J-A21022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANDRE WILLIAMS

Appellant No. 1887 EDA 2014

Appeal from the Judgment of Sentence April 24, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0011010-2012

BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 24, 2015

Appellant, Andre Williams, appeals from the April 24, 2014 aggregate 

judgment of sentence of six to 12 years’ imprisonment, imposed after a jury 

found him guilty of robbery and aggravated assault.1 After careful review, 

we affirm.

The trial court summarized the relevant facts of this case as follows.

On March 17, 2011, at about 11:30 a.m., 

Rasheed Durham, while walking on the street, was 

the victim of a robbery and an aggravated assault. 

Within a few hours of the robbery, Mr. Durham 

offered the following information to Detective Miles, 

which was contemporaneously chronicled in a signed 

statement. Mr. Durham named [Appellant] as the 

person who robbed and assaulted him. Mr. Durham 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 2702(a), respectively.
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stated that, while walking, he saw [Appellant] across 

the street. [Appellant] walked toward him, pointed a 

gun at him and said, “give it up.” [Appellant] then 

insisted that Mr. Durham sit on the step and give 

him “the stuff” or he would “pop the s[**]t out of 

[him].” After giving [Appellant] his wallet, 

[Appellant] instructed Mr. Durham to walk away—

when Mr. Durham began to walk away, [Appellant] 

struck him twice in the back of the head. [Appellant] 

stole approximately $250. Mr. Durham claimed that 

he has a child with Demiqua Thomas, [Appellant]’s 

cousin. Mr. Durham also stated that he knew 

[Appellant] for ten years. He saw [Appellant] only a 

month before the robbery and, according to Mr. 

Durham, “everything was okay.” Detective Miles 

specifically asked Mr. Durham if everything he told 

the [d]etective was the truth—Mr. Durham signed 

the statement and attested to its truthfulness.

Mr. Durham stated at trial that the suspect 

stood only a few feet away from him during the 

robbery and that he saw the suspect’s face. Mr. 

Durham identified [Appellant] in a series of 

photographs while at the police station. He signed 

[Appellant]’s photograph immediately after 

identifying him. For his wound, Mr. Durham agreed, 

at trial, that he received a “pretty good whack” to 

[the] head. He received six staples and Percocet 

painkillers from the hospital for his injuries.

The day after the robbery, Mr. Durham 

returned to the police station and stated that he no 

longer wished to file charges against [Appellant]. 

Recorded in a statement taken on this day, Mr. 

Durham claimed that he had been in jail before and 

that he “didn’t want anyone to go to jail.” He also 

maintained that he “shouldn’t have been down there 

... and this [robbery and assault] wouldn’t have 

happened.” Yet, at trial, Mr. Durham changed his 

previously stated reasons for repudiation and now 

claimed that he changed his mind on the suspect’s 

identification because he was unsure of who robbed 

him. Nowhere, however, in his original signed police 

statement, nor in the statement taken the day after, 
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did Mr. Durham state that the previously identified 

[Appellant] was not the person who robbed him. In 

Detective Miles[’] report, Mr. Durham agreed that 

[Appellant] was, in fact, the one who pointed a gun 

at him and attacked him; but, nonetheless, he 

preferred not to press charges.

According to the second statement taken by 

Detective Miles, Mr. Durham agreed that everything 

he told the detective the day before about the 

robbery and the assault was the truth. Since there 

were no other suspects in the robbery, and because 

Detective Miles believed that everything Mr. Durham 

had told him the day before was [] accurate, he 

never rescinded the arrest warrant for [Appellant]. 

The police arrested [Appellant] a few months later.

At trial, Mr. Durham claimed that he was high 

on PCP at the time of the robbery. Philadelphia 

Police Officer Raymond Green responded to the radio 

call regarding the robbery. Officer Green, who has 

had many interactions with citizens on PCP, testified 

that when he met with Mr. Durham following the 

robbery, Mr. Durham did not appear intoxicated; 

rather, he appeared coherent and answered 

questions without hesitation. Officer Green agreed 

that if Mr. Durham had appeared impaired, he would 

have made a note in his report. When interviewed 

by Officer Green, Mr. Durham named [Appellant] as 

the person who robbed and assaulted him (he also 

gave a description). Mr. Durham also showed no 

signs of intoxication while he gave his report or 

reviewed photographs with Detective Miles.

Trial Court Opinion, 1/20/15, at 1-3 (citations omitted; quotation marks and 

some brackets in original).

