J-A09045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALBERT BRINKLEY

Appellant No. 2256 EDA 2013

Appeal from the Judgment of Sentence entered May 31, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0014120-2011

BEFORE: BOWES, DONOHUE, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 10, 2015

Appellant, Albert Brinkley, appeals from the judgment of sentence the 

Court of Common Pleas of Philadelphia County entered May 31, 2013. On 

appeal, Appellant argues the evidence was insufficient to support his second 

degree murder, robbery, and possessing an instrument of crime convictions. 

We disagree. Accordingly, we affirm. 

The relevant facts and procedural history can be summarized as 

follows: 

[O]n April 2, 2011, at approximately 4:40 P.M., [Police Officer 

Candice McCoy] went to the Busti Housing Project at 46th and 

Market Streets in Philadelphia in response to a radio call. A 

black Pontiac Bonneville was in the eastbound lane with the 

engine running. The driver’s side door was slightly open and the 

front passenger’s side window was shattered. Two (2) black 

males discovered in the vehicle had been shot multiple times. 

The male sitting in the front passenger’s seat was unresponsive. 
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The male sitting in the driver’s seat was complaining of pain in 

his legs. The medic unit arrived and transported the males to 

the hospital. The male [who] had been sitting in the passenger’s 

seat, later identified as Quince Morant [(Morant)] . . ., was 

pronounced dead on arrival. The other male, later identified as 

Sharad DuBose [(DuBose)], received treatment for his injuries. 

Trial Court Opinion, 5/29/14, at 2. 

Following the shooting, the police interviewed several individuals, 

including DuBose, Consuelo Matthews, Jerome Boyd, John Ashmore, and 

Ivory Matthews, who provided written statements incriminating Appellant as 

involved in the shooting. In essence, these witnesses stated that Appellant, 

along with codefendant, robbed Morant and DuBose, in the course of which 

they killed Morant and injured DuBose. At trial, however, with one exception 

(Consuelo Matthews),1all of the witnesses distanced themselves from the 

prior statements they gave to the police, denying making any statement to 

the police (DuBose), not recalling signing any statement (Boyd), not 

recalling what information was provided to the police (Ashmore), disputing 

the accuracy of the statement (Ivory Matthew), or claiming not to have 

signed all pages of the statement (Ivory Matthew).

On May 31, 2013, [Appellant] was found guilty by a jury of 

[m]urder of the [second] [d]egree; . . . two (2) counts of 

[r]obbery; and, [p]ossession of an [i]nstrument of [c]rime. He 

was sentenced that same day to [l]ife without possibility of 

parole for the [m]urder conviction and up to five (5) years for 

the [r]obbery convictions. All sentences to run concurrently.

____________________________________________

1 At trial, Consuelo Matthews, “confirmed that most of [her] statement was 

accurate. However, she testified that she did not tell [detectives] that 

[Appellant] took Ebony into the bathroom with him.” Id. at 4. 
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On June 21, 2013, [Appellant] filed a [p]ost [s]entence [m]otion 

that was denied on August 1, 2013, without a hearing.

On August 1, 2013, trial counsel was permitted to withdraw and 

appellate counsel was appointed.

Trial Court Opinion, 5/29/14, at 1 (footnote omitted). This appeal followed. 

On appeal, Appellant raises the following issues for our review:

I. Was the evidence sufficient to establish beyond a reasonable 

doubt that [A]ppellant committed the offense of [second degree] 

murder?

II. Was the evidence sufficient to establish beyond a reasonable 

doubt that the [A]ppellant committed two robbery offenses?

III. Was the evidence sufficient to establish that [Appellant] 

possessed an instrument of crime?

Appellant’s Brief at 2. 

“In sufficiency review, we are obliged to determine whether the 

evidence presented at trial and all reasonable inferences derived therefrom, 

viewed in the light most favorable to the Commonwealth as verdict winner, 

are sufficient to satisfy all elements of the offense beyond a reasonable 

doubt.” Commonwealth v. Johnson, 42 A.3d 1017, 1025 (Pa. 2012) 

(quotation marks and citations omitted). 

“To secure a conviction for second-degree murder, the Commonwealth 

must prove that the defendant committed a murder while [he or she] was 

engaged . . . in the perpetration of a felony.” 18 Pa.C.S. § 2502(b) (internal 

quotation marks omitted). “‘Perpetration of a felony’ is statutorily defined in 

a very broad manner, encompassing, inter alia, ‘[t]he act of the defendant in 
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engaging in . . . the commission of, or an attempt to commit, . . . robbery . . 

