Com. v. Palmer, R. , 192 A.3d 85 ( 2018 )

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2018 PA Super 185COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT PALMER :
:
Appellant : No. 3618 EDA 2016
Appeal from the Judgment of Sentence October 28, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010047-2015
BEFORE: BOWES, J., NICHOLS, J., and RANSOM*, J.
OPINION BY BOWES, J.: FILED JUNE 26, 2018
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
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* Retired Senior Judge assigned to the Superior Court.
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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
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1 The Commonwealth proceeded to trial on eight crimes: the aforementioned
four charges, plus carrying a firearm without a license, carrying a firearm in
Philadelphia, and two counts of recklessly endangering another person.
2 Appellant’s argument attaches significance to the trial court’s judgment of
acquittal on the attempted homicide counts. Since the intent to commit
serious bodily injury is subsumed within the intent to kill, we use the terms
interchangeably for ease of reference.
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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
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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
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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.
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3 Appellant’s defense at trial was that he was not the shooter.
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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
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Pennsylvania law. The dissonance is resolved by the doctrine of transferred
intent.4
In Commonwealth v. Thompson, 739 A.2d 1023 (Pa. 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
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4 The doctrine is codified at 18 Pa.C.S. § 303:
§ 303. Causal relationship between conduct and result
....
(b) Divergence between result designed or contemplated
and actual result.--When intentionally or knowingly causing a
particular result is an element of an offense, the element is not
established if the actual result is not within the intent or the
contemplation of the actor unless:
(1) the actual result differs from that designed or
contemplated as the case may be, only in the respect
that a different person or different property is injured
or affected or that the injury or harm designed or
contemplated would have been more serious or more
extensive than that caused; or
(2) the actual result involves the same kind of injury
or harm as that designed or contemplated and is not
too remote or accidental in its occurrence to have a
bearing on the actor's liability or on the gravity of his
offense.
18 Pa.C.S. § 303(b).
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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 transferred intent instruction over his objection since he
did not intend to cause any injury to Forbes. Our Supreme Court disagreed:
Appellant claims that the transferred intent instruction was not
warranted because Forbes was never actually shot and because
Forbes was not an intended victim. As noted above, however, in
order to sustain the conviction for aggravated assault, the
Commonwealth only needed to establish that appellant attempted
to cause serious bodily injury. There is no requirement that the
victim actually be injured. Moreover, appellant's argument that
the transferred intent instruction was not warranted because he
did not intend to shoot Forbes ignores the essence of the
transferred intent doctrine, that is, the person who ultimately is
the victim not be the original intended victim. The transferred
intent theory provides that if the intent to commit a crime exists,
this intent can be transferred for the purpose of finding the intent
element of another crime. The evidence here demonstrated that
appellant shot in the direction of Forbes even though he may have
only intended to shoot Aitken. This evidence was sufficient to
warrant the transferred intent instruction.
Id. at 1029–30 (footnote, quotation marks, and citations omitted) (emphasis
in original). Since Thompson sustained a conviction of attempted aggravated
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assault, an inchoate crime, its analysis categorically applies to other inchoate
crimes such as attempted murder.
B
Transferred intent – aggravated assault
Since attempted aggravated assault and attempted homicide both
require specific intent, there was no legal impediment to charging two counts
of each crime. An additional complexity arises, however, due to the fact that
the aggravated assault crime is disjunctive. Thus, with respect to victim Ms.
Kelsey, the Commonwealth could satisfy the elements of the crime by
establishing, via transferred intent, that Appellant attempted to cause serious
bodily to her, or, in the alternative, that he “caused [serious bodily] injury
intentionally, knowingly or recklessly[.]” For purposes of sustaining that
charge, the jury was required to answer this question: was the bullet that
struck Ms. Kelsey actually meant to strike another person? If so, then the
intent transfers, and the Commonwealth would not even have to establish
serious bodily injury. If, on the other hand, that bullet was fired with no
specific intent to hit a person, then Appellant could be found guilty based on
the fact he actually caused serious bodily injury via reckless behavior
manifesting extreme indifference to the value of human life. Appellant avers
that the jury could not have determined that the bullet was meant for a person
under these circumstances. See Appellant’s brief at 16-17 (“The shooting
could have occurred for any myriad of reasons - trying to stop a moving car
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by shooting the tires, shooting at an attacking stray dog, target practice on a
stop sign, firing warning shots, or even shooting at imagined flying monkeys
during an intoxicated state.”).