By criminal information, filed on September 20, 2012, the 

Commonwealth charged Appellant with the aforementioned offenses as well 

as one count each of possession of firearm prohibited, firearms not to be 
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carried without a license, theft by unlawful taking, receiving stolen property, 

carrying firearms in public in Philadelphia, possession of an instrument of 

crime, terroristic threats, simple assault, and recklessly endangering another 

person.2 On March 6, 2014, a two-day jury trial commenced. On March 7, 

2014, the jury found Appellant guilty of robbery and aggravated assault. 

The jury found Appellant not guilty of possession of firearm prohibited, 

firearms not to be carried without a license, and carrying firearms in public 

in Philadelphia. The remaining charges were nolle prossed. On April 24, 

2014, the trial court sentenced Appellant to six to 12 years’ imprisonment.3

On April 30, 2014, Appellant filed a timely post-sentence motion, 

which the trial court denied on June 5, 2014. Appellant filed a timely notice 

of appeal on June 27, 2014.4

On appeal, Appellant presents the following two issues for our review.

1. Did the [trial] court commit error by convicting 

Appellant of robbery where the evidence at 

trial was insufficient to establish that Appellant 

threatened serious bodily injury while 

committing a theft?

____________________________________________

2 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 3921(a), 3925(a), 6108, 907(a), 

2706(a)(1), 2701(a), and 2705, respectively.

3 Specifically, the trial court sentenced Appellant to four to eight years’ 

incarceration on the robbery conviction and two to four years’ on the 

aggravated assault conviction, imposed to run consecutively. 

4 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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2. Did the [trial] court commit error by convicting 

Appellant of aggravated assault where the 

evidence at trial was insufficient to establish 

that Appellant caused serious bodily injury to 

Complainant?

Appellant’s Brief at 5.

We address both of Appellant’s issues together as Appellant raises a 

single underlying challenge to the sufficiency of the evidence that the 

Commonwealth presented to convict him of robbery and aggravated assault. 

In both of his issues, Appellant contends the only evidence linking Appellant 

to the crimes was Durham’s statement, which Durham later recanted. Id. at 

9, 11. Further, Appellant notes that the proceeds of the robbery and the 

firearm were never recovered, and the Commonwealth did not present any 

other eyewitness testimony. Id.

Our standard of review for challenges to the sufficiency of the evidence 

is well settled. “In reviewing the sufficiency of the evidence, we consider 

whether the evidence presented at trial, and all reasonable inferences drawn 

therefrom, viewed in a light most favorable to the Commonwealth as the 

verdict winner, support the jury’s verdict beyond a reasonable doubt.” 

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation 

omitted), cert. denied, Patterson v. Pennsylvania, 135 S. Ct. 1400 

(2015). “The Commonwealth can meet its burden by wholly circumstantial 

evidence and any doubt about the defendant’s guilt is to be resolved by the 

fact finder unless the evidence is so weak and inconclusive that, as a matter 
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of law, no probability of fact can be drawn from the combined 

circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 

2013) (en banc) (internal quotation marks and citation omitted), appeal 

denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the 

entire record ... and all evidence actually received[.]” Id. (internal quotation 

marks and citation omitted). “[T]he 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. Orie, 88 

A.3d 983, 1014 (Pa. Super. 2014) (citation omitted), appeal denied, 99 A.3d 

925 (Pa. 2014). “Because evidentiary sufficiency is a question of law, our 

standard of review is de novo and our scope of review is plenary.” 

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation 

omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

In this case, Appellant was convicted of robbery and aggravated 

assault. “A person is guilty of robbery if, in the course of committing a theft, 

he ... threatens another with or intentionally puts him in fear of immediate 

serious bodily injury[.]” 18 Pa.C.S.A. § 3701(a)(1)(ii). Further, a person 

commits aggravated assault if he “attempts to cause serious bodily injury to 

another, or causes such injury intentionally, knowingly or recklessly under 

circumstances manifesting extreme indifference to the value of human life.” 

Id. § 2702(a)(1). 
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With regard to each of these crimes, Appellant’s sole argument is 

Durham, the victim and only witness linking Appellant to the crime, recanted 

his statement implicating Appellant in the robbery.5 Appellant’s Brief at 23. 

Our Supreme Court, however, has held that prior inconsistent statements 

“must ... be considered by a reviewing court in the same manner as any 

other type of validly admitted evidence when determining if sufficient 

evidence exists to sustain a criminal conviction.” Commonwealth v. 

Brown, 52 A.3d 1139, 1171 (Pa. 2012). Accordingly, we view the evidence 

in the light most favorable to the Commonwealth as the verdict-winner, and 

we conclude the evidence is sufficient to support the convictions for robbery 

and aggravated assault beyond a reasonable doubt. 

