J-S67009-17

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

CALVIN BROWN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3195 EDA 2015

Appeal from the Judgment of Sentence October 7, 2015

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009777-2013

BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 02, 2017

Appellant Calvin Brown appeals from the judgment of sentence entered 

in the Court of Common Pleas of Philadelphia County following his conviction 

at a bench trial on the charges of first-degree murder, conspiracy, carrying 

firearms on public streets or public property in Philadelphia, firearms not to 

be carried without a license, and possessing an instrument of crime.

1

 

Appellant contends (1) the trial court erred in denying his motion for judgment 

of acquittal since the evidence was insufficient to sustain his conviction on all 

offenses as the Commonwealth failed to prove beyond a reasonable doubt that 

he was the perpetrator of the offenses, and (2) the trial court erred in failing 

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1 18 Pa.C.S.A. §§ 2502, 903, 6108, 6106, and 907, respectively. 
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to suppress Darnell Williams’ in-court identification of Appellant as the 

perpetrator of the offenses. After a careful review, we affirm. 

The relevant facts and procedural history are as follows: Appellant was 

arrested in connection with the shooting death of Shafiq Scott (“the victim”), 

and represented by counsel, he proceeded to a bench trial before the 

Honorable Steven R. Geroff. 

At trial, Philadelphia Police Officer Joseph Campbell testified that, on 

November 16, 2012, he was on foot patrol with his partner, Police Officer 

Shawn Carroll, when, at approximately 11:45 a.m., they observed a vehicle 

“run a stop sign.” N.T., 8/13/15, at 18. The officers motioned for the vehicle 

to stop, and after the vehicle complied, the officers requested back-up to 

assist them. Id. at 18-19. Officers Craig West and Mawson,2 who were also 

on foot patrol, responded to assist. Id. at 19. 

Near the conclusion of the traffic stop, the officers “heard about two to 

three shots in the distance, in the area of 60th and Springfield [Streets].” Id. 

As the four officers began to walk to the area, they “heard multiple shots, 

continuous shots; three, four, five, six, seven.” Id. At this point, the officers 

began running towards the area, and upon arrival at 60th and Springfield 

Streets, they discovered the victim, who was unresponsive and lying on the 

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2 Officer Mawson’s first name has not been provided to this Court. 
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ground with a silver handgun between his legs. Id. at 20. They also observed 

several bullet holes in a nearby parked black Pontiac. Id. 

Officer Campbell called for medical assistance, reported on the radio 

that there had been a shooting, and remained with the victim. Id. Meanwhile, 

the other officers began circulating in the area, looking for suspects and 

witnesses. Id. at 21. The victim was pronounced dead at 12:15 p.m., and 

the firearm was seized by the crime scene unit shortly thereafter. Id. Officer 

Campbell confirmed that he obtained from the other officers the name, 

address, and phone number of a witness to the shooting, Linda Chappelle. Id.

at 20-21, 23, 25. 

Officer West testified that, upon arrival at the scene of the shooting, Ms. 

Chappelle apprised him of potential suspects and gave a description of two 

black males, one of whom was wearing a black hoodie and the other of whom

was wearing a gray hoodie. Acting on this information, as well as witnesses 

pointing towards the breezeway between Springfield and Belmar Streets, 

Officers West and Mawson began searching for the suspects. N.T., 10/17/15, 

at 6-12. At 59th Street, a patrol car picked up the officers, and they surveyed 

the immediate area. Id. During the search, Officer West again observed Ms. 

Chappelle on the street, and at this time, took down her name and contact 

information. Id. at 11. Ms. Chappelle told Officer West that she could identify 

the shooters. Id. at 11-12. She also elaborated that she knew the suspects 

and the victim. Id. at 17. 
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Ms. Chappelle admitted at trial that she did not want to testify, she was 

in custody awaiting a violation of probation hearing in Montgomery County, 

and she had an open criminal case in Philadelphia County. Id. at 21-23. She 

admitted the Commonwealth had made no promises or deals in exchange for 

her testimony. Id. at 24-25. 

Before the prosecutor could properly pose a question about the date in 

question, Ms. Chappelle interjected, “I don’t remember. I was bandaged up. 

I was high. I don’t remember.” Id. at 25. She indicated that she was trying 

to change her life and she did not want to get in more trouble. Id. at 26. 

When asked about events occurring on November 16, 2012, Ms. Chappelle 

claimed that she did not remember where she was on November 16, 2012, 

and that she didn’t “even remember 2012.” Id. at 26-29. She denied knowing 

the victim, but admitted that she knew Appellant and his family, who “looked 

out” for her. Id. at 27. Ms. Chappelle indicated that, by asking her to testify, 

the court was “going to get [her] fucked up. This is some real vicious shit 

right here.” Id. at 28. 