Appellant does not contest the sufficiency of the evidence regarding Ms.
Kelsey. At this juncture, we note that the Commonwealth argued, with respect
to Ms. Kelsey, that either theory applied:
Everyone agrees it is the fundamental principle of this case that
Danielle Kelsey was a completely innocent victim, that she had
nothing to do with it, that Mr. Palmer was not trying to shoot her.
And I have to be honest, Mr. Krouse said and he's right, we will
never know who Mr. Palmer was trying to shoot that night, we
won't.
Ladies and gentlemen, that doesn't change what we saw and that
doesn't change what happened. He's charged with shooting
someone, shooting at someone and hitting Danielle Kelsey. The
reason he's responsible for Danielle Kelsey, even though he
wasn't shooting at her it's transferred intent.
The Judge will instruct you on this because what it says is you
don't get to miss and get one for free. Right? If Mr. Krouse is
stands up [sic] and tries to shoot me and shoots Sam, we don't
get to say, oh, but I was shooting for Mr. Krouse. It doesn't count
that way. It's ridiculous, that's what we are talking about here. He
is shooting at someone, we will never know who. It doesn't matter
who because we know what he's doing. We know what he's trying
to do. He's trying to very seriously hurt someone. He happens to
very seriously hurt Danielle Kelsey. It is aggravated assault on the
person Jane Doe or John Doe, we don't know. Maybe an ex-
girlfriend, maybe an ex-friend, maybe a rival, I have no idea.
Whoever it is he's charged with trying to shoot them and cause
them serious bodily injury and he's charged with hitting Danielle
Kelsey and causing her serious bodily injury. That's the standard
for aggravated assault, that's what I want you to focus on.
Attempting to cause serious bodily injury and causing
injury.
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N.T., 8/18/16, at 62-63 (emphases added).5
The trial court instructed the jury on both theories. Id. at 85-89.
Accordingly, the jury could have determined that Appellant specifically
intended to cause serious bodily injury to John Doe, but hit Ms. Kelsey instead.
Alternatively, it could have decided that Appellant, while doubtlessly causing
serious bodily injury, did so recklessly.
III
Specific intent as applied to an unidentified victim
As in Thompson, the theory in this case was that Appellant’s specific
intent transferred to Ms. Kelsey. This case is distinguishable from Thompson,
however, in that there is no readily identifiable victim at whom Appellant was
firing. Appellant emphasizes that distinction. “[O]ne can infer that by firing
a gun at a crowd of people, the intent is to hit or kill at least someone in the
crowd. However, that law does not apply here where there are no facts to
support the existence of a single possible human target, let alone a crowd.”
Appellant’s brief at 19-20 (citation omitted).6 Thus, Appellant argues that he
could not possess a specific intent to cause serious bodily injury directed
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5As indicated by the last sentence, the Commonwealth referenced both types
of aggravated assault with respect to Ms. Kelsey: an attempt to cause serious
bodily injury via transferred intent, and causing actual serious bodily injury.
6 If there is no intended victim, then the Commonwealth’s theory of
transferred intent as to Ms. Kelsey fails, at least in the absence of evidence
that Appellant believed or hoped that a potential victim was present.
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towards anyone. For the following reasons, we disagree and find that the
jury could have determined that Appellant fired into a crowd of people, and,
in turn, possessed the specific intent to cause serious bodily injury to someone
in that crowd.
A
The trial court’s ruling on attempted homicide
We now briefly discuss the trial court’s granting of Appellant’s motion of
acquittal on the attempted homicide charges, since the court’s remarks are
significant to Appellant’s argument. Appellant’s brief at 18-19 (“Not only is
there no evidence that the street was ‘crowded,’ the trial court even
recognized as much when Appellant moved for a judgment of acquittal on the
charge of attempted murder.”). The trial court ruled as follows:
THE COURT: We did have this argument at the motion to quash
and at that time I disagreed and found that there was prima fascia
[sic] evidence based on the ten shots. We are at a different level
now. We are at a point where you would be asking this jury based
on the firing of ten shots and the firing of ten shots only --
[COMMONWEALTH]: And the location of the shots which I think
is particularly significant.
