February 21, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
TYRONE DEON MOULTRIE Appellant
Appeal from the Judgment of Sentence of December 11, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at Nos.: CP-02-CR-0011862-2011, CP-02-CR-0012305-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J. [*]
Tyrone Deon Moultrie ("Appellant") appeals his December 11, 2012 judgment of sentence. Appellant contends that the evidence adduced at trial by the Commonwealth was insufficient to prove that he possessed a firearm. We affirm.
The learned trial court aptly recited the facts and procedural history of this case as follows:
On September 5, 2011, at approximately 9:30 PM, Jennifer Yokel heard a "pop, pop, pop" sound coming from the direction of her home's front window. She went to the window and saw [Appellant] on the sidewalk, with his arm in the air, shooting a gun. Ms. Yokel recognized the shooter as her next-door neighbor who had moved in about a month or so before this incident. She asked him what he was doing and she called 911. [Appellant] walked away[,] sideswiping his foot to clear spent shell casings from the sidewalk.
When police arrived at the scene, they went to [Appellant's] residence. There the police recovered a gun from [Appellant's] girlfriend's purse. The police also recovered casings from the street. After [Appellant] was Mirandized, he stated [to Officer Viskovicz] that he and his girlfriend had been robbed as they sat on their front porch, and that [Appellant] went after the robber and shot at him as he fled.
A video recording of the incident was obtained by the police and introduced into evidence at trial. Witness testimony indicated that the video showed [Appellant] shooting the firearm. The firearm seized was submitted to the crime lab and was found to be in good operating condition. The crime lab further determined that it was the gun that fired the casings recovered from the street. Finally, evidence was presented that [Appellant] was not licensed by the Commonwealth of Pennsylvania to carry a firearm, and that [Appellant] had been convicted of robbery in 1999.
Trial Court Opinion ("T.C.O."), 5/16/2013, at 2-3.
Appellant was charged with persons not to possess a firearm, 18 Pa.C.S. § 6105(a)(1); carrying a concealed firearm without a license, 18 Pa.C.S. § 6106; and tampering with or fabricating physical evidence, 18 Pa.C.S. § 4910(1). On September 20, 2012, the trial court granted Appellant's motion to sever the charge of persons not to possess a firearm, so that it could proceed non-jury. Appellant continued with a jury trial on the remaining charges, with the persons not to possess non-jury trial occurring simultaneously. On the same day, the jury returned a verdict of guilty on the charge of carrying a concealed firearm without a license, and not guilty on the charge of tampering with evidence. Also that day, the trial court convicted Appellant on the charge of persons not to possess a firearm. On December 11, 2012, Appellant was sentenced to serve a term of five to ten years' incarceration. See Order of Sentence, 12/11/2012.
On January 9, 2013, Appellant filed a timely notice of appeal. On January 16, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 18, 2013, Appellant filed a Rule 1925(b) statement.
Appellant raises the following issue for our consideration:
Was the evidence insufficient as a matter of law to prove the crimes of person not to possess a firearm and carrying a firearm without a license beyond a reasonable doubt insofar as the Commonwealth's key witness could not possibly have identified [Appellant] as the person she saw in the street holding a gun; it was not possible to tell from the videotape who, if anyone, fired a gun; and it could be inferred from testimony that [Appellant] made incriminating statements that he was covering for his girlfriend, who was the one who was robbed and had the gun in her purse?
Appellant's Brief at 6.
A claim challenging the sufficiency of the evidence presents a question of law. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Our standard of review is well-established:
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 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. Estepp, 17 A.3d 939, 943-44 (Pa. Super. 2011) (citing Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)).
Appellant claims that the evidence adduced by the Commonwealth at trial was insufficient to find him guilty of the following offenses:
§ 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms
(a) Offense defined.-
(1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence . . . shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.
(b) Enumerated offenses.-The following offenses shall apply to subsection (a):
Section 3701 (relating to robbery).
18 Pa.C.S. § 6105.
§ 6106. Firearms not to be carried without a license.
(a) Offense defined.--
(1) [A]ny person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.
