Com. v. Walker, M. ( 2023 )

J-S31014-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARTIN WALKER :
:
Appellant : No. 188 EDA 2023
Appeal from the Judgment of Sentence Entered October 19, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003247-2020
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 17, 2023
Appellant, Martin Walker, appeals from the judgment of sentence
entered on October 19, 2021. We affirm.
The trial court ably summarized the underlying facts of this case:
On April 13, 2020, at around 10:15 [p.m., the victim, Mark
Johnson (“the Victim”)] was walking to a shop on Girard
Avenue by Carlisle Street to get cigarettes with two of his
friends. [The Victim] entered the shop and his friends waited
outside. Also outside on Girard Sheet, to the west of the
store, was a parked vehicle with [Appellant] in the passenger
seat with a group of guys clustered outside of the vehicle.
One of the men that was with Appellant went into the shop
and exchanged words about a fight that [the Victim] believed
had been resolved a year earlier and exited the store. [The
Victim] paid for his cigarettes and exited the store. As [the
Victim] and his friends started walking east on Girard
Avenue, the men clustered outside of the vehicle Appellant
was sitting in started calling out to [the Victim. The Victim]
stopped in the street of the crosswalk on Carlisle Street and
turned around asking what was going on. As [the Victim]
turned to see what was going on, he noticed six to seven men
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running up on him, including Appellant who had exited the
passenger side of the vehicle he was in.
While panicking, [the Victim] turned to one of his friends and
asked for his friend's firearm. [The Victim] took his friend's
firearm and held it by his side. However, he did not point the
gun at anyone, nor did he use it. While his back was turned,
[the Victim] was shot [in his left calf and in his “groin area
next to [his femoral] artery.” N.T. Trial, 5/12/21, at 59]. He
got up and started running. Someone picked [the Victim] up
and he was transported to the hospital.
Officer Mark Washel received a radio call reporting the
gunshot incident that occurred on Girard Avenue and Carlisle
Street. He arrived on location at 10:17 [p.m.], about one
minute after receiving the call. He immediately went inside
the store to recover video surveillance footage. On video
surveillance retrieved, Officer Washel observed Appellant exit
the passenger side of a white Dodge Magnum. He also
observed Appellant running westbound on Girard [Avenue]
and heading towards 15th Street going southbound after
Appellant was done firing shots at [the Victim]. He observed
the specific articles of clothing Appellant was wearing[,]
which [were] a distinct dark colored jacket with navy blue in
the center with what appeared to be distinct white sleeves;
dark pants with a single thick white stripe down the pants;
and gray, white sneakers. Flash information was put out to
responding officers which included Officer Miguel Diaz and his
partner.
When Officer Diaz and his partner arrived at 16th and Ogden,
they observed Appellant walking with another male. Officer
Diaz and his partner handcuffed Appellant. Officer Diaz
transported Appellant to Temple University Hospital for a
post-incident identification by [the Victim]. As Officer Diaz
was transporting Appellant through the hallways of Temple
Hospital, Appellant was shouting, non-compliant, and
continuously stated that "he does not know me, he's going to
tell you he does not know me, he doesn't know me." When
they arrived in [the Victim’s] hospital room, before [the
Victim] could give any identification, Appellant again
screamed "he does not know me, he's going to tell you he
does not know me, tell him you don't know me" in a loud
voice. [The Victim] stated that he did not know Appellant
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and looked away. Appellant was transported to Central
Detectives for further investigation.
Detective Michael Repici and his partner arrived at the scene
and retrieved [13] 9-millimeter fired cartridge casings and
video surveillance from a store at 1417 Girard Avenue. When
Detective Repici arrived at Central Detectives, he swabbed
Appellant's hands for gunshot residue. Forensic Scientist,
Lacey Shaw from the RJ Lee Group laboratory testified that
based on the swab samples (gunshot SEM kits) taken by
Detective Repici of Appellant's hands, there were positive
component particles of gunshot residue on Appellant's right
and left hands. Appellant did not present any witnesses at
trial.
Trial Court Opinion, 4/10/23, at 1-4 (citations and footnotes omitted).
A jury found Appellant guilty of attempted murder, aggravated assault,
firearms not to be carried without a license, carrying a firearm on the public
streets of Philadelphia, and possessing an instrument of crime.1 On October
19, 2021, the trial court sentenced Appellant to serve an aggregate term of
13-and-one-half to 27 years in prison for his convictions. N.T. Sentencing,
10/19/21, at 41.