THE COURT: I didn't finish my sentence.
[COMMONWEALTH]: I apologize.
THE COURT: That that shows specific intent to kill. There is no
intended victim here, there is no evidence of an intended victim,
it could just as easily be that the shooter was shooting down the
street of an empty block as it could be, or shooting randomly as
it could be that there was some specific intent [to] kill some
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person. I just find that the Commonwealth's case falls short of
that.
N.T., 8/18/16, at 12-13.
If it were equally likely that Appellant was shooting down an empty
street as it was he fired down a crowded street, then any conviction based on
specific intent to a hit a person would be based on speculation. “When two
equally reasonable and mutually inconsistent inferences can be drawn from
the same set of circumstances, a jury must not be permitted to guess which
inference it will adopt, especially when one of the two guesses may result in
depriving a defendant of his life or his liberty.” Commonwealth v. Hubbard,
372 A.2d 687, 692 (Pa. 1977) (quoting Commonwealth v. Woong Knee
New, 47 A.2d 450, 468 (Pa. 1946)); Commonwealth v. Johnson 818 A.2d
514 (Pa.Super. 2003) (reversing judgment of sentence where “two opposing
and mutually inconsistent inferences could be drawn from the facts presented
herein”).
Appellant presented this argument in his concise statement. “Is the
evidence insufficient as a matter of law . . . because attempt crimes require a
specific intent and in the trial court’s own words, the Commonwealth
presented ‘no evidence of an intended victim[?]’” Concise Statement,
2/17/17, at 2. The trial court responded in its opinion as follows:
In granting Appellant's motion for acquittal on the attempted
murder charges, this Court did not state that the Commonwealth
lacked sufficient evidence to prove a specific intent "to cause
serious bodily injury" to someone. This Court stated that the
Commonwealth lacked sufficient evidence to prove "some specific
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intent to kill some person." Although the specific intent to kill
necessarily includes the intent "to cause serious bodily injury," the
reverse is not necessarily true. The "intent to kill" that is necessary
to prove attempted murder is "greater" than the intent required
to prove attempted aggravated assault - i.e., intent to cause
serious bodily injury. Thus the jury could properly find that the
evidence established a specific intent to commit aggravated
assault but did not establish the "greater" specific intent to kill
someone.
Trial Court Opinion, 4/10/17, at 8 n.10 (emphasis added).
We disagree with the learned trial court’s analysis. There is no doubt
that some acts which are intended to cause serious bodily injury fall short of
an intent to kill. However, the trial court did not grant the judgment of
acquittal on the basis that the evidence was insufficient to find, as a matter of
law, that Appellant’s actions could establish an intent to inflict serious bodily
injury on an unknown person, yet somehow those some acts could not
establish the intent to kill that same person.7 Rather, the trial court explicitly
stated that the Commonwealth failed to produce sufficient evidence that there
was any victim as a matter of fact.
B
Presence of a crowd
Appellant claims that the trial court’s ruling is definitive on this point,
writing:
Here, there was no person or persons present to whom specific
intent could apply. The trial court even believed the block was
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7 We do not discern any difference between an intent to kill and an intent to
inflict serious bodily injury under these facts.
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empty. How its conclusion transformed from "empty" to "crowded"
when the only change was Palmer's challenge to the conviction is
confusing at best. It is also unsupported by the record.
Speculation about intent cannot suffice to establish guilt. The
conviction for aggravated assault on a John or Jane Doe is
insufficient.
Appellant’s brief at 21.
That argument claims that the trial court’s ruling requires this Court to
accept that Appellant was shooting at an empty street as a matter of fact to
which we apply our conclusions of law. “Here, the Commonwealth did not
establish the presence of a person nor that Appellant knew or incorrectly
believed that someone was the target of his assault.” Id. at 12.
We disagree, as that argument misapplies our standard of review. As
the Commonwealth observes, the trial judge was not the finder of fact. We
view the relevant inquiry as encompassing three separate but related
questions: Could the jury find that: (1) A group of people was present; (2)
Appellant fired into that group; and (3) Appellant fired into the group with the
specific intent to inflict serious bodily injury?
