Com. v. Outerbridge, E.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ELLIOT OUTERBRIDGE, :
:
Appellant : No. 3170 EDA 2013
Appeal from the Judgment of Sentence May 8, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-00006588-2011
BEFORE: DONOHUE, WECHT and JENKINS, JJ.
MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 24, 2015
Elliot Outerbridge (“Outerbridge”) appeals from the judgment of
sentence entered by the Philadelphia County Court of Common Pleas on May
8, 2013, following his convictions of first-degree murder, possessing an
instrument of crime, and carrying a firearm in public in Philadelphia for the
shooting death of Byron Wilkins (“Wilkins”).1 As he was sixteen years old at
the time of the murder, the trial court sentenced Outerbridge to thirty-five
years to life in prison with the possibility of parole.2 On appeal, Outerbridge
challenges the sufficiency of the evidence to support a finding that he was
the shooter and the trial court’s decision to permit the testimony of Tobi
Downing of the Office of the District Attorney’s Witness Relocation Program.
We affirm.
1
18 Pa.C.S.A. §§ 2502(a), 907(a), 6108.
2
18 Pa.C.S.A. § 1102.1(a)(1).
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We begin with Outerbridge’s claim that the evidence was insufficient to
prove his identity as the perpetrator. Our scope and standard of review is as
follows:
Whether sufficient evidence exists to support the
verdict is a question of law; our standard of review is
de novo and our scope of review is plenary. We
review the evidence in the light most favorable to
the verdict winner to determine whether there is
sufficient evidence to allow the jury to find every
element of a 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 that 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.
Commonwealth v. Tejada, __ A.3d __, 2015 WL 62931, *3 (Pa. Super.
Jan. 6, 2015) (internal citations omitted).
The trial court found that the evidence, viewed in the light most
favorable to the Commonwealth, was sufficient to prove that Outerbridge
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was the person who shot and killed Wilkins, and provided the following
summary of the relevant testimony:
Kalesha Briggs (“Briggs”) gave a statement to police
and testified at trial. (N.T. 3/12/13, 98-193). Briggs
identified [Outerbridge] by his nickname, Quill. (N.T.
3/12/13 at 100). Briggs stated that she saw
[Outerbridge] in the area approximately 10-20
minutes before the shooting occurred. (N.T. 3/12/13
at 104). Briggs stated she was outside hanging
clothes when she heard gunshots. (N.T. 3/12/13,
107-108). … Briggs stated that she heard six to
seven (6-7) gunshots and saw [Outerbridge]
shooting. (N.T. 3/12/13, 107-110). While Briggs did
not contact the police herself, the police found her
and after questioning her a second time, Briggs gave
a statement. (N.T. 3/12/13 at 115).
Jamal Marshall (“Marshall”), also known as “Rusty,[”]
testified at trial. (N.T. 3/13/13, 122). At trial,
Marshall denied that he knew Wilkins and denied
being there when Wilkins was killed. (N.T. 3/13/13,
123-124). Marshall had previously given a statement
which was read into the record. (N.T. 3/13/13, 133-
153). In his statement, Marshall stated he was with
Wilkins and [Ishmael] Hardeman at the time of the
shooting. (N.T. 3/13/13 at 140). Marshall told
[h]omicide detectives that he “saw a chubby boy in a
blue hat from around the corner and he just started
shootin[g] [Wilkins].” (N.T. 3/13/13 at 140). When
asked if he knew the person he described, Marshall
stated[,] “I call him Quill[,]” [and identified
Outerbridge in a photo array]. (N.T. 3/13/13 at
141[, 145]). While Marshall denied giving detectives
this information, he stated at trial that the signature
at the bottom of the statement was in fact his
signature. (N.T. 3/13/13 at 149).
Trial Court Opinion, 5/23/14, at 6.
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Outerbridge acknowledges that the above-summarized testimony was
presented at trial, but claims it was insufficient to support a finding that he
was the person responsible for the shooting because “[Briggs’] testimony
was extremely questionable for multiple reasons” and the only other
evidence presented was Marshall’s “inconsistent out-of-court statement,”
which Outerbridge asserts cannot serve as the sole basis for a conviction.
Outerbridge’s Brief at 22-27. For the reasons that follow, his arguments fail.
First, as Outerbridge recognizes, our Supreme Court has specifically
found that an inconsistent out-of-court statement made by a witness that
recants while testifying at trial is “sufficient evidence upon which a criminal
conviction may properly rest if the finder-of-fact could, under the evidentiary
circumstances of the case, reasonably credit those statements over the
witness’s in-court recantations.” Commonwealth v. Brown, 52 A.3d 1139,
1168 (Pa. 2012). Outerbridge does not argue that the evidentiary
circumstances present in this case are such that the jury should not have
credited Marshall’s out-of-court statement to police. Rather, he “urges” us
to adopt a contrary rule to that espoused by the Brown Court.
Outerbridge’s Brief at 26. This we cannot do, as we are bound by the
decisions of our Supreme Court. See Commonwealth v. Reed, __ A.3d
__, 2014 WL 7227713, *5 (Pa. Super. Dec. 19, 2014) (“This Court is bound
by existing precedent under the doctrine of stare decisis and continues to
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follow controlling precedent as long as the decision has not been overturned
by our Supreme Court.”) (citation omitted).