Ms. Chappelle denied giving a statement to homicide detectives on 

December 3, 2012, regarding the shooting. Id. at 31. However, when shown 

the statement, she confirmed that the signature at the bottom of each page 

of the statement, as well as her signature on a photograph of Appellant and a 

statement of adoption of attestation, was her signature; however, she 

indicated she was “forced” to affix her signature thereon. Id. at 30-32.
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The statement, which was reviewed at trial, revealed that Ms. Chappelle 

knew the victim for about ten years, she used to live with Appellant’s father, 

and she used to purchase drugs from Appellant when he would visit. Id. at 

32, 42. In the statement, Ms. Chappelle confirmed she was at the scene of 

the shooting and described the events as follows: 

I was coming from the store and I was walking from Chester 

Avenue to Springfield Avenue from the deli. I saw one guy I know 

as Cal standing in front of the barbershop.

***

[The victim] was standing on my side of the street. All of [a] 

sudden, I heard gunshots and I ducked on the side of the gate on 

Trinity Street. I then saw Cal and another male that had a blue 

mask on his face and hoodie running. I looked over and saw Cal

and the other boy shooting at [the victim]. I saw them shoot 

about two or three times.

***

I saw them shoot about two or three shots at [the victim]. I saw 

them put their guns in the waist of their pants and they ran down 

the driveway of 60th and Springfield. [The victim] was running in 

front of a car. The crowd start[ed] gathering around and the 

police came right away.

Id. at 33-34. 

Moreover, in the statement, Ms. Chappelle described “Cal” as “[a] black 

male, light skin, wavy black hair, little beard with sideburns, about five-footsix, thin build. He was wearing a black hood[ie] and black pants.” Id. at 34-

35. She also noted in the statement that Cal’s gun “looked like an 

automatic[,]” she did not know why Cal shot the victim, and she heard no 

conversation between the men. Id. at 35, 37, 40. Additionally, she noted in 

the statement that, at the time of the shooting, she was standing at a driveway 
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at Trinity Street, “right before you get to 60th and Springfield [Streets]...where 

the shooting happened.” Id. at 41. 

Although Ms. Chappelle denied at trial that she had signed her name on 

a photograph of Appellant at the homicide station and wrote the name “Cal” 

at the top, she admitted at trial that the photograph in question was a 

photograph of Appellant. Id. at 43-44. Ms. Chappelle testified she did not 

want to cooperate with the Commonwealth because she is “no fucking snitch.” 

Id. at 46. 

Detective Derrick Venson testified that he, along with Detective Kevin 

Judge, took a verbatim statement from Ms. Chappelle on December 3, 2012, 

at approximately 6:40 p.m. Id. at 70-71. Detective Venson confirmed that 

Ms. Chappelle signed the bottom of each page of the statement, as well as a 

photograph of Appellant and a statement of adoption of attestation. Id. at 

72. He indicated that she did not appear to be under the influence of drugs 

or alcohol at the time of the statement, she gave the statement of her own 

free will, and the statement constituted “her words” verbatim. Id. at 73-74. 

Detective Venson confirmed that Ms. Chappelle identified the person referred 

to as “Cal” in her statement as Appellant. Id. at 79. He noted that she 

identified Appellant’s photograph in his presence and she reviewed each page 

of her statement without making any corrections thereto. Id. at 79-80. 

Darnell Williams testified that she was reluctant to testify; however, she 

admitted that she was inside of a residence near the scene of the shooting on 
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the date and time in question. Id. at 91-92. She testified that she heard 

gunshots, and when she looked out of a window, she observed a man holding 

a gun in his hand. Id. at 93. The man was shooting the gun down toward 

the ground where another man was lying on the ground by a car. Id. She 

further testified that another man, whom she identified at trial as Appellant, 

was calling for the man, who was standing, to “go before the cops come.” Id.

at 94. The man who was standing walked towards Appellant, and Appellant 

then “walked up and shot the victim.” Id. at 95. 

Ms. Williams confirmed that she saw Appellant’s gun and it was a 

handgun. Id. She also confirmed that Appellant shot his gun until it “was 

empty.” Id. Thereafter, both men ran down the alley between Belmar and 

Springfield Streets, while the victim remained lying in the street. Id. at 96-

98. Ms. Williams confirmed that, during the shooting, she called 911, 

describing what she was witnessing. Id. at 100. 

