Com. v. Nascimento, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AVERY MICHAEL NASCIMENTO :
:
Appellant : No. 2569 EDA 2022
Appeal from the Judgment of Sentence Entered September 20, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001096-2022
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JULY 31, 2023
Appellant, Avery Michael Nascimento, appeals from the judgment of
sentence of 10 to 20 years’ incarceration imposed on him after he was
convicted by a jury of attempted murder with serious bodily injury and
aggravated assault.1 For the reasons set forth below, we affirm.
In the early morning hours of January 23, 2022, Appellant shot and
injured his girlfriend (Victim) and fatally shot her former boyfriend (Decedent).
Appellant was charged with first-degree murder and third-degree murder for
the shooting of Decedent, attempted murder with serious bodily injury and
aggravated assault for shooting Victim, and possession of an instrument of
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 901(a), 2502(a), and 1102(c), and 2702(a)(1), respectively.
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crime. These charges were tried to a jury from July 11 to July 13, 2022. At
trial, nine witnesses testified for the Commonwealth: Victim, six police officers
and detectives who investigated the case, and two medical witnesses.
Appellant testified in his own defense and two character witnesses testified on
his behalf.
Victim testified that Appellant was at her house on the night of January
22 to 23, 2022 and that Appellant began pushing her and throwing her into
things when she would not let him look at her cell phone. N.T. Trial, 7/11/22,
at 68-72. She testified that later in this fight, Appellant grabbed her by the
hair, hit her in the head with a gun, choked her, and said to her, “Tonight’s
the night you’re going to die, bitch.” Id. at 74-75, 77-79. Victim testified
Appellant took the phone from her, that Decedent called her, that Appellant
picked up the call and argued with Decedent, and that after Appellant hung
up, Decedent came to her house. Id. at 80-81, 83-88. She testified that
Appellant and Decedent sat down and talked at first, but later began hitting
and punching each other. Id. at 88-97. Victim testified that Decedent wound
up on top of Appellant and that Appellant pulled out his gun and shot Decedent
twice while they were wrestling each other on the floor. Id. at 97-103, 161-
65. Victim testified that she ran out of the house to the house next door and
that while she was on the neighbor’s porch pounding on the door, Appellant
came up to her with the gun and shot her in the hand. Id. at 102-05. She
testified that she said to him, “Avery, stop” and “Why are you doing this?” and
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that he responded “Shut up, bitch” and kept coming toward her and pointing
the gun at her. Id. at 105. Victim testified that she attempted to hide under
furniture on the porch, that Appellant tried to move the furniture away to get
a better view of her and shot her again in her right thigh, and that this bullet
lodged in her thigh and is still in her thigh. Id. at 105-06, 113. Victim testified
that after Appellant shot her the second time, she played dead and that
Appellant shot her a third time, grazing her buttock, and left. Id. at 105-08,
114.
One of the detectives who investigated the scene of the shootings
testified that two fired bullets were found on the neighbor’s porch under the
porch furniture, one of which had human tissue and bone on it and the other
of which had human tissue on it. N.T. Trial, 7/12/22, at 38-42, 49-50. He
testified that live rounds were found on the sidewalk in front of the neighbor’s
porch where a shooter firing at the porch would have been standing and that
this indicated that the gun had jammed and the shooter had to eject those
live rounds in order to be able to shoot again. Id. at 16, 42-44, 51-52;
Commonwealth Ex. 64. A firearms expert also testified that the presence of
live rounds among fired cartridge casings shows that the firearm had
malfunctioned and the shooter had ejected live rounds to keep shooting. N.T.
Trial, 7/12/22, at 136, 139.