Furthermore, the arguments raised by Outerbridge in support of his
sufficiency claim are challenges to the credibility and believability of the
testimony presented to support his conviction. An argument that the
testimony presented was not worthy of belief or that the jury should have
credited one witness over another present challenges to the weight, not the
sufficiency of the evidence. Commonwealth v. Gibbs, 981 A.2d 274, 281-
82 (Pa. Super. 2009).
As stated above, evidence is sufficient to support a conviction if, when
viewed in the light most favorable to the Commonwealth, the evidence
provides a basis for “the jury to find every element of a crime beyond a
reasonable doubt.” Tejada, __ A.3d __, 2015 WL 62931 at *3.
Outerbridge’s sufficiency claim is based entirely on the purported lack of
evidence presented to support a finding that he was the perpetrator of the
crimes for which he was convicted. See Outerbridge’s Brief at 21-28. Our
review of the record comports with that of the trial court. This evidence, if
believed, sufficiently establishes that Outerbridge was the gunman that shot
Wilkins. As such, he is due no relief on his sufficiency claim.
Outerbridge also challenges the trial court’s decision to allow the
testimony of Tobi Downing (“Downing”), the Victim/Witness Coordinator of
the District Attorney’s Office. Outerbridge’s Brief at 16-18. The record
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reflects that Downing testified that Briggs participated in the witness
relocation program; the date she relocated; the amount of money provided
for her relocation ($621 to a hotel and $1050 for a security deposit); and
that the money provided comes from the Attorney General’s Office without
any involvement of the Assistant District Attorney prosecuting the case.
N.T., 3/14/13, at 23-27. Outerbridge asserts that permitting this testimony
was error because “such evidence was a ploy to bolster Briggs[’] testimony,
establish that Briggs was threatened and fear[ed] for her life, and [because]
this evidence was used to substantiate her testimony[, its] admission
resulted in the presentment of unduly prejudicial evidence[.]” Outerbridge’s
Brief at 16.
At the outset, we note that counsel did not raise before the trial court
any of the arguments he makes on appeal in support of this claim. Rather,
the record reflects that when lodging an objection to Downing’s testimony,
counsel for Outerbridge argued as follows:
My argument against [Downing] testifying is, I didn’t
challenge it, I didn’t object to any of the information
regarding [Briggs’] relocation. And she
acknowledged that she was relocated by the D.A.’s
Office. So, I don’t understand why we have to have
a witness come in and testify regarding something
perceived – perceivably collateral.
N.T., 3/14/13, at 6.
“The rule is well settled that a party complaining, on appeal, of the
admission of evidence in the [c]ourt below will be confined to the specific
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objection there made.” Commonwealth v. Cousar, 928 A.2d 1025, 1041
(Pa. 2007) (citation omitted). “It is beyond cavil that if the ground upon
which an objection is based is specifically stated, all other reasons for its
exclusion are waived.” Commonwealth v. Smith, 985 A.2d 886, 904 (Pa.
2009) (citation and quotation marks omitted).
Even in the absence of waiver, this claim would not entitle Outerbridge
to relief, as our review of the record reveals that Outerbridge opened the
door to this testimony. During the Commonwealth’s direct examination of
Briggs, she testified that she moved from her home after the shooting, and
that she did so for her safety and because her daughter, who also allegedly
witnessed the shooting, “was traumatized.” N.T., 3/12/13, at 123. There
was no mention of her participation in the witness relocation program until
cross-examination by counsel for Outerbridge, during which the following
exchange occurred:
Q. How long has it been since you moved?
A. Almost about a year, year-and-a-half.
Q. How long did you live there?
A. Like almost two years.
Q. Okay. And actually – the district attorney’s
office paid to relocate you. Is that fair to say?
A. Yes.
Q. And they relocated you after you testified at the
preliminary hearing or before?
A. Before—
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Q. If it helps, the preliminary hearing was June, two
thousand—
A. I know I didn’t – I didn’t go home after that. I
went – yeah, I didn’t go home. They didn’t take me
home after that.
Q. Yes, you didn’t go home. But they didn’t relocate
you until after you testified, correct?
A. No, that’s not true.
Q. Well, that’s my question. When did they—
A. Well, I didn’t. They relocated me that day.
Q. Okay. So, the day you testified at the preliminary
hearing is the day that the D.A.’s office relocated
you, right? Is that accurate?
A. Yes.
Id. at 183-84 (emphasis added).
The questioning by counsel for Outerbridge introduced to the jury the
possibility that the Commonwealth, in essence, compensated Briggs for her
testimony. The testimony by Downing was therefore necessary to rebut the
suggestion that Briggs’ testimony was thusly colored. As this Court has
stated, where opposing counsel opens the door, otherwise inadmissible
evidence is allowed “to the extent necessary to remove any unfair prejudice
which might otherwise have ensued from the original evidence.”
Commonwealth v. Days, 784 A.2d 817, 826 (Pa. Super. 2001) (quoting
United States v. Winston, 447 F.2d 1236, 1240 (D.C.Cir. 1971)).
“[T]he admission of evidence is committed to the sound discretion of
the trial court, and a trial court’s ruling regarding the admission of evidence
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will not be disturbed on appeal unless that ruling reflects manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support to be clearly erroneous.” Commonwealth v. Pugh, 101 A.3d 820,
822 (Pa. Super. 2014) (citation omitted). As we find no abuse of discretion
in the trial court’s decision, Outerbridge’s claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2015
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