J-A10040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRELL M. GOODING
Appellant No. 560 MDA 2014
Appeal from the Judgment of Sentence January 25, 2013
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003513-2011
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 14, 2015
Tyrell M. Gooding (“Appellant”) appeals from the judgment of sentence
entered following his jury trial conviction for two counts of robbery (inflict
serious bodily injury),1 and one count each of aggravated assault,2 persons
not to possess firearms,3 and firearms not to be carried without a license.4
We affirm.
On July 8, 2010, police arrested Appellant. Following a jury trial
conducted on December 3-5, 2012, a jury convicted Appellant as stated
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1
18 Pa.C.S. § 3701(a)(1)(i).
2
18 Pa.C.S. § 2702(a)(1).
3
18 Pa.C.S. § 6105(a)(1).
4
18 Pa.C.S. § 6106(a)(1).
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supra. On January 25, 2013, the trial court sentenced Appellant to 84 to
168 months’ incarceration on the first robbery conviction, 84 to 168 months’
incarceration on the second robbery conviction to be served consecutively to
the first, 84 to 168 months’ incarceration on the aggravated assault
conviction to be served concurrently with the second robbery sentence, 48
to 96 months’ incarceration on the persons not to possess firearms
conviction to run concurrently with the second robbery sentence and the
aggravated assault sentence, and 36 to 72 months’ incarceration on the
firearms not to be carried without a license to run consecutive to the second
robbery conviction.
On February 22, 2013, Appellant filed a timely notice of appeal. This
Court dismissed that appeal on May 2, 2013, for failure to file a docketing
statement in compliance with Pa.R.A.P. 3517. See Commonwealth v.
Gooding, 436 MDA 2013 (May 2, 2013, per curiam). Appellant thereafter
filed a petition pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546, seeking reinstatement of his direct appeal rights
based on counsel’s failure to file the docketing statement with this Court as
ordered. The PCRA court granted Appellant’s petition on March 3, 2014.
Appellant then filed a timely notice of appeal on March 28, 2014, and filed a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal on June 10,
2014. The trial court issued its Pa.R.A.P. 1925(a) opinion on July 18, 2014.
Appellant raises the following issue for review:
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A. Did the trial court commit an error of law in sentencing the
appellant because [the] evidence adduced at trial and all
reasonable inferences therefrom were insufficient as a matter of
law to support any finding of guilt?
Appellant’s Brief, p. 5 (all capitals removed). Specifically, Appellant asserts
that, because the Commonwealth’s witnesses (1) testified they were under
the influence of narcotics at the time of the incident, and (2) recanted their
prior identifications of Appellant at trial, the Commonwealth put forth
insufficient evidence to convict Appellant.5 See Appellant’s Brief, pp. 13-14.
This claim challenges the sufficiency of the evidence.6
When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
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5
The only legal authority Appellant cites is the law pertaining to the
standard of review for sufficiency of the evidence claims. See Appellant’s
Brief, pp. 12-14. Additionally, Appellant includes no citations to the record
to support his argument. Id. Ordinarily, such citation deficiencies may form
grounds for waiver of claims. See Pa.R.A.P. 2119. However, because
Appellant’s claim is basic and readily ascertainable, we will examine the
claim on its merits.
6
Although, as the Commonwealth argues, this claim appears to challenge
the weight of the evidence, not the sufficiency of the evidence, this Court
has determined where witnesses recant their testimony, such a claim goes
to the sufficiency of the evidence. See Commonwealth v. Bibbs, 970 A.2d
440 (Pa.Super.2009); Commonwealth v. Sherman, 488 A.2d 348, 349
(Pa.Super.1985).
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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
[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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011).
Witness recantation occurs not infrequently in the prosecution of
criminal matters. “It is well settled that it is within the trial court’s discretion
to permit a party to impeach its own witness with prior inconsistent
statements.” Commonwealth v. Grimes, 648 A.2d 538, 543
(Pa.Super.1994). To properly invoke such discretion, the trial court must
consider the following factors:
(1) whether the testimony was unexpected;
(2) whether the testimony was contradictory;
(3) whether the testimony was harmful to the party calling the
witness and beneficial to the opposing side; and
(4) whether the scope of cross-examination was excessive.
