Com. v. Young, D. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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