..’ 18 Pa.C.S. § 2502(d).” Commonwealth v. Miller, 35 A.3d 1206, 1212 

(Pa. 2012). 

A person commits robbery if, “in the course of committing a theft, he: 

(i) inflicts serious bodily injury upon another; (ii) threatens another with or 

intentionally puts him in fear of immediate serious bodily injury; (iii) [or] 

commits or threatens immediately to commit any felony of the first or 

second degree.” 18 Pa.C.S.A. § 3701(a)(1)(i)-(iii). “An act shall be deemed 

‘in the course of committing a theft’ if it occurs in an attempt to commit theft 

or in flight after the attempt or commission.” Id. at § 3701(a)(2). 

Finally, a person is guilty of possessing instruments of crime “if he 

possesses a firearm or other weapon concealed upon his person with intent 

to employ it criminally.” 18 Pa.C.S.A. § 907. 

The trial court, applying the proper standard of review, concluded as 

follows:

The evidence, viewed in the light most favorable to the 

Commonwealth, consisted of the eyewitness account of John 

Ashmore. In his initial statement to detectives, he indicated that 

he saw [Appellant] start shooting with a “long” silver and black 

handgun at the car in which the [victim] and DuBose were 

sitting. After the shooting, he saw [Appellant] reach inside the 

car and take something from the car. Ashmore went into the 

400 building after [Appellant] and up to Consuelo Matthews’ 

apartment where he saw [Appellant], who had changed his 

clothes, in the bathroom talking to Ebony Matthews. Ashmore 

told the detectives that he told Consuelo, Ebony and Ivory what 

he saw regarding the shooting. He identified a photo of 

[Appellant], who he has known all his life. At trial, although 

Ashmore acknowledged that he and his mother signed his 
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statement, he denied making the statement. Since Ashmore 

testified at trial, his statement was signed by him and he was 

cross-examined about his prior statement, his statement was 

admissible as substantive evidence. Therefore, the jury was free 

to believe all, some or none of what was in his initial statement. 

Commonwealth witness Jerome Boyd acknowledged that he gave 

a statement to detectives and recognized his signature on his 

statement: however, at trial, he testified that he did not recall 

being at the Busti projects on the day of the shooting or recall 

seeing [Appellant] or [codefendant] on the day of shooting.

In his statement to [detectives] on May 4, 2011, Boyd indicated 

on the day of the shooting [Appellant] came to his apartment 

and said to him, “we need the gun”. Boyd retrieved a blue bag 

from his bedroom containing a nickel plated 9 millimeter gun 

with a black handle that [codefendant] had given him one week 

before and asked him to hold it for him. Approximately twentyfive (25) minutes after giving [Appellant] the gun, he heard 

between ten to fourteen gunshots coming from outside the 

building. As stated supra, since Boyd testified at trial, his 

statement was signed by him and he was cross-examined about 

his prior statement, his statement was admissible as substantive 

evidence. Therefore, the jury was free to believe all, some or 

none of what was in his initial statement.

Commonwealth witness Consuelo Matthews’ testimony 

corroborated Ashmore’s statement. She testified that on the day 

of the shooting she was in her apartment with Ebony, Ivory, her 

fiancé, and three cousins. While looking out the window after 

hearing gunshots, she saw [Appellant] coming down the steps 

and knock on her apartment door. When she came back into her 

apartment, [Appellant] was in the bathroom.

In her statement to . . . detectives on April 17, 2011, she 

indicated that she left her apartment after hearing gunfire to 

look out of the window. Elante Sr. [a relative present in the 

apartment] locked the front door after her. She saw [Appellant] 

knock on the front door and Elante Sr. open the front door and 

allowed him inside. When she followed [Appellant] back into her 

apartment, she saw [Appellant] take her daughter, Ebony, into 

the bathroom and shut the door. 
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As stated supra, since Consuelo Matthews testified at trial, 

signed her statement and was cross-examined about her prior 

statement, her statement was admissible as substantive 

evidence. Therefore, the jury was free to believe all, some or 

none of what was in her initial statement. 

Commonwealth witness Ivory Matthews’ statement also 

corroborated Ashmore’s statement. At trial, she testified she did 

not recall telling the detectives much of what was contained in 

her statement. However, on April 6, 2011, Ivory acknowledged 

that she did give a signed statement to . . . detectives.

