]black hoodie. Mr. Dekeyser testified that as a
      result of the gunshot wound, he underwent surgery, with a metal
      plate and screws implanted in his left leg and, that following the
      surgery, he was immobile for a period of time and he had to
      learn to walk again.

         Mr. Dekeyser testified that he did [not] report the incident
      because he does not like cops. He testified that he talked to the
      police because they came to him. Mr. Dekeyser testified that he
      did not want to be in court and that he came to court because
      his parole officer told him he [] had to do so. He testified that
      [Appellant] was not the man who robbed him and that he had
      told this to the police when they brought [Appellant] to the
      hospital. He testified that he was not scared at the time of the
      incident because he had been shot plenty of times.

         On September 2, 2012, at approximately 1:00 a.m.,
      Philadelphia Police Officer Santiago was assigned the 1901
      wagon, which is used for prisoner transport. He responded to
      52nd and Race Streets based upon Officer Howard's arrest of
      [Appellant]. He transported [Appellant] to 55th and Pine Streets.
      Upon taking over custody from Officer Howard, Officer Santiago
      did a thorough search of [Appellant] and at that time, he
      recovered a live 9mm bullet from [Appellant]'s right pants
      pocket. Officer Santiago gave the bullet to Officer Howard, who
      was the arresting officer.

Trial Court Opinion (TCO), 9/11/14, 1-5 (internal citations omitted).

      As noted above, Appellant was arrested on September 2, 2012,

immediately following the shooting of Tyreek Dekeyser. Thereafter, he was

charged with attempted murder (18 Pa.C.S. § 901), aggravated assault, (18

Pa.C.S. § 2702), robbery (18 Pa.C.S. § 3701), three firearm offenses (18

Pa.C.S. §§ 6105, 6106, and 6108), and possessing an instrument of crime

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(18 Pa.C.S. § 907).        Appellant waived his right to a jury trial.    His bench

trial, before the Honorable Sean F. Kennedy of the Court of Common Pleas

of Philadelphia County, began on November 4, 2013. On November 5, 2013,

the trial court found Appellant guilty on all counts. On January 10, 2014,

Appellant    was     sentenced      to   an    aggregate   term   of   10-20   years’

incarceration.1     Appellant filed a timely notice of appeal on January 13,

2014, and a timely Pa.R.A.P. 1925(b) statement on July 17, 2014. The trial

court filed its Rule 1925(a) opinion, dated September 8, 2011, on

September 11, 2014.

       Appellant now presents the following question for our review:

       A. Did the Commonwealth prove beyond a reasonable doubt the
          element of each crime that Appellant was convicted of?

Appellant’s Brief, at 3.

       Despite the broad scope of Appellant’s statement of the question

involved, it is clear from the argument section of his brief that he is only

challenging the sufficiency of the evidence pertaining to his convictions for

attempted murder, aggravated assault, and robbery. Common to each claim

is his assertion that there was insufficient evidence to establish his identity

as the perpetrator of these crimes. Indeed, Appellant’s contention that the


____________________________________________


1
  Appellant received consecutive sentences of incarceration of 7½-15 years
and 2½-5 years, respectively, for attempted murder and person not to
possess a firearm (18 Pa.C.S. § 6105). He was also sentenced to concurrent
term of 2½-5 years’ incarceration for robbery.



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evidence was insufficient to support his convictions for attempted murder

and aggravated assault are exclusively identity-based claims.

      With respect to all of Appellant’s claims, we adhere to the following

standard of review:

             A claim challenging the sufficiency of the evidence is a
      question of law. 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. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim[,] the court is required to view the evidence in
      the light most favorable to the verdict winner giving the
      prosecution the benefit of all reasonable inferences to be drawn
      from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      Appellant first claims that the Commonwealth failed to prove his

identity as Dekeyser’s assailant.   Appellant maintains that 1) he did not

match the description of the assailant initially given by Dekeyser; 2)

Dekeyser refused to identify him as his assailant; and 3) the bullet lodged in

Dekeyser’s leg was never matched to the handgun abandoned by Appellant.

For these reasons, Appellant argues that the evidence was not sufficient to

establish that he was the perpetrator of the attempted murder, aggravated

assault, and robbery charges for which he was convicted.

      The Commonwealth’s evidence established that Appellant was found

discarding a handgun while in flight from the crime scene moments after the


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shooting occurred. That gun was matched to ballistics evidence found at the

scene of the shooting.      Appellant’s evasive behavior when confronted by

Officer Howard, including his attempt to discard his handgun, constituted

evidence   of    Appellant’s   consciousness      of     guilt.    These     combined

circumstances constitute sufficient evidence of Appellant’s identity as

Dekeyser’s assailant. It has long been established that the Commonwealth’s

burden to “establish every essential element of a crime beyond a reasonable

doubt … may be sustained by means of wholly circumstantial evidence.”