Ms. Williams testified that she gave a statement to the homicide unit, 

and she confirmed that, from a police photographic array, she identified 

Appellant as the second man she saw shoot the victim. Id. at 101-03. She 

also testified that, on March 24, 2014, she attended a line-up and indicated 

that she believed “number two” was involved in the shooting; however, she 

also testified that, after the line-up, she informed ADA Kirk Handrich that she 

may have made a misidentification. Id. at 106-08. Ms. Williams testified that 

she did not know either the victim or Appellant. Id. at 109. 
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Detective Judge confirmed that he interviewed Ms. Williams on 

December 14, 2012, and Ms. Williams informed him that she had seen one of 

the shooters. N.T., 8/19/15, at 5-6. Accordingly, Detective Judge prepared 

a photographic array, and he confirmed that Ms. Williams pointed to 

Appellant’s photograph, indicating he was one of the shooters. Id. at 7. 

Police Officer Thomas D’Alesio testified that on November 18, 2012, at 

approximately 12:50 p.m., he was on patrol when he observed Derrell Hill 

standing outside of an abandoned rooming house. Id. at 145-46. Officer 

D’Alesio detected a bulge in the front of Mr. Hill’s sweatshirt, and believing the 

bulge to be that of a gun, Officer D’Alesio exited his vehicle with the intent of 

approaching Mr. Hill. Id. at 145. Mr. Hill ran into the abandoned rooming 

house with Officer D’Alesio chasing him. Id. Two other males, Clinton 

Robinson and Robert Womack, were sitting on a couch in the abandoned 

building. Id. Mr. Hill discarded a handgun, which Officer D’Alesio seized, and 

the officer later discovered that the firearm had been used in the murder of 

the victim less than forty-eight hours earlier. Id. at 144-45, 149, 153, 160-

61. Moreover, Officer D’Alesio seized a handgun from a box spring in the 

abandoned building, and it was later determined that this handgun was also 

used in the murder of the victim. Id. at 149, 153, 161. 

Detective James Dunlap testified that he examined call-detail records

for Clinton Robinson for the time period between November 5, 2012, to 

November 20, 2012. N.T., 8/18/15, at 14-15. The records revealed phone 
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calls between Mr. Robinson and Appellant, including calls on the day of the 

murder, as well as two days thereafter. Id. at 13-14, 17-21. 

At the conclusion of the testimony, the trial court convicted Appellant of 

the offenses indicated supra, and on October 7, 2015, the trial court sentenced 

Appellant to life in prison. This timely appeal followed, and all Pa.R.A.P. 1925 

requirements have been met. 

Appellant first contends the trial court erred in denying his motion for 

judgment of acquittal since the evidence was insufficient to sustain his 

conviction on all offenses as the Commonwealth failed to prove beyond a 

reasonable doubt that he was the perpetrator of the offenses. 

Initially, we note, at the conclusion of the trial testimony, Appellant’s 

counsel made an oral motion for judgment of acquittal pursuant to 

Pa.R.Crim.P. 606(a)(2). This motion challenged the sufficiency of the 

evidence. 

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 
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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. Brooks, 7 A.3d 852, 856-57 (Pa.Super. 2010) (citations 

omitted).

Here, Appellant’s sufficiency argument at trial and on appeal is specific 

in nature. Specifically, he avers the evidence was insufficient to prove that 

he was, in fact, the person who committed the crimes. As such, we need not 

conduct a thorough review of the evidence to determine whether it can 

support a finding that all of the elements have been met. Rather, we will focus 

on the specific issue raised by Appellant: whether the evidence was sufficient 

to establish that Appellant was the perpetrator of the crimes. 

In addressing Appellant’s sufficiency of the evidence claim, the trial 

court relevantly indicated the following in its Rule 1925(a) opinion:

A review of the evidence presented at trial shows that the 

Commonwealth proved beyond a reasonable doubt that 

[Appellant] was indeed the perpetrator. Two eyewitnesses, Ms. 

Chappelle and Ms. Williams, observed, from different vantage 

points, [Appellant] (in tandem with another individual) fire 

multiple shots at the [victim] and [then] flee down the same 

driveway [together]. As the [trial court] noted, this “case boils 

down to credibility...with regard to the [police] statement of Linda 

Chappelle and the testimony of Darnell Williams.” (N.T., 8/19/15, 

[at] 66). 

***

Here, Ms. Chappelle’s statement to [the] homicide 

[detectives] indicated that she knew both the victim [ ] and 

[Appellant] (whom she called Cal). She confirmed being at the 

scene of the shooting on November 16, 2012, at about 11:43 

a.m.; she was on the same side of the street as the [victim][.] 