18 Pa.C.S. § 6106. Appellant contends that the Commonwealth's evidence was insufficient to identify him as the shooter, or to establish that he was in possession of the firearm on the night in question.
To begin, Appellant challenges the ability of the Commonwealth's witness, Jennifer Yokel, to positively identify him. He argues that Yokel had very few prior interactions with Appellant and that it was dark on the night the incident took place. Therefore, Appellant asserts that her visual identification of Appellant is suspect. Appellant also challenges the veracity of the testimony of Officer Ronald Viskovicz, maintaining that Appellant never admitted to possessing a firearm or, in the alternative, that Appellant was lying to protect his girlfriend. Finally, Appellant also contests the quality of the videotape used to identify him as the shooter, claiming that it is impossible to identify the shooter, or to confirm that the person shown is holding a gun. Appellant's brief at 12.
We note, at the outset, that Appellant's own discussion of sufficiency undermines the legal basis of his claim: "[Appellant] acknowledges that there was testimony presented at trial to support the fact that the Commonwealth's witness, [Yokel] identified him as the person she saw holding a gun. Accordingly . . . this Court must presume the truth of that testimony." Appellant's brief at 17. We agree with Appellant's recitation of our deferential standard of review, but we nonethless address each of his evidentiary issues in turn.
We begin our analysis with Yokel's testimony. Despite Appellant's attempts to discredit Yokel's ability to identify him on the night in question, any ambiguities between their respective testimonies were resolved by the fact-finder, whose task it is to render factual and credibility determinations. See Estepp, 17 A.3d at 939. In this case, both the jury and judge, sitting as fact-finders, appear to have credited the testimony of Yokel and discredited Appellant's testimony. Appellant makes only a bald assertion that the fact-finders should have credited Appellant's testimony over Yokel's testimony, which, by itself, does not demonstrate that the Commonwealth's evidence "[was] so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances." Id.; see also Brooks, 7 A.3d at 856-57. Rather, Yokel's testimony, when viewed in the light most favorable to the Commonwealth, clearly establishes that Appellant was the perpetrator of the crimes, beyond a reasonable doubt.
Appellant also challenges Officer Viskovicz's testimony that Appellant admitted to leaving his porch and firing his gun. Appellant denies making these statements to Officer Viskovicz and alleges that, even if he did, he was merely lying to cover for his girlfriend. As above, this allegedly conflicting testimony was well within the fact-finders' ambit to resolve. Appellant offers nothing more than a bald assertion that Officer Viskovicz's testimony was not credible and that Appellant's denial was more believable. Again, we are bound by credibility determinations which, in this case, establish that Appellant admitted to firing a gun. This evidence, in conjunction with Yokel's testimony was more than sufficient to prove the crimes of persons not to possess a firearm, and carrying a concealed firearm without a license.
Lastly, Appellant claims that the surveillance video was of too poor a quality to allow the jury to identify him as the shooter. The surveillance video depicted an individual step onto the street, then fire two shots from a firearm as another individual fled. One of the police officers present at the scene identified Appellant as the shooter in the video due to his distinctive gait as he left his front porch. Notes of Testimony ("N.T."), 9/20/2012, at 71-74. Even assuming, arguendo, that the quality of the video was poor, the Commonwealth may sustain its burden of proof by purely circumstantial evidence provided that the fact-finder is convinced beyond a reasonable doubt that Appellant was the shooter. See Estepp, 17 A.3d at 939; Brooks, 7 A.3d at 856-57. Here, the video and testimony identifying Appellant in the video provided ample circumstantial evidence for a reasonable jury to conclude that Appellant fired the gun.
Any one of the pieces of evidence discussed above, alone, was sufficient for the Commonwealth to sustain its burden of proof beyond a reasonable doubt. Mere disagreement with the credibility determinations made by the fact-finders and bald allegations of discrepancies in witness testimony cannot sustain an argument for insufficiency of the evidence. Consequently, we conclude that there was sufficient evidence to allow the fact-finders to conclude that Appellant was the person in possession of a firearm on September 5, 2011. Appellant's challenge to the sufficiency of the evidence fails.
Judgment of sentence affirmed.