Assessed in the light most favorable to the Commonwealth as verdict
winner, the facts establish that there was a group of people and that Appellant
shot in its direction. Appellant fired ten bullets towards the intersection of
17th Street, which runs north to south, and Susquehanna Avenue, which runs
east to west. At the time he fired those bullets, Ms. Kelsey, who was driving
two friends in her vehicle, turned left at the intersection of Susquehanna and
17th Street. Her vehicle was followed by two other cars containing more of
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her friends. Approximately five seconds after making a turn onto 17th Street,
she heard gunshots. N.T., 8/16/16, at 49. She heard the gunshots from
behind her, and felt pain in her back shortly thereafter. These facts constitute
sufficient circumstantial evidence that numerous people were present and that
Appellant fired in their direction.
C
Firing into that group sufficiently establishes the requisite intent
Since we have determined that the jury could find that Appellant fired
into a group of people, the remaining question is whether the jury could
conclude that Appellant did so with the specific intent to cause serious bodily
injury. We discuss the following precedents discussing closely-related
circumstances: Commonwealth v. Lopez, 654 A.2d 1150 (Pa.Super.
1995); Commonwealth v. Fierst, 620 A.2d 1196 (Pa.Super. 1993); and
Commonwealth v. Jackson, 955 A.2d 441 (Pa.Super. 2008). None is on
point; however, we find that elements of these cases apply to the facts herein.
In Lopez, the defendant fired shots into the residence of his ex-
girlfriend, which, unbeknownst to him, was unoccupied at the time. Other
evidence indicated that Lopez wished to kill her. We determined that the
Commonwealth established prima facie evidence of attempted aggravated
assault. Lopez establishes that impossibility is not a defense. “[A] person
who discharges a weapon into an empty residence can commit an aggravated
assault if he possesses the requisite intent to cause serious bodily injury . . .
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even though it is impossible for that person to actually cause such injury
because of the absence of a person inside[.]” Id. at 1152. Herein, unlike
Lopez, there is no evidence that Appellant hoped or believed that a person,
let alone any particular person, was on the street.
In Fierst, the appellant intentionally drove into an oncoming vehicle.
The case establishes that the harm need not be directed at a specific person.
Fierst is distinguishable on the grounds that Fierst knew that there was a
person inside the vehicle, even if he did not know the identities of the
particular occupants.
Finally, in Jackson, this Court applied Thompson, supra. Therein,
three police officers were investigating a shooting that occurred earlier that
day. The victim of that shooting, Charles Wesley, was walking nearby. Five
men, including Jackson, approached Wesley and commenced shooting. The
three officers plus four other bystanders took cover. We concluded that the
evidence was insufficient to sustain seven aggravated assault convictions for
those seven persons.
In his second issue, Appellant questions the sufficiency of the
evidence to sustain his convictions for the aggravated assaults of
Detective Waring, Officer Hood, Officer Allen, Sharee Norton,
Sharron Norton, Shanya Wesley, and Gene Palmer. While
Appellant admits that he intended to shoot Wesley, Appellant
contends that these other persons were simply in the way.
Appellant argues that the Commonwealth failed to establish that
he had the specific intent to cause serious bodily injury to any of
these persons, and thus, the requisite intent for his aggravated
assault convictions is lacking.
....
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[T]he evidence shows that Detective Waring, Officer Hood, Officer
Allen, Sharee Norton, Sharron Norton, Shanya Wesley, and Gene
Palmer were near Appellant's intended victim. The evidence also
shows that Appellant fired a deadly weapon toward them. There
is, however, no other evidence, in the form of circumstances,
actions or words, occurring before, during, or after the shooting,
that tends to demonstrate that Appellant specifically intended to
inflict injury upon these particular persons. Therefore, the only
circumstance in the record from which it may be inferred that
Appellant had the intent to cause these persons serious bodily
injury was his firing a deadly weapon in their direction. Based on
the totality of the circumstances, we conclude that the evidence
was insufficient to establish beyond a reasonable doubt that
Appellant harbored the specific intent to cause serious bodily
injury with a deadly weapon to any of these persons.
Jackson, supra at 445-48.
