Com. v. Bryant, J. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JULIAN BRYANT
Appellant No. 1828 WDA 2012
Appeal from the Judgment of Sentence October 29, 2012
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010073-2011
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 13, 2014
Julian Bryant appeals from the judgment of sentence imposed October
29, 2012, in the Allegheny County Court of Common Pleas. Bryant was
sentenced to a term of 20 to 40 years’ imprisonment after a trial court,
sitting without a jury, found him guilty of one count of attempted murder
and two counts of aggravated assault.1 On appeal, Bryant challenges the
sufficiency of the evidence supporting his conviction of attempted murder.
For the reasons below, we affirm.
The facts underlying Bryant’s arrest and conviction are aptly
summarized by the trial court as follows:
On the afternoon of June 18, 2011, the defendant, Julian
Bryant, fired six shots, wounding Kareem “Moose” Howard. The
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1
18 Pa.C.S. §§ 901(a), 2702(a)(1), and (a)(4), respectively.
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victim, Mr. Howard, sustained three gunshot wounds to his
buttocks, one to his arm, one to his hip, and one to his ear. The
incident occurred at approximately 1:20 p.m. near the
intersection of Frankstown Avenue and North Homewood in the
City of Pittsburgh, Allegheny County, Pennsylvania.
[Bryant] had known Mr. Howard for approximately five
years. The two were good friends. Mr. Howard referred to
[Bryant] as “Juls” or “bro.” Mr. Howard was involved with
[Bryant’s] sister, Lateesha Bryant, and is the father of two of her
children.
On the day of the incident, Mr. Howard testified that
[Bryant] crossed the street to approach him and appeared
“raged.” [Bryant] then opened fire on him at a distance of “not
quite” 20 feet after Mr. Howard had pulled a gun on Ms. [Bryant]
during a dispute over the custody of their children.
Witness John Turner, the owner of a barbershop near the
incident, heard a number of shots fired and then saw Mr.
Howard, whom he knew, laying on the ground. Mr. Howard was
shot four (4) times, falling to the ground, and in attempting to
escape, was shot another two times while crawling away. Fired
at point blank range, one shot came close to Mr. Howard’s head,
breaking an earring that he was wearing and damaging the ear.
While crawling away, Mr. Howard picked up a Smith and Wesson
9mm semi-automatic pistol and returned fire in the direction of
the fleeing [Bryant]. As a result of the incident, Mr. Howard was
hospitalized for about eleven days, spending the first four in a
coma. Among other injuries, he sustained a fractured pelvis,
severe damage to the nerves of his right leg, and had to undergo
three surgeries.
While en route to the scene of the incident, Detective
Robert Shaw testified that at approximately 2:24 p.m. he
received a report that a man had been hospitalized with a
gunshot wound to the leg. The man in the hospital was
[Bryant]; the 9mm bullet in his leg matched the Smith and
Wesson pistol allegedly used by Mr. Howard upon returning fire.
Trial Court Opinion, 12/2/2013, at 2-3 (footnote and record citations
omitted).
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Bryant was subsequently arrested and charged with one count each of
attempted murder and persons not to possess firearms,2 and two counts of
aggravated assault. He proceeded to a bench trial in June of 2012. On June
12, 2012, the trial court granted a judgment of acquittal on the weapons
offense, but returned a verdict of guilty on the remaining charges. Bryant
was sentenced, on October 29, 2012, to a term of 20 to 40 years’
imprisonment for the charge of attempted murder. The remaining
aggravated assault convictions merged for sentencing purposes, and this
timely appeal followed.3
The sole issue Bryant raises on appeal challenges the sufficiency of the
evidence supporting his conviction of attempted murder. In particular, he
contends the evidence failed to establish that he possessed a specific intent
to kill Howard when he shot him six times. Rather, he argues, the evidence
established that he only intended to scare Howard for “pulling a gun” on
Bryant’s sister. Bryant’s Brief at 15. Indeed, he contends that “[i]f [he]
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2
18 Pa.C.S. § 6105(a)(1).
3
On December 17, 2012, the trial court ordered Bryant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Thereafter, on January 2, 2013, Bryant’s counsel filed a petition for
extension of time to file a Rule 1925(b) statement since the notes of
testimony from his trial had not yet been transcribed. The trial court
granted the petition, and, on June 12, 2013, Bryant filed a Rule 1925(b)
statement. The trial court subsequently filed an opinion on December 2,
2013.
