Com. v. Kimbrough

• Decision Date: 19 April 2005
• Citation: 872 A.2d 1244
• Parties: COMMONWEALTH of Pennsylvania Appellee v. Darrell KIMBROUGH, Appellant.
• Court: Pennsylvania Superior Court

872 A.2d 1244

COMMONWEALTH of Pennsylvania Appellee v. Darrell KIMBROUGH, Appellant.

Superior Court of Pennsylvania.

Argued May 25, 2004.

Filed April 19, 2005.

Gerard E. Grealish, Scranton, for appellant.

Eugene M. Talerico, Assistant District Attorney, Scranton, for Commonwealth, appellee.

Before: HUDOCK, JOYCE, MUSMANNO, KLEIN, BENDER, BOWES, GANTMAN, McCAFFERY, and PANELLA, JJ.

PANELLA, J.:

¶ 1 Appellant, Darrell Kimbrough ("Kimbrough"), appeals from the judgment of sentence entered on September 27, 2000, by the Honorable Carmen D. Minora, Court of Common Pleas of Lackawanna County, following a jury trial wherein Kimbrough was found guilty of third-degree murder, 18 PA. CONS. STAT. ANN. § 2502(c), and voluntary manslaughter, 18 PA. CONS. STAT. ANN. § 2503(a)(1), under accomplice theories.¹ At trial, Kimbrough and his half-brother, Fredrick Campfield, as well as Kimbrough's employee, Jack Morris, were implicated in the shooting death of Derrick Walker.² Kimbrough was also found guilty of two counts of recklessly endangering another person³ in relation to two other victims, Anthony Toosen and Nikia Hogan, who were non-fatally wounded. After careful review, we affirm.

¶ 2 The trial court provided a comprehensive opinion pursuant to Pa.R.A.P., Rule 1925(a), 42 PA. CONS. STAT. ANN. The factual history can be summarized as follows.

¶ 3 In the evening hours of June 12, 1997, Kimbrough and the victim were involved in an argument at the Broadway Bar in Scranton. The victim was eventually joined at the bar by his brother, Dennis Walker. Although the two brothers spoke about the argument that Derrick had had with Kimbrough, Derrick felt that the confrontation was over and, regrettably, decided to stay at the bar.

¶ 4 Later in the evening, Frederick Campfield, the convicted shooter, asked Jack Morris for a ride. After initially ignoring Campfield's request, Morris ended up driving Campfield to Skyview Apartments, but only after he was told to do so by Kimbrough. Consequently, Campfield and Morris went to the apartment complex; Campfield ran inside, stayed only a few minutes, and then ran out again. As they drove away, Campfield gave Morris a gun he had retrieved from the apartment and told him to carry it into the bar.

¶ 5 When Morris walked into the bar, Kimbrough asked him if he had his "jimmie" [gun] which prompted Morris into giving the gun to Kimbrough in the restroom. Kimbrough then took several steps which facilitated the shooting which was to occur shortly thereafter: he cocked the gun, chambering a round; exited the restroom; made threatening statements while waiving the gun around, such as "does anyone want to mess with me now"; and talked of "shooting the place up."

¶ 6 The open display of the gun, combined with the menacing statements, understandably caused many of the bar patrons to flee. At about the same time, Kimbrough engaged in a heated argument with Dennis Walker. Although they argued about Derrick Walker, Kimbrough made numerous threatening statements directed against Dennis, and pointed the gun at Dennis. Unwisely, Dennis did not back down, and the two men continued to scream at each other. Kimbrough pointed the gun directly at Dennis Walker and said "I'll kill you." Kimbrough went on to say that he could have someone else shoot up the place and that he did not have to do it himself. At the same time, Campfield kept saying, "Let me show you. Let me show you. Let me show you."

¶ 7 Raquel Waiters, who was unfortunately a patron of the bar that night, responsibly pushed Kimbrough's arm down so that the gun was no longer pointed at Dennis Walker. But the danger did not end that easily. The resulting events unfolded quickly.

¶ 8 Dennis' two brothers, Robert Walker and Derrick Walker, pulled Dennis out of the bar. In fact, everyone in the bar seemed to be moving outside. Kimbrough appeared to have either stuck the gun in the rear of his pants or held it behind his back, depending upon the perception of the witnesses that night. Campfield grabbed the gun from Kimbrough, stepped into the street, and pointed the gun at a departing automobile. While saying words to the effect that he was going to show everyone "how it's done", he discharged the gun into the car. The trial court concisely summarized the similar, yet slightly different, versions of the shooting:

Dennis Walker, the victim's brother, said Campfield ran from behind Kimbrough and grabbed the gun. Campfield said, "I'm going to show you how it's done, son," and went out into the middle of the street, immediately raised the gun, and started shooting at a departing automobile containing the victim.