We nevertheless upheld the convictions based on attempted
aggravated assault, relying on Thompson. “It is an established fact that
Appellant specifically intended to cause serious bodily injury to Wesley with a
deadly weapon. Under the doctrine, Appellant's intent in this regard is
transferred to [the others].” Id. at 450. This case differs from Jackson in
that there was an actual victim therein at whom the shots were directed.
Additionally, in that case, the other victims were identifiable.
There is no doubt that a readily-identifiable victim is sufficient to sustain
the convictions in these cases, but we are not of the view that it is a necessary
component. The jury could find under the totality of the circumstances that
Appellant fired into the group of people with intent to inflict serious bodily
injury upon someone within that group. See Commonwealth v. Matthew,
909 A.2d 1254 (Pa. 2006) (applying totality of the circumstances to determine
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if actions constituted aggravated assault). The most significant circumstantial
evidence in this regard is the fact that Appellant fired ten bullets.
Additionally, Lopez establishes that the focus is on what Appellant
sought to do, as neither legal impossibility nor factual impossibility are
defenses. While Lopez is readily distinguishable in that the evidence
established that Lopez clearly sought to kill a particular person, the focus must
be on what Appellant failed to do as opposed to what he did do. We find that
the jury could infer that Appellant hoped to or believed that he hit someone
in that crowd with one or more bullets. Fierst. It is difficult to accept that
this behavior was designed to do anything other than kill or inflict serious
bodily injury, and the jury was permitted to attach significance to the natural
and probable outcome of that behavior when assessing intent.8 See
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8A number of our cases have discussed similar circumstances in analyzing
whether behavior was sufficiently reckless for purposes of establishing the
completed crime of aggravated assault:
[F]or the degree of recklessness contained in the aggravated
assault statute to occur, the offensive act must be performed
under circumstances which almost assure that injury or death will
ensue. The recklessness must, therefore, be such that life
threatening injury is essentially certain to occur. This state of mind
is, accordingly, equivalent to that which seeks to cause injury.
Examples of such behavior make the distinction clear.
In Commonwealth v. Daniels, 467 Pa. 35, 354 A.2d 538(1976), appellant had fired a gun into a crowd;
in Commonwealth v. Laing, 310 Pa.Super. 105, 456 A.2d 204(1983), appellant drove his car into a crowd, after having aimed
it at an individual; in Scofield, the appellant drove at a
pedestrian. See also, Commonwealth v. Hlatky, 426 Pa.Super.
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Commonwealth v. Fry, 491 A.2d 843, 844-45 (Pa.Super. 1985) (“A fact
finder may find that a person intends the natural and probable consequences
of his actions.”).
D
Analogous authority
Finally, we note that a number of States have adopted a “kill zone”
theory. Briefly stated, the kill zone theory addresses scenarios such as
Thompson and Jackson wherein an assailant specifically intends to kill a
particular person, but in so doing exposes other, unintended targets to the
same risk of death. That theory describes the intent as concurrent instead of
transferred:
California cases that have affirmed convictions requiring the intent
to kill persons other than the primary target can be considered
“kill zone” cases even though they do not employ that term.
In People v. Vang (2001) 87 Cal.App.4th 554, 563–565, 104
Cal.Rptr.2d 704, for example, the defendants shot at two occupied
houses. The Court of Appeal affirmed attempted murder charges
as to everyone in both houses—11 counts—even though the
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66, 626 A.2d 575 (1993); Commonwealth v. Rohach, 344
Pa.Super. 229, 496 A.2d 768 (1985). In each of these instances,
the defendant could reasonably anticipate that serious bodily
injury or death would be the likely and logical consequence of his
actions. In each case, the consequence was ignored.
Commonwealth v. O'Hanlon, 653 A.2d 616, 618 (Pa. 1995). As discussed
at length supra, the aggravated assault statute is disjunctive. We do not
interpret the cases describing recklessness as applied to completed crimes of
aggravated assault to foreclose the possibility that some behavior is so
manifestly reckless that a jury could determine the behavior was specifically
intended to commit serious bodily injury when examining the inchoate crime
of attempted aggravated assault.
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defendants may have targeted only one person at each house.
“The jury drew a reasonable inference, in light of the placement
of the shots, the number of shots, and the use of high-powered,
wall-piercing weapons, that defendants harbored a specific intent
to kill every living being within the residences they shot up.... The
fact they could not see all of their victims did not somehow negate
their express malice or intent to kill as to those victims who were
present and in harm's way, but fortuitously were not killed.”