[She] described that she saw [Appellant] and the other individual 
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(who was wearing a blue mask) shoot at the [victim] then put 

[their] guns in the waists of their pants and run down the driveway 

of 60th and Springfield Streets. She also indicated that [ ] she 

heard [numerous] gunshots. Furthermore, [in her statement,] 

Ms. Chappelle provided a detailed description of [Appellant] as 

well as the firearm which he used.

Although at trial Ms. Chappelle denied making a statement 

[to the] homicide [detectives] and claimed that she did not 

remember anything with regard to the shooting, her prior 

statement [to the] homicide [detectives, which was signed and 

adopted by her, were properly considered by the court]. Th[e] 

court is satisfied that Ms. Chappelle’s statement [to the] homicide 

[detectives] can in no way be discounted and does come in as 

substantive evidence[.] 

Ms. Darnell Williams, who notified police of the shooting, 

testified at trial consistently with her statement [to the] homicide 

[detectives]. While at a lineup conducted approximately one year 

and five months after the shooting she made a misidentification 

of [Appellant], Ms. Williams picked out [Appellant’s] photo [from] 

a photo array in close temporal proximity to the incident 

([approximately] one month after the shooting) and provided an 

in-court identification of [Appellant] at trial. Th[e] [trial] court 

finds Ms. Williams to be a credible and reliable witness.

In addition, two days after the shooting, Officer D’Alesio 

encountered Mr. Derrell Hill, who had a bulge in his pocket, on the 

5900 block of Windsor Street, just a couple of blocks away from 

the crime scene. When the officer exited the police vehicle, Mr. 

Hill ran into a rooming house at 5907 Windsor Street, entered a 

room in which Clinton Robinson and a man named Womack were 

seated, threw a gun under a bed and struggled with the police. 

The police recovered that handgun and a second gun which was 

under a box spring. Although the DNA evidence did not link 

[Appellant] to either firearm,3 cell phone records showed that 

[Appellant] and Clinton Robinson had extensive contact with each 

other. It was determined that both firearms were used to kill the 

[victim].

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3 At trial, Benjamin Safeer Levin, an expert in DNA analysis, indicated that he 

analyzed swabs taken from the two firearms seized by Officer D’Alesio, but 

that there was an insufficient amount of DNA evidence on the guns to generate 

a full DNA profile. N.T., 8/18/15 at 89-92, 95-96. 
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After considering all [of] the evidence and the applicable 

law, [the trial] court is satisfied that the Commonwealth 

established beyond [a] reasonable doubt that [Appellant] was the 

perpetrator of the offenses for which he stands convicted. 

Trial Court Opinion, filed 11/28/16, at 22-23 (footnote added) (footnote 

omitted). 

We agree with the trial court’s analysis in this regard, and applying the 

requisite standard of review, we conclude the evidence was sufficient to 

establish Appellant, along with a co-conspirator, shot the victim. See Brooks, 

supra. 

We acknowledge, as Appellant points out on appeal, that the record 

demonstrates the Commonwealth’s two eyewitnesses, Ms. Chappelle and Ms. 

Williams, were reluctant to testify, and particularly with regard to the former, 

the Commonwealth relied upon her pre-trial police statement in which she 

positively identified Appellant as the shooter approximately one month after 

the shooting. However, we remind Appellant that the trial court, as the finder 

of fact, was free to weigh the eyewitnesses’ demeanor, trial testimony, and 

pre-trial statements to detectives in determining Appellant’s guilt. See id. 

The fact the trial court’s credibility determinations do not favor Appellant’s 

version of events does not render the evidence insufficient in this case. See 

id. 

Further, we acknowledge that there was no DNA evidence linking 

Appellant to the guns at issue, and the cell phone records linking Appellant to 

Clinton Robinson constitutes circumstantial evidence of guilt. However, as 
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this Court has held, the absence of an appellant’s DNA does not preclude the 

fact finder from finding that he committed the crime. See Commonwealth 

v. Brooks, 875 A.2d 1141, 1147 (Pa.Super. 2005) (noting that “[i]n DNA as 

in other areas, an absence of evidence is not evidence of absence.”). Also, 

as our Supreme Court has held, “circumstantial evidence is sufficient to 

sustain a conviction so long as the combination of the evidence links the 

accused to the crime beyond a reasonable doubt.” Commonwealth v. 