Jack Morris stated under oath that Campfield grabbed the gun out of Kimbrough's back as Defendant Campfield was walking outside the bar. Campfield said he was going to show everybody how it's done. He pointed the gun at a white car and started firing.

Jamal Morrison said the Defendant Kimbrough then took the gun out of his pants and Campfield snatched it out of his hands. Then Campfield said "I'm going to show you how it's done, let me do it, let me do it, let me do it, let me do it." Campfield "grabbed it, tussled for it," and stepped out on the street and started firing.

Raquel Waiters said Campfield grabbed the gun and said, "Let me see, I'm going to show you, I'm going to show you, I'm going to show you" and ran into the middle of the road and started shooting at a car while Defendant Kimbrough remained standing in the doorway. Subsequently, Waiters testified that she did not know how Campfield got the gun. Waiters then stated that after the shooting, Defendant Kimbrough said of Defendant Campfield, the alleged shooter: "that's my man."

Trial Court Opinion Sur Pa.R.A.P.1925(A), 10/16/02, at pp. 5-6.

¶ 9 Several shots were fired into the vehicle. Derrick Walker was in the back seat, and was tragically killed by a single bullet to the back of his head. Anthony Tooson was the driver of the vehicle, and Nikia Hogan was in the passenger seat.

¶ 10 Kimbrough's first issue on appeal is whether the Commonwealth presented sufficient evidence to sustain the convictions of third degree murder, voluntary manslaughter and reckless endangering. Specifically, Kimbrough argues that the evidence was insufficient to demonstrate that he possessed the requisite intent to sustain his conviction as an accomplice to the shooting.

¶ 11 In determining sufficiency of the evidence, we review the evidence admitted at trial, along with any reasonable inferences that may be drawn from that evidence, in the light most favorable to the verdict winner. Commonwealth v. Rivera, 565 Pa. 289, 295, 773 A.2d 131, 135 (2001); Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.2003). A conviction will be upheld if after review we find that the jury could have found every element of the crime beyond a reasonable doubt. Bullick, 830 A.2d at 1000. We may not weigh the evidence or substitute our judgment for that of the fact-finder. Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.2001),appeal denied, 569 Pa. 716, 806 A.2d 858 (2002). The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Commonwealth v. Reaser, 851 A.2d 144, 147 (Pa.Super.2004). "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." Commonwealth v. Sheppard, 837 A.2d 555, 557 (Pa.Super.2003)(citing Commonwealth v. Cassidy, 447 Pa.Super. 192, 668 A.2d 1143, 1144 (1995)). The Commonwealth may prove each element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. DiStefano, 782 A.2d at 582. Furthermore, the entire record must be evaluated and all evidence actually received must be considered. Id. 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. Commonwealth v. Dougherty, ___ Pa. ___, 860 A.2d 31, 36 (2004).

¶ 12 As stated previously, Kimbrough was found guilty of third degree murder and voluntary manslaughter under an accomplice theory of liability for the shooting death of Derrick Walker. The Pennsylvania Crimes Code sets forth accomplice liability as follows:

(a) General Rule—A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.

(b) Conduct of Another—A person is legally accountable for the conduct of another when:

.....

(3) he is an accomplice of such other person in the commission of the offense.

(c) Accomplice Defined—A person is an accomplice of another person in the commission of an offense if:

(1) with intent of promoting or facilitating the commission of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person in planning or committing it.

18 PA. CONS. STAT. ANN. § 306.

¶ 13 To find Kimbrough guilty as an accomplice, a two-prong test must be satisfied. Commonwealth v. Murphy, 577 Pa. 275, 284, 844 A.2d 1228, 1234 (2004). First, there must be evidence to show that Kimbrough intended to facilitate or promote the underlying offense. Id. Second, there must be evidence that Kimbrough actively participated in the crime or crimes by soliciting, aiding, or agreeing to aid the principal, in this case, Frederick Campfield. Id. Both requirements may be established wholly by circumstantial evidence. Id. Only "[t]he least degree of concert or collusion in the commission of the offense is sufficient to sustain a finding of responsibility as an accomplice." Commonwealth v. Coccioletti, 493 Pa. 103, 109, 425 A.2d 387, 390 (1981). No agreement is required, only aid. Commonwealth v. Graves, 316 Pa.Super. 484, 463 A.2d 467, 470 (1983).

¶ 14 We review Kimbrough's actions that...