Commonwealth v. Palmer

192 A.3d 85

COMMONWEALTH of Pennsylvania

v.Robert PALMER, Appellant

No. 3618 EDA 2016

Superior Court of Pennsylvania.

Submitted January 16, 2018

Filed June 26, 2018

Reargument Denied August 29, 2018

Karl Baker, Public Defender, and Owen W. Larrabee, Public Defender, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, and Anthony V. Pomeranz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, J., NICHOLS, J., and RANSOM,^* J.

OPINION BY BOWES, J.:

Robert Palmer appeals from the judgment of sentence of nineteen to eighteen years incarceration imposed following his convictions for, inter alia , aggravated assault. We affirm.

The facts of this case read like a law school exam. A man is captured on surveillance video extending his arm in a position consistent with firing a gun. At the same time as indicated on the video, a vehicle carrying three persons arrives at an intersection near the gunman's location, and turns down a road. That vehicle is followed by two more cars. The driver of the first car, Danielle Kelsey, is struck in the back with a single bullet, causing significant injuries. No one else is hit. There is no forensic or ballistics evidence to establish the path of the bullet that struck the victim, nor are any other bullets recovered. However, police discover ten fired cartridge casings from the location of the gunman as indicated by the video, all of which were fired from the same weapon. The gunman is identified, arrested, and speaks to police. He asks what his bail would be if the shooting was an accident. What crimes have been committed?

I

Appellant's charges

The Commonwealth charged Appellant with, inter alia , two counts of attempted murder, and two counts of aggravated assault. The crimes identified Ms. Kelsey and John Doe as the respective victims.¹ The statutory text for those crimes reads as follows.² A person is guilty of criminal homicide "if he intentionally, knowingly, recklessly or negligently causes the death of another human being." 18 Pa.C.S. § 2501. A person is guilty of aggravated assault if he:

(1) 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[.]

18 Pa.C.S. § 2702(a)(1). The aggravated assault counts were charged as lesser included offenses of attempted homicide, as those charges were predicated on the same acts. See Commonwealth v. Dale , 836 A.2d 150, 154 (Pa.Super. 2003) ("The conviction for aggravated assault, being a lesser included offense, is supported by the same facts which support Dale's conviction for attempted murder, since the elements of aggravated assault are necessarily included in the offense of attempted murder and merge with it for sentencing purposes.").

Criminal attempt is separately codified at 18 Pa.C.S. § 901, which states, "A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S. § 901(a).

Criminal attempt is a specific-intent crime. Thus, attempted murder required a specific intent to kill. Commonwealth v. Robertson , 874 A.2d 1200, 1207 (Pa.Super. 2005) ("For the Commonwealth to prevail in a conviction of criminal attempt to commit homicide, it must prove beyond a reasonable doubt that the accused with a specific intent to kill took a substantial step towards that goal."). Furthermore, the aggravated assault statutory language includes attempt within its definition, and we therefore apply the language contained within § 901 when analyzing the sufficiency of attempted aggravated assault. See Commonwealth v. Fortune , 68 A.3d 980, 984 (Pa.Super. 2013) (en banc ) ("For aggravated assault purposes, an attempt is found where an accused who possesses the required, specific intent acts in a manner which constitutes a substantial step toward perpetrating a serious bodily injury upon another.") (quotation marks and citation omitted). Specific intent, in turn, is defined as follows:

(b) Kinds of culpability defined.—

(1) A person acts intentionally with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

18 Pa.C.S. § 302.

The trial court granted Appellant's motion for judgment of acquittal at the two counts of attempted homicide. The jury convicted Appellant of the remaining six charges, and the trial court imposed an aggregate sentence of nine to eighteen years incarceration. Appellant filed a timely notice of appeal, and the trial court ordered him to file a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal. The trial court authored its opinion in response, and the matter is ready for review of Appellant's two claims:

A. Is the evidence insufficient as a matter of law to sustain a conviction for aggravated assault, attempt to cause serious bodily injury to a John or Jane Doe, 18 Pa.C.S. § 2702(a)(1), beyond a reasonable doubt because attempt crimes require a specific intent and the Commonwealth failed to prove the requisite men[s] rea ?

B. Did the trial court err in permitting Detective Wearing to testify, over numerous objections, that the person or persons seen in the videos in the area of 17th Street and Susquehanna Avenue on July 16, 2015 at 8:12 p.m., 8:19 p.m., 8:22 p.m., 10:00 p.m., 10:27 p.m., 10:59 p.m., and 11:01 p.m., were the same person appearing in the video at the time of the shooting whereas Detective Wearing improperly offered lay opinion evidence in violation of Pa.R.E. 701 because the testimony was not helpful to the jury, was prejudicial, and intruded upon the jury's independent assessment of a video?

Appellant's brief at 4.

II

Sufficiency of the evidence

Appellant's first claim challenges the sufficiency of the evidence supporting the aggravated assault with respect to John Doe. For purposes of sufficiency of the evidence review, it is undisputed that the Commonwealth established that Appellant was the gunman.³ The following principles govern our review.

Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. [T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. It is within the province of the fact-finder to determine the weight to be accorded to each witness's testimony and to believe all, part, or none of the evidence. The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Williams , 176 A.3d 298, 305–06 (Pa.Super. 2017) (citations and quotation marks omitted).

A

Specific intent, transferred intent, and inchoate crimes

The crimes at issue all required proof of specific intent. There is no dispute that firing ten bullets at a person constitutes a substantial step towards the commission of attempted homicide if directed at a particular person. The debate between the parties focuses on what Appellant was intending to do when he fired those bullets. The key point of contention revolves around the fact that the Commonwealth conceded that Appellant did not target Ms. Kelsey's vehicle, based upon his statement to police:

[Appellant's] purposeful conduct of extending his arm in a shooting position and firing ten shots from a semi–automatic weapon into a populated street proved his intent to cause serious bodily injury to the unidentified person designated "John Doe." That is why he asked Detective Rocks what the consequences would be if shooting Ms. Kelsey was an accident.

Commonwealth's brief at 12.

The fact that the Commonwealth explicitly alleged that Appellant did not intend to hit Ms. Kelsey or her vehicle means that he did not, in the Commonwealth's view, specifically intend to kill her. Rather, Appellant had intended to kill someone else, but the Commonwealth could not identify him. The decision to charge specific intent crimes naming Ms. Kelsey as a victim despite the presence of only one purported victim is permissible under Pennsylvania law. The dissonance is resolved by the doctrine of transferred intent.⁴

In Commonwealth v. Thompson , 559 Pa. 229, 739 A.2d 1023 (1999), our Supreme Court held that transferred intent applies to inchoate crimes. Therein, Donovan Aitken exited his apartment along with his girlfriend and another man, Francisco Forbes. As Forbes crossed the street towards his vehicle, he observed Thompson pull out a gun and shoot in his direction. Forbes, thinking that Thompson was firing at him, ran in a zig-zag pattern to avoid being shot. As it turned out, Thompson was targeting Aitken, who fell to the ground during the melee. Forbes then saw Thompson shoot Aitken several more times, killing him. Thompson was convicted of, inter alia , first-degree homicide for killing Aitken, and attempted aggravated assault with respect to Forbes.

The theory supporting the attempted aggravated assault conviction was that Thompson's specific intent to murder Aitken transferred to Forbes, even though Forbes did not suffer serious bodily injury. Thompson asserted that the evidence was legally insufficient, and claimed that the trial court erroneously issued a...