Commonwealth v. Stanley, 309 A.2d 408, 410 (Pa. 1973); see also

Commonwealth         v.    Chambers,        599   A.2d     630,   635      (Pa.    1991)

(“Circumstantial evidence can be as reliable and persuasive as eyewitness

testimony and may be of sufficient quantity and quality to establish guilt

beyond a reasonable doubt.”).

      Moreover,    Appellant’s   specific    arguments       regarding    the     identity

evidence   are    geared   toward   a   weight-of-the-evidence           claim,    not   a

sufficiency-of-the-evidence claim.      The Trial Court disregarded Dekeyser’s

refusal to identify Appellant as his assailant:

      Although Mr. Dekeyser testified that the Defendant was not the
      man that shot him, the Trial Court rejected this testimony. In
      reaching this determination the court took into consideration []
      the Defendant's testimony that he did not like the police, that he
      did not want to report his assailant to the police, that he did not
      want to come to court and present testimony relative to the
      incident in question and that he was not fearful of violent crime.
      Mr. Dekeyser made it clear to the court that he had no respect
      for the law or enforcement of the law.                   Moreover,
      notwithstanding Mr. Dekeyser's testimony to the contrary, the


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     Commonwealth presented overwhelming            evidence   that   the
     Defendant was indeed the shooter.

TCO, at 7.

     Additionally, while the bullet lodged in the victim’s leg was not

matched to the handgun discarded by Appellant, the other ballistic evidence

recovered from the scene of the shooting did match that weapon.

Furthermore, the ballistics evidence, as well as the other circumstantial

evidence establishing Appellant’s identity as the assailant in this case

described above, are at odds with any doubt arising from any discrepancy

with the initial identification information provided by the victim.   The trial

court was free to reject or discredit any evidence concerning the initial

description provided by the victim, particularly due to the victim’s admitted

aversion towards assisting the police in this case.        Thus, Appellant’s

complaints concern the weight of the evidence, not its sufficiency.         It is

axiomatic that “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. Valette, 613 A.2d

548, 549 (Pa. 1992) (quoting from Commonwealth v. Griscavage, 517

A.2d 1256, 1257 (Pa. 1986).

     Accordingly, we conclude that the evidence was sufficient to establish

Appellant’s identity as the shooter in this case.   Consequently, Appellant’s

sufficiency claims concerning his convictions for attempted murder and

aggravated assault are meritless.



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      Appellant offers a separate argument concerning his conviction for

robbery. He asserts that because a theft did not occur, a robbery could not

have occurred.    He argues that “the appropriate charge would have been

attempted robbery, but not robbery, given that nothing was taken.”

Appellant’s Brief at 16.

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

theft, he: (i) inflicts serious bodily injury upon another[.]”   18 Pa.C.S. §

3701(1)(i) (emphasis added).     Furthermore, “[a]n act shall be deemed ‘in

the course of committing a theft’ if it occurs in an attempt to commit theft or

in flight after the attempt or commission.” 18 Pa.C.S. § 3701(a)(2).

      In Commonwealth v. Robinson, 936 A.2d 107 (Pa. Super. 2007),

the appellant argued that his acquittal for theft precluded his conviction for

robbery, asserting “theft is a ‘predicate offense’ of robbery[.]” Id. at 108.

We held that Robinson’s claim failed because “its central premise is

incorrect; the elements of theft need not be proved to support a conviction

for robbery.” Id. The court explained:

      An acquittal of theft merely translates to a finding that no theft
      was actually completed. Thus, for a jury to acquit on theft does
      not require it to acquit on robbery; the elements of theft are not
      sufficiently intertwined with those of robbery to compel such a
      result. A conviction for robbery does not require proof of a
      completed theft, it requires only that the requisite force was
      used “in the course of committing a theft,” which is statutorily
      defined as “an attempt to commit theft or in flight after the
      attempt or commission.” 18 Pa.C.S.A. § 3701(a)(2).            The
      acquittal for theft did not preclude the jury from finding that
      Appellant used requisite force during “an attempt to commit
      theft,” in satisfaction of the robbery statute. See Id.


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Id. at 110.

      Instantly, Appellant misapprehends the relationship between theft and

robbery.      Contrary to his argument, a conviction for robbery does not

require proof of a completed theft. Robinson. Therefore, Appellant’s claim

that the evidence was insufficient to support his conviction for robbery is

also meritless.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2015




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