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Grimes, 648 A.2d at 543-44 (citing Commonwealth v. Waller, 444 A.2d
653, 656 (Pa.1982)). Further, when faced with a witness who recants, our
Supreme Court has ruled that the Commonwealth may introduce as
substantive evidence, “only those prior inconsistent statements [of the
witness] ‘that are demonstrably reliable and trustworthy[.]’” Id. at 544.
Permitted “reliable and trustworthy” prior inconsistent statements include:
(1) contemporaneous, verbatim, electronic, audiotaped or videotaped
recordings of a witness’s statements, (2) statements given under oath at a
formal legal proceeding, or (3) statements reduced to a writing signed and
adopted by the declarant. Bibbs, 970 A.2d at 448 (citing Commonwealth
v. Wilson, 707 A.2d 1114, 1118 (Pa.1998)).
The trial court summarized the evidence introduced at the trial of this
matter as follows:
At 5:30 a.m., on July 8, 2010, Officer Nathan Ishman (“Officer
Ishman”) of the Harrisburg Bureau of Police (“HBP”) was
dispatched to respond to a shots fired call at 18th and Regina
Streets in the Allison Hill section of Harrisburg City. The
dispatch also reported that a victim was in a residence at 40
North 17th Street, one block west of the reported shooting
location. Officer Ishman arrived at the 17th Street residence
along with Officer Rudy of the HBP where they observed a
chaotic scene through the open door with the victim seated on a
chair and bleeding from the chest. In an attempt to stop the
bleeding, one of the people present was putting pressure on the
gunshot wound which was located at right chest above the
breast. Officer Ishman was able to obtain the victim’s name,
Deangelo Letterlough (“Letterlough”), date of birth and a few
facts about the shooting incident. The information provided by
Letterlough included a description of the individuals involved in
the shooting. Letterlough was transported by ambulance to the
hospital.
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Officers Ishman and Rudy proceeded to 18th and Regina
Streets on foot to investigate. At the crime scene, by a house
on the northwest corner, the officers found a cellphone charger,
black bandana and sunglasses. They also observed droplets of
blood on the sidewalk alongside a small local store at 17th and
Regina Streets across from the residence where Letterlough was
found. After the crimes scene was secured, forensic
investigator, Officer Christopher Silvio (“Officer Silvio”) gathered
and processed the evidence police had recovered. In addition to
gathering the items found by the responding officers, he found a
white washcloth and took a blood sample from the droplets
observed on the sidewalk. Officer Silvio later went to the
medical center where Mr. Letterlough had been transported for
the purpose of photographing his injuries and collecting his
clothes as evidence. While at the hospital, he observed and
photographed the gunshot wound to Letterlough’s right chest.
The washcloth and bandana were later tested for DNA
evidence by Alex Glessner of the Pennsylvania State Police
forensics lab. A DNA sample was collected from Appellant for
comparison of the evidence tested. No interpretable results
were obtained from the washcloth. However, testing of the
bandana resulted in the identification of at least three DNA
contributors from which Appellant could not be excluded. As
Appellant’s profile matched some of the recovered DNA, Mr.
Glessner concluded that he was a contributor; however, there
was not a single majority contributor identified.
At trial, Mr. Letterlough testified to his version of the
events that took place in the early morning of July 8, 2010.
During the evening, Letterlough had run into Courtney Slade and
the two were smoking PCP. The pair was walking around the
Allison Hill area of Harrisburg with no particular destination.
Letterlough testified that, as they approached the intersection of
18th and Regina Streets, three men confronted them. He had
recognized one of the men from a previous altercation over a
woman. He said that they began arguing and he was ready to
fight. While this exchange was taking place, Slade was
attempting to diffuse the confrontation. The man with whom
Letterlough was arguing made a cellphone call when suddenly, a
second individual came running from behind Letterlough, who
then put his hands up to fight. The second man said something
similar to “this ain’t that type of party,” pulled a gun and
demanded that Letterlough “give it up,” a term he recognized
from his experience as street terminology meaning he was being
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robbed. Letterlough testified that the second man had pulled a
revolver from the pocket of his basketball shorts but he “wasn’t
giving him shit.” The second man shot at Letterlough as he was
trying to walk away and, as Letterlough turned, he shot a second
time hitting him in the chest. The gunshot wound entered
through his right upper chest and exited his side. Letterlough
continued running until he reached the residence on 17th Street
where friends lived. The residents of the house assisted him and
called an ambulance.