This case permits—virtually compels—a similar inference. Even if
the jury found that defendant primarily wanted to kill Wilson
rather than Wilson's passengers, it could reasonably also have
found a concurrent intent to kill those passengers when defendant
and his cohort fired a flurry of bullets at the fleeing car and thereby
created a kill zone. Such a finding fully supports attempted murder
convictions as to the passengers.
People v. Bland, 48 P.3d 1107, 1118–19 (Ca. 2002) (footnote and some
citations omitted, emphasis in original).
The “kill zone” theory thus rejects Thompson and the notion that
transferred intent applies to inchoate crimes.9 But see State v. Dean, 54
____________________________________________
9 In Jackson, we urged our Supreme Court to revisit the application of
transferred intent to specific intent crimes. We add our voice to that request.
As discussed at length supra, the application of transferred intent to inchoate
crimes is confusing. Herein, the Commonwealth charged Appellant with
specifically intending to kill Ms. Kelsey, while admitting that Appellant did not
specifically intend to kill Ms. Kelsey.
In this respect, we believe that the kill zone theory may represent a more
logical approach to situations such as Thompson and Jackson. Relatedly,
transferred intent can still supply the necessary intent for a completed crime,
i.e., where the unintended target actually dies, and that remains true even
when the actual target is murdered. See Henry v. State, 19 A.3d 944, 951
(Md. 2011) (rejecting notion that transferred intent is “used up” after the
intended target is killed; “We agree with the Supreme Courts of California,
Connecticut, and New Jersey, as well as with the above cited federal courts,
that the doctrine of transferred intent is fully applicable where both the
intended victim and an unintended victim are killed.”)
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N.E.3d 80 (Oh. 2015) (rejecting Bland; “We hold that the doctrine of
transferred intent was properly applied to the attempted-murder charges.”).
Under the logic of the kill zone theory, the prosecution may only charge the
inchoate crime of attempted murder for each targeted victim:
One difference regarding intent to kill does exist between murder
and attempted murder. A person who intends to kill can be guilty
of the murder of each person actually killed, even if the person
intended to kill only one. The same is not necessarily true
regarding attempted murder. Rather, guilt of attempted murder
must be judged separately as to each alleged victim. But this is
true whether the alleged victim was particularly targeted or
randomly chosen. As the district attorney aptly summarizes in this
case, “A defendant who intends to kill one person will be
liable for multiple counts of murder where multiple victims
die, but only one count of attempted murder where no one
dies.” But when no one dies that person will be guilty of
attempted murder even if he or she intended to kill a random
person rather than a specific one.
People v. Stone, 205 P.3d 272, 278–79 (Ca. 2009) (emphasis added,
quotation marks and citations omitted).
In Stone, the Supreme Court of California addressed a factual situation
similar to the circumstances herein, in that the prosecutor, like the
Commonwealth here, informed the jury that the person Stone intended to kill
was unknown. “[I]n his argument to the jury, the district attorney agreed he
had not proven that defendant intended specifically to kill [the victim named
in the charges] rather than someone in the group of 10 persons.” Id. at 277.
(emphasis in original). Stone noted that the kill zone theory would thus not
apply since that theory requires that there be a particular target. Stone
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nevertheless concluded specific intent to kill could be found. We find the
following discussion persuasive:
Can a person who shoots into a group of people, intending to kill
one of the group, but not knowing or caring which one, be
convicted of attempted murder? Yes. The mental state required
for attempted murder is the intent to kill a human being, not
a particular human being.
....
Now that we consider the question, we conclude that a person who
intends to kill can be guilty of attempted murder even if the person
has no specific target in mind. An indiscriminate would-be killer is
just as culpable as one who targets a specific person. One
of Bland's kill zone examples involved a bomber who places a
bomb on a commercial airplane intending to kill a primary target
but ensuring the death of all passengers. We explained that the
bomber could be convicted of the attempted murder of all the
passengers. But a terrorist who simply wants to kill as many
people as possible, and does not know or care who the victims will
be, can be just as guilty of attempted murder.
....