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wanted to kill Howard when he was standing directly over him, he could
have easily done so.” Id.
Our review of a challenge to the sufficiency of the evidence is well-
settled:
A claim challenging the sufficiency of the evidence presents a
question of law. Commonwealth v. Widmer, 560 Pa. 308, 744
A.2d 745, 751 (2000). We must determine “whether the
evidence is sufficient to prove every element of the crime
beyond a reasonable doubt.” Commonwealth v. Hughes, 521
Pa. 423, 555 A.2d 1264, 1267 (1989). We “must view evidence
in the light most favorable to the Commonwealth as the verdict
winner, and accept as true all evidence and all reasonable
inferences therefrom upon which, if believed, the fact finder
properly could have based its verdict.” Id.Our Supreme Court has instructed:
[T]he facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. 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. Moreover, in applying the above test, the
entire record must be evaluated and all evidence actually
received must be considered. 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. Ratsamy, 594 Pa. 176, 934 A.2d 1233,
1236 n. 2 (2007).
Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013).
Here, Bryant challenges only his conviction of attempted murder.
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Under the Pennsylvania Crimes Code, “[a] person commits
an attempt when, with intent to commit a specific crime, he does
any act which constitutes a substantial step towards the
commission of the crime.” 18 Pa.C.S.A. § 901(a). If a person
takes a substantial step toward the commission of a killing, with
the specific intent in mind to commit such an act, he may be
convicted of attempted murder. Commonwealth v. Dale, 836
A.2d 150, 152 (Pa.Super.2003) (citation omitted); 18 Pa.C.S.A.
§§ 901, 2502. The substantial step test broadens the scope of
attempt liability by concentrating on the acts the defendant has
done and does not any longer focus on the acts remaining to be
done before the actual commission of the crime.”
Commonwealth v. Gilliam, 273 Pa.Super. 586, 417 A.2d
1203, 1205 (1980). The Commonwealth may establish the
mens rea required for first-degree murder, specific intent to kill,
solely from circumstantial evidence. Commonwealth v. Schoff,
911 A.2d 147, 160 (Pa.Super.2006).
In re R.D., 44 A.3d 657, 678 (Pa. Super. 2012), appeal denied, 56 A.3d 398(Pa. 2012). Moreover, “[s]pecific intent to kill may be inferred from the use
of a deadly weapon on a vital part of the victim’s body.” Commonwealth
v. Uderra, 706 A.2d 334, 338 (Pa. 1998), cert. denied, 526 U.S. 1070(1999).
Here, Bryant acknowledges that a specific intent to kill may be inferred
when a defendant shoots a victim in a vital part of his body. He argues,
however, that the inference is not mandatory,4 and, under the particular
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4
See Commonwealth v. Hill, 511 A.2d 171, 178 (Pa. Super. 1986)
(stating that “[w]hen evidence is introduced to overcome or rebut this
presumption, the question of defendant’s intent becomes one for the triers
of fact … [who may] consider the presumption along with all other credible
evidence presented on the issue of intent.”).
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facts of this case, “should not be available.” Bryant’s Brief at 14. Indeed,
Bryant contends the evidence established that his intent was simply to
“scare Howard and warn him … [to stop] threatening Mr. Bryant’s sister [].”
Id. at 15. Further, he claims:
The shots to the buttocks, leg, and arm [were] all to non-vital
parts of Howard’s body. The one shot that was deflected by
Howard’s earring was in the pavement next to Howard. If Mr.
Bryant wanted to kill Howard when he was standing directly over
him, he could have easily done so. Instead, his bullet was fired
into the pavement next to the victim’s head.
Id. at 15.
However, Bryant’s analysis of the evidence views the facts in a light
most favorable to him, and not to the verdict winner, as is required in a
sufficiency of the evidence claim. See Thomas, supra. Here, the evidence
established that Bryant fired four shots at Howard, from less than 20 feet
away, and, after Howard collapsed on the ground, fired two more shots, one
of which was near Howard’s head and damaged his ear. See N.T., 6/11-
12/2012, at 26-27, 38-40. Indeed, as the trial court observed in its opinion:
“That the [v]ictim was not killed by the six shots, singularly or in tandem of
one another, is simply good fortune.” Trial Court Opinion, 12/2/2013, at 5.
Therefore, while an inference of Bryant’s specific intent to kill was not
required, it was permissible and reasonable under the facts of this case.
Accordingly, Bryant’s challenge to the sufficiency of the evidence fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2014
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