On December 17, 2010, Letterlough identified Appellant as
the shooter when presented with his picture in a photo array.
Although reluctant to cooperate with police, he eventually named
him as “T” then Tyrell. In a statement provided in an interview
with Harrisburg Detective Christopher Krokos (“Detective
Krokos”), on March 11, 2011, he repeated that he was sure
[Appellant] was the shooter. Despite his identification of
Appellant as the shooter during two encounters with police, at
trial, Letterlough stated that he was not sure that Letterlough
was the shooter. He explained his inconsistency by saying that
he had heard that [Appellant] was the shooter and recognized
his face from Facebook. However, Letterlough said that when he
saw Appellant in person while in jail, he realized that the shooter
was a different height. Letterlough also changed his story in
that he denied being pressured not to testify despite telling the
police that he had been. Also, he said that the shooter was
wearing a black T-shirt, rather than a white T-shirt, which he
had reported to police.
Lead Detective, Christopher Krokos[,] testified to the
identification information Letterlough gave regarding the
shooting incident. Detective Krokos described the great difficulty
he encountered when attempting to interview Letterlough about
the night he was shot. As the investigation progressed, the
Detective could not find Letterlough and since he would not
contact him voluntarily, the Commonwealth issued a grand jury
subpoena directing Letterlough to appear. The subpoena was
ignored, a warrant issued and Letterlough was arrested.
Letterlough gave an initial interview on December 1, 2010,
at which time he identified Appellant as the shooter when shown
a photo array. Later, on March 11, 2011, while represented by
counsel, the Commonwealth was able to finally obtain a sworn
statement from Letterlough that provided [information]
regarding [the] incident when he was shot.
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Detective Krokos testified that Letterlough identified
Appellant as the shooter within seconds of being shown the
photo array containing his picture. He initialed the picture as did
Detective Krokos, and the date and time were recorded along
with the words “Tyrell shot Deangelo.” Detective Krokos was
emphatic in his testimony that Letterlough was sure about his
identification, otherwise they would not have relied upon the
identification for the purpose of filing charges.
In the sworn statement Letterlough again identified
Appellant as the shooter. In the statement, Letterlough also
stated that he had received a cellphone call from a restricted
number pressuring him not to go to court in this case. Detective
Krokos confirmed and the written statement evidenced that
Letterlough had responded “yes” when asked, “Have you
understood all my questions today?”
Courtney Slade was with Deangelo Letterlough on the
night of the shooting. Slade testified at trial to knowing
Letterlough as he had previously dated his sister. Slade stated
that on the night of the shooting, he had met up with
Letterlough on Market Street and the two of them were
wandering and walking around high on drugs. At the
th
intersection of 18 and Regina Streets, they encountered a
group of men, one of whom argued with Letterlough. Slade said
he was sitting on a porch when another man came running out
of nowhere with a gun. He described the man as wearing shorts
and a bandana. As Letterlough began running, the man with the
gun chased him and, when the two were out of sight, Slade
heard gunshots; however, he did not see the shooter. Based on
his observations, he believed that the man who had been
chasing Letterlough was the shooter.
Slade testified that, after he heard the shots, the shooter
came back and put a gun to him saying “you go [sic] to give it
up.” A scuffle ensued, two other men jumped in and ripped a
gold chain from his neck and they all struggled for the gun that
had fallen to the ground. Slade got his chain back and ran to a
house at 19th and Chestnut Streets while being chased by the
shooter. The shooter pulled a gun on him again and shot three
times. Slade was able to run away and meet up with his ride
back at 18th and Chestnut as the shooter ran in a different
direction.