We explained in Bland that difficulties can arise when deciding
whether a person can be convicted of the attempted murder of an
untargeted person in addition to the murder or attempted murder
of the target, and regarding how many attempted murder
convictions are permissible. After all, the world contains many
people a murderous assailant does not intend to kill. But this case
does not involve such difficulties. Defendant was not charged with
the attempted murder of all the world, or even everyone in the
group at which he fired, but only of one attempted murder.
Whatever difficulties exist in deciding how many attempted
murders a would be indiscriminate killer has committed do not
exist here.
Id. at 274; 278 (emphases in original; quotation marks and citations omitted).
For the reasons set forth supra, we find that the jury could determine
that Appellant was guilty of one attempted aggravated assault. Whatever
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difficulties there may be in deciding exactly how many attempt crimes may lie
in these scenarios, that problem does not exist here.10 It does not matter
whether Appellant’s intent was generalized or specific with respect to his
target. It matters only that he had a specific intent to inflict serious bodily
injury upon someone. The jury could determine that he did, and Appellant’s
first claim fails.
IV
We now address Appellant’s second claim, which concerns the trial
court’s overruling his objections to testimony by Detective Wearing during the
presentation of video surveillance testimony. Appellant urges this Court to
find that “the trial court allowed a detective to offer lay opinion evidence in
violation of Pa.R.E. 701 regarding the identity of individuals seen in a video
because it was not based upon his own perceptions, not helpful to the jury,
and prejudicially altered the independent determination by the jury.”
Appellant’s brief at 22.
The admission of evidence is committed to the sound discretion of
the trial court, and a trial court’s ruling regarding the admission
of evidence will not be disturbed on appeal unless that ruling
reflects manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support to be clearly
erroneous.
____________________________________________
10For example, under Thompson the facts would presumably support, at
minimum, attempt charges for the other two passengers in Ms. Kelsey’s
vehicle, plus the occupants of the vehicles following Ms. Kelsey.
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Commonwealth v. Akrie, 159 A.3d 982, 986–87 (Pa.Super. 2017) (citation
omitted).
Here, Appellant claims that, during trial, Detective Wearing “narrated
the video” recovered from the deli and “opine[d] on the similarity and identity
of the person seen in each video clip.” Appellant’s brief at 22. Appellant
maintains that, instead, “[t]he correct method would have been to play the
portion of the video showing the shooting, and have the detective describe
the time, date, locations, and the directions of movements of the person seen
in the video. . . . That is not what the Commonwealth did.” Id. at 23. The
Commonwealth answers that “Detective Wearing’s testimony about the video
. . . was not opinion evidence, but merely explained the basis for [Appellant]’s
arrest, the DNA testing of the drugs, and [Appellant]’s question about what
would the consequences be if the shooting were an accident.”11
Commonwealth’s brief at 16. The trial court responded to the claim in its
opinion as follows:
Detective Wearing testified that he physically investigated the
shooting scene and surrounding neighborhood, and obtained
video footage of the area from the time of the shooting. While the
jury viewed the videos, Detective Wearing placed the footage in
context by describing the intersection that was videotaped, the
camera locations, the location of Ms. Kelsey when she was shot,
the location of the fired cartridge casings, the location of the
narcotics, and the location of the “suspect” alleged to be
Appellant. Defective Wearing further testified that immediately
after viewing the videos on the day following the shooting, he saw
____________________________________________
11Drugs were found near the location of the bullet casings. Appellant’s DNA
was discovered on the drugs.
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Appellant in the shooting area and determined he was the shooter
shown in the videotapes.
Overall, Detective Wearing’s testimony was relevant to the jury’s
understanding of the timing of events shown on the videos, the
location of the shooter when he fired the gun, the location of the
victim (Ms. Kelsey) in relation to the shooter, and the location of
Appellant’s DNA in relation to where the gun was fired. See e.g.
[Commonwealth v. Cole], 135 A.3d 191, 196 [(Pa. Super.
2016)] (finding that a detective’s video narration “was relevant to
the jury’s understanding of the timing, the actors, and the location
of events depicted in the video.”). Detective Wearing’s testimony
also was relevant as an explanation to the jury of how and why
the detectives developed Appellant as the prime suspect on the
day after the shooting; why they compared his DNA to the DNA
on the narcotics baggie recovered near the cartridge casings; and
why they interviewed Appellant about the shooting and the videos.
