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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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