Com. v. Leamy, D. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DONOVAN A. LEAMY, : No. 2637 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, July 23, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0008236-2013
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2017
Donovan A. Leamy appeals from the judgment of sentence of July 23,
2015, following his conviction of attempted murder, recklessly endangering
another person (“REAP”), and a violation of the Uniform Firearms Act
(“VUFA”).1 We affirm.
The trial court has summarized the facts of this case as follows:
At trial, Tyree Gibbons testified that on the
afternoon of April 18, 2013, he got into a fist fight
with Appellant outside a corner store at the corner of
Vernon Road and Phil-Elena Street in the Mt. Airy
section of Philadelphia after Appellant complained
that Gibbons had been driving too fast. Gibbons
recognized Appellant, who has a large tattoo on
his [sic] the middle of his forehead and by the sides
of his eyes, as a member of a group called
“Splash Life,” and told police that he often saw
Appellant and other members of the group on the
1
18 Pa.C.S.A. §§ 901(a), 2705, & 6106(a)(1), respectively.
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corner by his house. A videotape of the fight showed
a very angry Appellant approach Gibbons and
showed fists swinging with Gibbons getting the
better of Appellant. Gibbons also told police that he
heard Appellant tell another male named Drevon[2]
to go get the gun. However, Drevon declined,
saying that Gibbons was “cool.” Although Appellant
claimed to have gotten over the fight once it ended,
the evidence showed that Appellant was still
tweeting about the fight on Twitter at 9:42 p.m. and
9:44 p.m. that night. One of the tweets contained
numerous icons of fists and guns.
Approximately thirty minutes before the
shooting, a white Impala pulled up next to Gibbons’
cousin Deonte Barr. Appellant’s friend Drevon
hopped out of the vehicle and asked Deonte who was
at his house. Deonte responded that only his mother
was at home. Deonte could see the handle of a gun
in Drevon’s waistband. Aware that a fight had
occurred earlier that day, Deonte rushed home to
warn his family.
At approximately 9:00 p.m. that night,
Gibbons picked up another cousin, Justin Tift, who
had just come to Philadelphia from Charlotte,
North Carolina to visit his grandmother who was in
the hospital. The two men stopped at a liquor store
and then at Checkers before going to their cousin
Deonte’s house at 7900 Fayette Street. At Checkers,
Mr. Tift observed Gibbons speaking to someone in a
white Impala. After they arrived at 7900 Fayette
Street at approximately 10:00 p.m., Mr. Tift went
outside with Gibbons upon hearing that someone had
tried to grab Deonte. Once outside, Mr. Tift
observed a white Impala that appeared empty
suddenly pull off. About a minute later, Mr. Tift
heard Gibbons yell “run.” Gibbons made it safely
back into the house while Mr. Tift was shot ten times
as he ran, falling in front of the steps to the
residence. Mr. Tift underwent several surgeries for
his multiple gunshot wounds and was still
2
Drevon Williams, appellant’s co-defendant at trial.
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undergoing rehabilitation at the time of trial. The
shooting left his right leg paralyzed. He testified that
he is in constant pain in the right foot and knee.
Although Mr. Tift did not see who shot him, Gibbons
told police that two males walked out of the
driveway and started shooting. He described one of
the shooters as tall, thin build, dark skin and tattoos
on his face. Both shooters wore masks. Gibbons
identified the male with the facial tattoos as
Appellant, the same male with whom he had
engaged in a fist fight earlier that day.
Appellant denied participation in the shooting
and presented several alibi witnesses in his defense.
One of [the] witnesses, Joan Seech, stated she has
known Appellant for many years from the
neighborhood and that he was always at her home
visiting with her children. Ms. Seech testified that
she was in her bedroom when she heard the
gunshots. She further testified that she immediately
went to her children’s bedroom, she did not see
Appellant there and that her children told her
Appellant had gone to see what had happened.
Ms. Seech later changed her testimony to say that
Appellant was still in her home at the time.
Sabrina Gray, Ms. Seech’s daughter, claimed
that Appellant was at her home all day, that he
never left, and that he was with her in her room
when the gunshots occurred. However, Ms. Gray
was unable to explain how Appellant could have been
at her home all day when a video showed him in a
fight outside a store in the afternoon.
Gerald Scott, who was present at the fist fight
earlier in the day, testified that he was in
Sabrina Gray’s room with Appellant when they heard
gunshots, that he left with Appellant to see what had
happened, and was arrested. Scott refused to sign
his statement to police.
Trial court opinion, 5/23/16 at 2-4 (citations to the transcript omitted;
punctuation corrected).
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On April 18, 2013, [appellant] was arrested
and charged with [the above-mentioned offenses].
On April 7, 2015, Appellant waived a jury and
proceeded to a trial before the Court. The trial was
held over three days [on] April 7, 2015, April 13,
2015, and April 16, 2015. On April 16, 2015 the
Court found Appellant guilty of Attempted Murder,
REAP and VUFA § 6106.[3] On July 23, 2015, the
Court sentenced Appellant to an aggregate term of
12 to 27 years[’] imprisonment. Appellant filed a
Notice of Appeal on August 23, 2015.[4] On
August 26, 2015, this Court ordered Appellant
pursuant to Pa.R.A.P. 1925(b) to file with the Court a
Concise Statement of Matters Complained of on
Appeal. A timely Pa.R.A.P. 1925(b) Statement of
Matters Complained of on Appeal was filed by
Appellant on November 12, 2015.[5]
Id. at 1-2.