“Once evidence is found to be relevant, it will be inadmissible only
if its probative value is substantially outweighed by the danger of
unfair prejudice or confusion.” Commonwealth v. McFadden,
[156 A.3d 299] (Pa. Super. []) (citations omitted here)[, appeal
denied, 170 A.3d 993 (Pa. 2017)]. “Unfair prejudice is a tendency
to suggest a decision on an improper basis or to divert the jury’s
attention away from its duty of weighing the evidence impartially.”
Id. (citing Pa. R.E. 403). “The trial court will be reversed only if
an error in the admission of evidence contributed to the verdict.”
Id.The core dispute in this case was not whether Appellant ever
appeared on the video footage from the evening of the shooting.
[Detective] Rocks testified that although Appellant denied he was
shown on video shooting a gun, Appellant admitted the videos
showed him earlier that evening in the shooting area. DNA
evidence also placed Appellant at the location of the fired cartridge
casings, and the videos themselves convincingly demonstrate that
Appellant was captured on camera in several of the videos’
timeframes.
The central dispute was whether it was Appellant, wearing a dark-
colored jacket, who appeared on video around 11:00 p.m. when
the shooting occurred. [Detective] Rocks testified that Appellant
denied he was the “suspect” who allegedly shot Ms. Kelsey in the
11:00 p.m. portion of the videos, and Appellant’s trial counsel
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effectively cross-examined Detective Wearing regarding his
testimony that the videos showed the “same suspect” shooting a
gun. During closing arguments, defense counsel again contested
that the person captured on video around 11:00 p.m., allegedly
shooting a gun, was Appellant.
When viewing the testimony in its overall context, it is clear that
the jury knew exactly what issue it was charged with determining;
in fact the very first question from the jury was a request to view
the video again. Detective Wearing did not induce a verdict on any
improper basis nor did his testimony “divert the jury’s attention
away from its duty of weighing the evidence impartially.” Pa. R.E.
403 (comment). Rather, the issue of the shooter’s identity was
fairly placed before the jury for its impartial determination[.]
Trial Court Opinion, 4/10/17, at 11-14 (citations to the record omitted).
We agree with the trial court’s assessment of Detective Wearing’s
testimony and therefore must decide whether it is properly classified as
opinion testimony. “Concededly, the division whether testimony constitutes
fact or opinion may be difficult, for ‘there is no litmus test for fact versus
opinion.” Bucchianeri v. Equitable Gas Co., 491 A.2d 835, 839 (Pa.Super.
1985) (citations and internal quotation marks omitted). “Fact testimony may
include opinion or inferences so long as those opinions or inferences are
rationally based on the witness’s perceptions and helpful to a clear
understanding of his or her testimony.” Crespo v. Hughes, 167 A.3d 168,
182 (Pa.Super. 2017).
Herein, Detective Wearing merely testified that he identified the shooter
by finding and watching the video surveillance of the shooting, then examining
earlier portions of the video for other instances where the suspect appeared.
As the Commonwealth asserted, Detective Wearing’s testimony about the
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surveillance videos explained the basis for Appellant’s arrest, the DNA testing
of the drugs, and Appellant’s question about what the consequences would be
if the shooting were accidental. Thus, Detective Wearing’s testimony about
the videos was based upon his perception of them, placed his subsequent
actions in context, and was helpful in allowing the jury to reach a clear
understanding of all his testimony. Crespo, supra at 182. Hence, his fact
testimony permissibly included non-expert opinions and was properly
admitted.
Furthermore, we note that the videos had little relevance if Appellant
was not the person appearing at the times highlighted by the Commonwealth.
The jury was obviously aware that the Commonwealth believed that the
person was Appellant, and it was the jury’s duty to determine if the
Commonwealth proved that fact beyond a reasonable doubt. The jury itself
watched the videos, and was free to reach a different conclusion if it disagreed
with Detective Wearing’s conclusion that it was Appellant depicted on the
video at specific moments in the footage. We therefore find no abuse of
discretion.
Judgment of sentence affirmed.
Judge Nichols joins the opinion.
Judge Ransom files a concurring dissenting opinion.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/18
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