Chambers, 528 Pa. 558, 599 A.2d 630, 635 (1991) (quotation and quotation 

marks omitted). Simply put, the evidence was sufficient to prove Appellant 

shot the victim. 

Appellant’s next contention is that the trial court erred in failing to 

suppress Ms. Williams’ in-court identification of him as one of the shooters

where her out-of-court photo identification was unduly suggestive. He further 

claims that Ms. Williams’ in-court identification did not have any independent 

origin such that it was not purged of the primary taint.4

Initially, we note:

Our standard of review in addressing a challenge to a trial 

court’s denial of a suppression motion is limited to determining 

whether the factual findings are supported by the record and 

whether the legal conclusions drawn from those facts are correct.

[W]e may consider only the evidence of the prosecution and 

so much of the evidence for the defense as remains 

uncontradicted when read in the context of the record as a whole. 

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4 The record reveals Appellant filed a motion to suppress Ms. Williams’ in-court 

identification, and he offered argument thereon. N.T., 8/19/15, at 8-10. The 

trial court denied the motion. Id. at 10. 
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Where the record supports the findings of the suppression court, 

we are bound by those facts and may reverse only if the court 

erred in reaching its legal conclusions based upon the facts. 

Moreover, it is within the lower court’s province to pass on the 

credibility of witnesses and determine the weight to be given to 

their testimony.

Commonwealth v. Jaynes, 135 A.3d 606, 610 (Pa.Super. 2016) (quotation 

and quotation marks omitted). 

A photographic identification is unduly suggestive if, under the totality 

of the circumstances, the identification procedure creates a substantial 

likelihood of misidentification. Commonwealth v. DeJesus, 580 Pa. 303, 

860 A.2d 102, 112 (2004). Photographs used in photo array line-ups are not 

unduly suggestive if the suspect’s picture does not stand out more than those 

of the others, and the people depicted in the array all exhibit similar facial 

characteristics. Commonwealth v. Fisher, 564 Pa. 505, 769 A.2d 1116, 

1126 (2001). The photographs in the array should all be the same size and 

should be shot against similar backgrounds. See id. 

When an out-of-court identification is alleged to be tainted, an in-court

identification may still stand if, again considering the totality of the 

circumstances, the identification had an origin sufficiently distinguishable to 

be purged of the primary taint. Commonwealth v. Abdul-Salaam, 544 Pa. 

514, 678 A.2d 342 (1996). The factors a court should consider in determining 

whether there was an independent basis for identification include: (1) the 

opportunity of the witness to view the criminal at the time of the crime; (2) 

the witness’s degree of attention; (3) the accuracy of the witness’s prior 
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description of the criminal; (4) the level of certainty demonstrated by the 

witness during the confrontation; and (5) the length of time between the crime 

and the confrontation. See id.

In the case sub judice, Appellant baldy asserts the pre-trial identification 

photo procedure was unduly suggestive. See Appellant’s Brief at 8. That is, 

he begins his argument with the premise that the pre-trial identification 

procedure was unduly suggestive and tainted, however, he has not developed 

an argument or pointed to factors in support of his argument. Id. 

As this Court has held, where there is no evidence that the out-of-court 

identification proceedings were tainted, we need not reach the second 

question of whether the in-court identification is inadmissible based on the 

suggestiveness of the out-of-court identification and lack of an independent 

basis. Jaynes, 135 A.3d at 610 (holding that where a defendant does not 

show that improper police conduct resulted in a suggestive identification, 

suppression is not warranted); Commonwealth v. Fulmore, 25 A.3d 340, 

349 (Pa.Super. 2011). Accordingly, since Appellant has not properly 

developed an argument that Ms. Williams’ out-of-court photo identification 

was based on an unduly suggestive identification procedure, we find no relief 
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is due on his claim that Ms. Williams’ in-court identification should have been 

suppressed.

5

 See id.

For all of the foregoing reasons, we affirm.

Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/2/2017

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5 We note Appellant argues Ms. Williams’ in-court identification was lacking 

credibility since her viewing of the photo array was 29 days after the shooting, 

she was in shock during the shooting, the sun was in her eyes during the 

shooting, and she previously misidentified the shooter during a line-up. 

Appellant’s Brief at 8-9. These factors are relevant to the overall credibility of 

Ms. Williams’ in-court identification; however, as indicated supra, the trial 

court weighed these factors and found Ms. Williams’ in-court identification to 

be credible. This was within the trial court’s province. See Commonwealth 

v. Kyle, 533 A.2d 120, 132 (Pa.Super. 1987) (holding issue of credibility of 

an in-court identification is separate from issue of whether the in-court 

identification should be suppressed).