Appellant has raised the following issue for this court’s review: “Was
the evidence insufficient to support [appellant]’s convictions because the
verdict of guilty on all counts was based on a guess and pure speculation?”
(Appellant’s brief at 4.)
Appellant argues that the evidence was insufficient to prove his
identity as one of the shooters because even though he was arrested shortly
after the incident, no firearm was recovered and no gunshot residue was
3
Drevon Williams was acquitted.
4
Appellant did not file post-sentence motions.
5
Appellant received three extensions of time in which to file his
Rule 1925(b) statement.
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found on appellant’s person. (Id. at 11.)6 Appellant further argues that
Gibbons’ identification, based at least partially on appellant’s facial tattoos,
was inherently unreliable because the perpetrators wore masks. (Id. at
11-12.) According to appellant, the trial court would have to infer that
Gibbons had “x-ray vision” in order to rely on his identification. (Id. at 12.)
Appellant contends that motive alone, i.e., the fist fight that occurred earlier
that day, is insufficient to sustain a conviction. (Id. at 11.)
The standard we apply in reviewing the sufficiency of
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 crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
our judgment for that of 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.
6
Investigators did recover fourteen fired cartridge casings (“FCCs”) from the
scene, eight .9mm Luger FCCs and six .380 caliber FCCs. (Notes of
testimony, 4/7/15 at 57.)
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Commonwealth v. Johnson, 833 A.2d 260, 262-263 (Pa.Super. 2003),
quoting Commonwealth v. Lambert, 795 A.2d 1010, 1014-1015
(Pa.Super. 2002) (internal citations and quotation marks omitted).
Gibbons gave a statement to police in which he identified appellant as
one of the gunmen. (Notes of testimony, 4/13/15 at 20.)7 Gibbons
recognized him from the fight earlier that day at the corner store. (Id. at
18.) Gibbons stated that appellant and his group called “Splash Life” were
always hanging around on the corner. (Id. at 19-20.) Gibbons described
appellant as a tall, dark-skinned man with a big tattoo in the middle of his
forehead and around the sides of his eyes. (Id. at 19-21.) At the time of
the shooting, appellant was wearing the same clothing that he had on during
the fight. (Id. at 21.) Gibbons told police that although they were wearing
masks, he could see appellant’s facial tattoo. (Id. at 20.)
7
Gibbons was a recalcitrant witness and refused to identify appellant at trial.
In fact, Gibbons claimed he could not remember the shooting or giving a
statement to police. (Id. at 9-10.) Therefore, Gibbons’ statement to police
incriminating appellant was admissible at trial as substantive evidence.
Commonwealth v. Lively, 610 A.2d 7, 9-10 (Pa. 1992); P.R.E. 803.1 (A
writing signed and adopted by the declarant is deemed to have been given
under reliable circumstances and is not excluded by the hearsay rule if it is
inconsistent with the declarant’s testimony at trial and the declarant is
subject to cross-examination). Here, Gibbons’ statement was reduced to
writing and signed and adopted by the witness. (Notes of testimony,
4/13/15 at 49-51; Commonwealth’s Exhibit 7.) Gibbons also picked
appellant’s photo out of a photo array. (Id. at 41, 51, 56; Commonwealth’s
Exhibit 10.) See also Commonwealth v. Ly, 599 A.2d 613, 617 (Pa.
1991) (“where witnesses are in court and subject to cross-examination, a
police officer may testify concerning pre-trial identification by the witness”
(citation omitted)).
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Gibbons’ statement, which the trial court found to be reliable,
combined with other circumstantial evidence including motive, was clearly
sufficient to sustain the verdict. Gibbons was familiar with appellant and his
distinctive facial tattoo. As the trial court observed, “because the tattoo in
the middle of Appellant’s forehead was quite large and continued down the
side of his eyes, the tattoo would have been visible around the eye cutouts
despite the mask.” (Trial court opinion, 5/23/16 at 5.) Gibbons accurately
described appellant’s height, build, and skin tone. (Id.) Moreover, “[A]ny
uncertainty in an eyewitness’s identification of a defendant is a question of
the weight of the evidence, not its sufficiency.” Commonwealth v. Cain,
906 A.2d 1242, 1245 (Pa.Super. 2006), appeal denied, 916 A.2d 1101 (Pa.
2007), citing Commonwealth v. Minnis, 458 A.2d 231, 233 (Pa.Super.
1983).
As described above, there was additional evidence linking appellant to
the crime, including that he had lost a fight to Gibbons earlier in the day and
had asked Drevon for a gun. Appellant sent out angry tweets about the
fist fight just minutes prior to the shooting. The trial court also found
appellant’s alibi witnesses to be not credible. The trial court believed
Gibbons’ prior statement to police which was its prerogative. (Trial court
opinion, 5/23/16 at 6.) Appellant’s sufficiency claim fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
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