The physician who treated Victim’s injuries testified that Victim had
gunshot wounds to her right thigh and right hand and abrasions on her
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buttocks. N.T. Trial, 7/12/22, at 68-72, 85-86. This physician testified that
the hand wound was a significant injury that required hospitalization and
treatment by a hand surgeon and that a gunshot to the thigh can be life
threatening, but that Victim’s thigh wound was not because the bullet did not
hit any major blood vessels. Id. at 70-76, 83. The pathologist who performed
the autopsy on Decedent testified that Decedent had three gunshot wounds,
one from a bullet that entered the left side of the chest, went through the left
lung and heart, exited from the front of the chest and lodged in the right arm,
one from a bullet that entered the front pelvic area and lodged in pelvic bone,
and one from a bullet that entered the back of the neck and exited on the left
side of the neck. Id. at 153, 155-61. The pathologist testified that the chest
wound had darkened area around the entry point that showed that the gun
was against Decedent’s body when it was fired, but that he found no
gunpowder or stippling on the other two wounds that would be present if those
shot were fired within three feet of Decedent. Id. at 157-58, 161-62, 164-
65. The pathologist testified that each of the three gunshot wounds was
sufficient by itself to cause Decedent’s death. Id. at 166, 168-73.
Appellant testified that on the night of January 22 to 23, 2022, he and
Victim argued about her phone, that Victim slapped and kicked him, and that
he pushed her in response. N.T. Trial, 7/12/22, at 263-65, 267-75. Appellant
denied that he choked Victim when they were arguing and fighting and denied
that he grabbed her by the hair or hit her with his gun. Id. at 280-81, 287-
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88. He testified that Decedent called Victim’s phone while he and Victim were
arguing, that he picked up the call, and that Decedent told him to “stop playing
with” him and that Victim was Decedent’s “bitch.” Id. at 277-78. Appellant
testified that after he hung up the phone, Decedent arrived at the house and
pounded on the door. Id. at 278, 281-82. He testified that Victim let
Decedent in, that he and Decedent argued, and that Decedent, who smelled
of alcohol, became angry and started hitting him. Id. at 282-92. Appellant
testified that Decedent knocked him down and landed on top of him, that
Decedent tried to get Appellant’s gun and that two shots went off during the
struggle for the gun, the second of which hit Victim in the hand. Id. at 291-
93. Appellant testified that Decedent continued attacking him and that he
thought Decedent would kill him and shot Decedent in the pelvis. Id. at 293-
94. He testified that he tried to get away, but Decedent was still fighting him
and trying to get the gun, and that he accidently shot Decedent again while
Decedent was grabbing him. Id. at 294, 315, 320-21 335-36. Appellant
testified that he got away after Decedent rolled on his side vomiting, that he
ran out of the house to the neighbor’s house, and that when he saw Victim
jump up from underneath furniture on the neighbor’s porch, he shot at her
once and ran away. Id. at 294-95, 323.
On July 13, 2022, the jury convicted Appellant of attempted murder with
serious bodily injury and aggravated assault and acquitted Appellant of first-
degree murder, third-degree murder, voluntary manslaughter (on which the
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jury was also charged), and possession of an instrument of crime. N.T. Trial,
7/13/22, at 141-43. On September 20, 2022, the trial court sentenced
Appellant to 10 to 20 years’ incarceration for attempted murder and imposed
no sentence for the aggravated assault conviction on the grounds that that
charge merged with the attempted murder conviction. N.T. Sentencing at 12,
45; Disposition-Sentencing Order at 2. This timely appeal followed.
Appellant raises the following single issue in this appeal:
Whether there was sufficient evidence presented at trial to sustain
Appellant’s conviction for attempted first-degree murder where he
shot the victim in non-vital parts of her body from a very close
range and the circumstances surrounding the shooting do not
allow for an inference that he had the requisite intent to kill?
Appellant’s Brief at 4. Our standard of review in a challenge to the sufficiency
of the evidence is well-settled:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the 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. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. 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.
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Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (quoting
Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011)) (brackets
omitted).
A conviction for attempted murder requires the Commonwealth to prove
beyond a reasonable doubt two elements: 1) that the defendant had the
specific intent to kill and 2) that he took a substantial step towards that goal.
Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008);
Commonwealth v. Ligon, 206 A.3d 515, 519 (Pa. Super. 2019);
Commonwealth v. Predmore, 199 A.3d 925, 929 (Pa. Super. 2018) (en
banc). The only element of the offense of attempted murder that Appellant
argues that the evidence was insufficient to prove is the mens rea of specific
intent to kill. Specific intent to kill may be proven from circumstantial
evidence alone. Commonwealth v. Cannavo, 199 A.3d 1282, 1292 (Pa.
Super. 2018); Tucker, 143 A.3d at 964; Commonwealth v. Jackson, 955
A.2d 441, 444 (Pa. Super. 2008).
Here, the evidence showed that Appellant hunted Victim down, walked
up to her, and fired his gun directly at her three times from only a few feet
away, hitting her in the hand, thigh, and buttock. N.T. Trial, 7/11/22, at 104-
08, 110. That evidence was sufficient to satisfy the Commonwealth’s burden
of proof. Aiming a gun directly at a person and firing multiple shots at close
range is sufficient to prove specific intent to kill. Commonwealth v. Holt,
273 A.3d 514, 529-30 (Pa. 2022). Appellant’s argument that this evidence
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was insufficient because his bullets did not hit a vital part of Victim’s body is
without merit. The fact that Appellant did not succeed in hitting Victim in the
chest or head does not make the evidence that he pointed a gun directly at
Victim and fired at her three times insufficient to show intent to kill.
Commonwealth v. Jackson, 392 A.2d 1366, 1368-69 (Pa. 1978) (specific
intent to kill shown where defendant fired a gun at victim in the dark hitting
him in the shoulder); Tucker, 143 A.3d at 964-65 (evidence of specific intent
to kill sufficient where defendant fired three shots at victim and only shot that
hit victim struck him in the thigh); Commonwealth v. Wyche, 467 A.2d 636,
637 (Pa. Super. 1983) (specific intent to kill shown where defendant fired a
gun at the victim multiple times, hitting him in the thigh, hand, and buttock).
Evidence that the defendant shot the victim in the lower legs is
insufficient by itself to prove specific intent to kill where there was no
obstruction or distance that could have adversely affected the defendant’s
aim. Predmore, 199 A.3d at 931-34. That situation, however, is not present
here for two reasons. First, the evidence at trial showed that Appellant’s
ability to shoot Victim was obstructed when he fired the second and third shots
because Victim attempted to protect herself by getting under porch furniture.
N.T. Trial, 7/11/22, at 105-06. Second, unlike the lower legs, the places
where Victim was shot, the hand, thigh, and buttock, are not far from vital
areas of her body. Commonwealth v. Padgett, 348 A.2d 87, 88 (Pa. 1975)
(shot to victim’s arm was “in the general area in which vital organs are
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located” and by itself was sufficient to prove specific intent to kill); Wyche,
467 A.2d at 637.
Moreover, there was other evidence in this case that supported an
inference that Appellant acted with specific intent to kill Victim. Appellant
made efforts to shoot Victim beyond merely firing the gun in her direction.
Victim testified that when she asked Appellant to stop after he shot her in the
hand, he replied “Shut up, bitch” and kept coming toward her pointing the gun
at her and that when she hid under porch furniture, Appellant tried to move
the furniture out of the way to get a better shot at her. N.T. Trial, 7/11/22,
at 104-06. There was also evidence from the live rounds found at the scene,
that Appellant had to eject cartridges from the gun to continue shooting at
Victim. N.T. Trial, 7/12/22, at 16, 42-44, 51-52, 136, 139; Commonwealth
Ex. 64. In addition, Victim testified that Appellant did not leave the scene
until she played dead and that when she and Appellant were fighting earlier
that night, Appellant said “Tonight’s the night you’re going to die, bitch.” N.T.
Trial, 7/11/22, at 75, 105-08. Indeed, Appellant admitted that he felt
disrespected by Victim on the night that he shot her. N.T. Trial, 7/12/22, at
274-75, 302-05.
Because the evidence was sufficient to prove that Appellant acted with
specific intent to kill Victim when he shot her, the Commonwealth satisfied its
burden of proving the elements of attempted murder. Appellant’s sole issue
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in this appeal therefore fails. Accordingly, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2023
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