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Commonwealth v. Palmer

Superior Court of Pennsylvania

June 26, 2018


          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.


          BOWES, J.

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

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


         Appellant's charges

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

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]

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

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

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

(b) Kinds of culpability defined.-
(1) A person acts intentionally with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

18 Pa.C.S. § 302.

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

A. Is the evidence insufficient as a matter of law to sustain a conviction for aggravated assault, attempt to cause serious bodily injury to a John or Jane Doe, 18 Pa.C.S. § 2702(a)(1), beyond a reasonable doubt because attempt crimes require a specific intent and the Commonwealth failed to prove the requisite men[s] rea?
B. Did the trial court err in permitting Detective Wearing to testify, over numerous objections, that the person or persons seen in the videos in the area of 17th Street and Susquehanna Avenue on July 16, 2015 at 8:12 p.m., 8:19 p.m., 8:22 p.m., 10:00 p.m., 10:27 p.m., 10:59 p.m., and 11:01 p.m., were the same person appearing in the video at the time of the shooting whereas Detective Wearing improperly offered lay opinion evidence in violation of Pa.R.E. 701 because the testimony was not helpful to the jury, was prejudicial, and intruded upon the jury's independent assessment of a video?

         Appellant's brief at 4.


         Sufficiency of the evidence

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

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

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


         Specific intent, transferred intent, and inchoate crimes

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

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

Commonwealth's brief at 12.

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

         In Commonwealth v. Thompson, 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.

         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 assault, an inchoate crime, its analysis categorically applies to other inchoate crimes such as attempted murder.


         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 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.

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.


         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 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.


         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 ...

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