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Slade did not call police about the shooting as he said he
intended on taking care of it himself. However, police
interviewed him on January 12, 2011, at which time he provided
a written, signed statement to Detective Krokos. In his
statement to police he said that he was with Letterlough trying
to diffuse the argument between him and the first man they had
encountered. Police also showed him a photo array containing
Appellant’s picture. He identified Appellant as the shooter and
circled his picture in the photo array. Despite his prior
identification of Appellant as the shooter, at trial he testified that
he did not see the shooter in the courtroom. He explained the
change in his story by saying that, although he had been sure
that Appellant was the shooter, he was no longer sure about the
identification because he had recently seen someone that looked
like him. In the statement, he also said that he stayed in the
same area as Letterlough during his initial confrontation, but at
trial he said he had moved to a porch across the street.
With respect to the changes in Slade’s story, Detective
Krokos testified that he had clearly explained and Slade had
understood that the purpose for presenting the photo array was
for Slade to identify who had robbed him and shot at him the
night he was with Letterlough. He stated that Slade identified
Appellant within a few seconds and the identification was verified
by his own signature and that of Detective Heffner, Krokos’
partner at the time. The date and time were also written on the
photo array.
Trial Court Pa.R.A.P. 1925(a) Opinion, July 18, 2014 (“1925(a) Opinion”),
pp. 4-9.
Based on this evidence, the trial court determined:
The evidence presented a [sic] trial established that both
victims, Letterlough and Slade, twice identified Appellant as the
shooter for police. Independently, they both chose Gooding
from a photo array and represented to police that they were
certain as to his identity. Even though Letterlough and Slade
may have later testified that [] they had become uncertain
regarding the identification, Detective Krokos made clear that
both victims chose Appellant’s picture from the photo array
within seconds of seeing it and assured him of their certainty
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and understanding of the identification process. Any credibility
issues are within [the] jury’s purview to resolve.
Regarding the robbery charges, Letterlough and Slade
unequivocally testified that, individually at different times during
the incident, the perpetrator pointed a gun at them and stated
“give it up,” a phrase they understood to mean they were being
robbed. In Slade’s case, during a scuffle with the perpetrator
and the other individuals on the scene, a gold chain was ripped
off his neck. Then, in both instances, the perpetrator took the
confrontation to a more violent level by shooting at both men.
Letterlough sustained a gunshot wound to the chest. This
evidence sufficiently supports the jury finding that, in the course
of committing a theft, Appellant inflicted serious bodily harm
upon Deangelo Letterlough and placed Courtney Slade in
imminent fear of serious bodily harm.
The evidence also supports the conviction on the charge of
aggravated assault. Both Letterlough and Slade testified to
Appellant shooting Letterlough. There was no dispute that
Letterlough was shot in the chest near vital organs of the body.
Appellant’s act of shooting at both individuals clearly amounts to
the infliction of serious bodily injury under circumstances
manifesting extreme indifference to the value of human life.
1925(a) Opinion, pp. 11-12.
The trial court did not abuse its discretion in admitting into evidence
the witnesses’ previously signed and/or adopted statements and photo
arrays once the witnesses testified inconsistent with their previous
statements at trial. Accordingly, we agree with the trial court’s
determination that the evidence, when viewed in the light most favorable to
the Commonwealth as verdict winner, supports Appellant’s robbery and
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aggravated assault convictions.7 Accordingly, Appellant’s sufficiency of the
evidence claim fails, and we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judge Mundy joins in the memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/2015
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7
We note that neither Appellant nor the trial court’s 1925(a) opinion
specifically address Appellant’s convictions for persons not to possess
firearms and firearms not to be possessed without a license. However,
challenges to the sufficiency of the evidence on Appellant’s firearm
convictions would fail. Appellant stipulated at trial that he was not licensed
to carry a firearm in the Commonwealth on July 8, 2010. See N.T. 12/3-
5/2012, p. 254. Based on this stipulation and the identification evidence
discussed supra, the jury found him guilty of firearms not to be possessed
without a license. Id. at 272. Further, following the jury’s verdict, Appellant
pleaded guilty to persons not to possess firearms based on a prior
aggravated assault conviction. See id. at 278-281.
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Com. v. Gooding, T.
Combined Opinion