from the Judgment of Sentence October 28, 2016 In the Court
of Common Pleas of Philadelphia County Criminal Division at
BEFORE: BOWES, J., NICHOLS, J., and RANSOM [*] , J.
Palmer appeals from the judgment of sentence of nineteen to
eighteen years incarceration imposed following his
convictions for, inter alia, aggravated assault. We
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?
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. The statutory text for those crimes
reads as follows. 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
(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.").
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).
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
(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.
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
brief at 4.
of the evidence
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. The following principles govern our
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).
intent, transferred intent, and inchoate crimes
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.
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.
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 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.
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
Id. at 1029-30 (footnote, quotation marks, and
citations omitted) (emphasis in original). Since
Thompson sustained a conviction of attempted
aggravated assault, an inchoate crime, its analysis
categorically applies to other inchoate crimes such as
intent - aggravated assault
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 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.").
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
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
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.
N.T., 8/18/16, at 62-63 (emphases added).
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
intent as applied to an unidentified victim
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). Thus, Appellant argues that he
could not possess a specific intent to cause serious bodily
injury directed 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.
trial court's ruling on attempted homicide
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
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 ...