In her statement Ivory recounted that: after the shooting, her 

sister Ebony, came into the house with Ashmore who told them 

that he saw [Appellant] walk up to the passenger side of a car 

and say to the occupants in the car, “y’all got to the count of five 

to give it up”. And that after counting to four (4), [Appellant] 

shot . . . Morant in the head, ran around to the other side of the 

car and say to Du[B]ose, “give it up, the watch, the coat and the 

ring”. He then shot at Du[B]ose. After Ashmore finished telling 

what happened, [Appellant] knocked on the apartment door, 

came into the apartment, went into the bathroom, and washed 

his hands. Ebony went into the bathroom with [Appellant] and 

was talking to him for a few minutes. Since Ivory testified at 

trial, acknowledged that she signed her statement and was 

cross-examined about her prior statement, her statement was 

admissible as substantive evidence. Therefore, the jury was free 

to believe all, some or none of what was in her initial statement.

The ballistic evidence corroborated Boyd’s testimony as to the 

caliber of gun that he gave to [Appellant]. Nine (9) of the ten 

(10) bullets recovered were determined to have been fired from 

the same firearm[,] which was a 9 mm handgun.

Trial Court Opinion, 5/29/14, at 13-15. 

Upon review of the record and pertinent law, we conclude the evidence 

presented at trial, and all reasonable inferences derived therefrom, viewed in 

the light most favorable to the Commonwealth as verdict winner, is sufficient 
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to satisfy all elements of the offenses at issue here beyond a reasonable 

doubt.

Appellant argues the evidence was insufficient to support his 

convictions because DuBose did not (i) testify Appellant robbed Morant and 

DuBose, (ii) identify Appellant at trial as the shooter; or (iii) testify that 

anything was taken from them (DuBose and Morant). Additionally, Appellant 

argues that the evidence was insufficient because Appellant was not found in 

possession of stolen property or the handgun used in the shooting. 

Appellant believes the Commonwealth has failed to prove beyond a 

reasonable doubt that Appellant committed the crimes ascribed to him 

because its witnesses recanted at trial their original unambiguous 

identification of Appellant as the perpetrator of the robbery and murder at 

issue here. Appellant ignores that the original statements provided by the 

witnesses are admissible, and in fact were admitted,2as substantive 

evidence against Appellant. Commonwealth v Brown, 52 A.3d 1139, 

1171 (Pa. 2012); Pa.R.E. 803.1(1). The jury, having heard the statements 

the witnesses made to the detectives, and having heard their “testimony” at 

trial, believed the version of the facts as first recounted to the officers, as 

opposed to the version provided at trial. The jury was entitled to do so, see

____________________________________________

2 All witness statements were admitted as substantive evidence with one 

exception only, namely DuBose’s statement. It was not admitted as 

substantive evidence because it was not adopted by DuBose either at the 

time of the statement or in court. 
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Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011), and Appellant’s 

unsupported argument to the contrary fails. 

Appellant also ignores that inconsistencies in the witnesses’ recounting 

of the facts do not raise questions of sufficiency of the evidence, but 

questions of weight. Brown, 52 A.3d at 1171; Sanchez, supra; 

Commonwealth v. Montalvo, 956 A.2d 926, 932 n.6 (Pa. 2008). The 

jury, again, decided to give more weight to the statements made to the 

officers than the testimony provided at trial. We cannot reweigh the 

evidence, or substitute our judgment for that of the jury. See Sanchez, 

supra. 

The approach taken by Appellant—ignoring the evidence against him 

and emphasizing the “missing” evidence—shows Appellant also fails to 

recognize that under our standard of review for sufficiency of the evidence, 

we must view the evidence in the light most favorable to the verdict winner, 

in this case, the Commonwealth. Appellant, however, impermissibly is 

asking us to view the evidence against Appellant in the light least favorable 

to the Commonwealth or, alternatively, view the absence of evidence against 

Appellant in the light most favorable to the Appellant. 

Finally, Appellant fails to recognize that the Commonwealth did not 

need to prove that Appellant was in possession of the stolen goods or the 

handgun at the time of apprehension to carry its burden in connection with 

the robbery and PIC convictions. See McElrath v. Commonwealth, 592 
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A.2d 740, 745 (Pa. Super. 1991) (identification of defendant by victim was 

sufficient to sustain conviction for robbery); Commonwealth v. Robinson, 

817 A.2d 1153, 1162 (Pa. Super. 2003) (victim’s testimony that armed 

assailants robbed her was sufficient to establish that defendant violated the 

Uniform Firearms Act, despite no firearm being recovered when defendant

was apprehended by police). The law is clear on this point. 

In light of the foregoing, we conclude the trial court correctly 

concluded the Commonwealth presented sufficient evidence to carry its 

burden. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015