At trial, the Commonwealth presented the written, signed statement of 

Durham, which he gave to police within hours of the events, when the 

____________________________________________

5 Because Appellant is challenging the credibility of Durham’s prior 

inconsistent statements, it may seem like an argument going to the weight 

of the evidence. See Commonwealth v. Palo, 24 A.3d 1050, 1054 (Pa. 

Super. 2011) (classifying a challenge to the credibility of the 

Commonwealth’s witness as an argument going to the weight, not 

sufficiency, of the evidence), appeal denied, 34 A.3d 828 (Pa. 2011). 

However, the recantation of a statement implicates the sufficiency of the 

evidence where it renders the prior inconsistent statement “so inherently 

unreliable and contradictory that it makes the jury’s choice to believe [it] an 

exercise of pure conjecture[.]” Commonwealth v. Brown, 52 A.3d 1139, 

1154 n.18 (Pa. 2012). In this case, Appellant asserts that Durham’s prior 

inconsistent statements, which he repudiated at trial, were insufficient to 

prove the crimes beyond a reasonable doubt and were the only evidence 

supporting Appellant’s conviction. Therefore, we address Appellant’s claim 

as a sufficiency claim.
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robbery and assault were still fresh in his mind.6 His statement identified 

the culprit as Appellant, with whom Durham was previously acquainted. 

Durham also selected Appellant’s photograph out of an array and signed it. 

Detective Miles testified that he transcribed Durham’s statement for his 

report as Durham spoke. Durham adopted this statement by signing it as 

well as attesting to its truthfulness. Appellant does not dispute that this 

statement, taken alone, establishes all the elements of both offenses. 

Instead, he argues that Durham’s statement is insufficient because Durham 

later recanted it. 

Even though Durham recanted his statement twice, one day after he 

gave it to Detective Miles, and at trial, the jury was nonetheless free to 

accept Durham’s initial statement as truthful and reject his recantations. 

See Orie, supra. Our Supreme Court has explained that a statement does 

not become insufficient due to recantation alone. 

[T]he mere fact that [the witness] recanted a 

statement he had previously made to the police 

certainly does not render the evidence insufficient to 

____________________________________________

6 Durham’s prior inconsistent statements identifying Appellant as the 

perpetrator were admissible at trial as substantive evidence because the 

prior statement was a writing signed and adopted by Durham, Durham 

testified at trial, and he was subject to cross-examination. See Pa.R.E. 

803.1(1)(B) (providing a prior inconsistent statement is admissible if it is in 

the form of a writing signed and adopted by the declarant); Brown, supra

at 1171 n.52 (noting a prior inconsistent statement is admissible if it 

complies with Pennsylvania Rule of Evidence 803.1 and the witness testifies 

at trial and is subject to cross-examination). Appellant does not challenge 

the statement’s admissibility.
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support Appellant’s conviction. Rather, the jury was 

free to evaluate both [the witness]’s statement to 

police as well as his testimony at trial recanting that 

statement, and free to believe all, part, or none of 

the evidence.

Commonwealth v. Hanible, 836 A.2d 36, 39 (Pa. 2003) (citation omitted), 

cert. denied, Hanible v. Pennsylvania, 543 U.S. 835 (2004).

Here, Durham’s first repudiation the day after giving the inculpatory 

statement to police stated that Durham did not wish to press charges. N.T., 

3/6/14, at 43. Significantly, his statement confirmed that Appellant 

committed the robbery and assault. Id. at 54. Moreover, in his recantation 

at trial, Durham stated he had smoked PCP in the morning before the 

incident. Id. at 58-59. In rebuttal, the Commonwealth presented the 

testimony of Detective Miles and Officer Green, who stated that, based on 

their police experience and observations, they did not believe Appellant was 

on PCP at the time he gave his initial statement on the day of the robbery. 

Id. at 76, 88-89. The jury personally observed the testimony of Durham, 

Detective Miles, and Officer Green at trial, and the jury was free to choose to 

credit Durham’s initial statement to police as truthful and discount his 

recantations. See Brown, supra at 1169 (emphasizing that “it is the 

finder-of-fact’s ability to make in-person observations of the witness at the 

time of trial, as he or she explains the reasons for the prior statement, which 

is most crucial to its assessment of the witness’s credibility[]”). Accordingly, 

we conclude Durham’s prior inconsistent statement alone was sufficient to 
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support the jury’s verdict beyond a reasonable doubt. See Hanible, supra. 

Therefore, Appellant is not entitled to relief on either of his issues. See 

Diamond, supra.

Based on the foregoing, we conclude that both of Appellant’s issues 

are devoid of merit. Accordingly, we affirm the April 24, 2014 judgment of 

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015