Following the nunc pro tunc restoration of his direct appellate rights,
Appellant filed a timely notice of appeal. Appellant raises one claim on appeal:
1. Should Appellant’s judgment of sentence be vacated in
relation to the conviction for attempted murder because
Appellant did not aim at or fire at or hit a vital part of [the
Victim’s] body and thereby Appellant did not exhibit specific
intent to kill, an element of attempted murder, and there is,
thus, insufficient evidence to sustain Appellant’s conviction
for attempted murder?
____________________________________________
1 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 6106(a)(1), 6108, and 907(a),
respectively.
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Appellant’s Brief at 4 (some capitalization omitted).
We review Appellant’s sufficiency of the evidence challenge under the
following standard:
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 [that of] 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.
Commonwealth v. Callen, 198 A.3d 1149, 1167 (Pa. Super. 2018) (citations
and quotation marks omitted).
As we have held, the elements of attempted murder are as follows:
Criminal attempt is separately codified at 18 Pa.C.S.A § 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.A. § 901(a).
Criminal attempt is a specific-intent crime. Thus, attempted
murder requires a specific intent to kill. Commonwealth v.
Robertson, 874 A.2d 1200, 1207 (Pa. Super. 2005) (“For
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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.”).
Commonwealth v. Palmer, 192 A.3d 85, 88 (Pa. Super. 2018) (brackets
omitted). “Specific intent to kill can be established through circumstantial
evidence, such as the use of a deadly weapon on a vital part of the victim's
body.” Commonwealth v. Montalvo, 956 A.2d 926, 932 (Pa. 2008). “The
presumption from the use of a deadly weapon on a vital part of the body arises
from the fact that it is common knowledge that such a use is likely to cause
death and therefore a jury may infer that the intent of the person using such
a weapon in such a manner was to kill.” Commonwealth v. Kluska, 3 A.2d
398, 401 (Pa. 1939).
On appeal, Appellant contends that the evidence is insufficient to
support his attempted murder conviction because the Commonwealth failed
to prove that he possessed the specific intent to kill the Victim. Specifically,
Appellant claims, “he did not shoot at a vital part of [the Victim’s] body,” as
he only targeted the Victim’s legs. Appellant’s Brief at 11. Thus, Appellant
argues, the evidence is insufficient to prove that he had the specific intent to
kill the Victim. Id. As the trial court explained, Appellant’s claim fails:
Viewed in the light most favorable to the Commonwealth, the
evidence at trial demonstrated that after [the Victim] entered
a shop to get cigarettes, a man came into the shop and
exchanged words with him about some fight that occurred a
year prior. When [the Victim] exited the shop and started to
walk to his destination with his friends, a group of six to seven
men started to harass him and began to charge at him.
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Appellant is seen on video surveillance getting out of the
passenger side of a white vehicle that was parked outside of
the shop, running up to [the Victim] and firing shots at [the
Victim], not once, or even three times, but [13] times. This
was also corroborated when Detective Repici arrived at the
scene and found [13 fired cartridge cases]. [The Victim] fell
due to the gunshot wounds, got back up, and proceeded to
run for his life.
. . . [A]lthough [the Victim] may not have been struck or hit
in a vital part of his organ[s,] he was hit [at least twice, with
gunshot wounds to his left calf and his “groin area next to
[his femoral] artery.” N.T. Trial, 5/12/21, at 59.] While [the
Victim’s] injuries may not have been life threatening,
Pennsylvania courts have held that “the necessary intent for
attempted-murder may be inferred from a defendant’s
conduct of taking aim and firing a shot that narrowly misses
the vital organs of another human being.” Commonwealth
v. Jones, 629 A.2d 133, 135 n.2 (Pa. Super. 1993). . . .
Therefore, there was sufficient evidence beyond a reasonable
doubt to prove that Appellant had the requisite mens rea to
form the specific intent to kill and actus reus as it was
established that he took substantial steps when he fired a
deadly weapon at [the Victim 13] times.
Trial Court Opinion, 4/10/23, at 7-8 (some citations omitted).
We agree with the trial court. Here, Appellant ran towards the Victim
and shot at him 13 times, hitting him at least twice, including once near the
Victim’s femoral artery. Viewing this evidence in the light most favorable to
the Commonwealth, the evidence is sufficient to establish that Appellant
possessed the specific intent to kill the Victim, as the evidence establishes
that Appellant intentionally aimed his weapon at the Victim and then
unleashed a sustained volley of gunshots directly at his target, hitting his
target twice. Based upon our precedent, these facts are sufficient to establish
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that Appellant possessed the specific intent to kill the Victim.2
Commonwealth v. Manley, 985 A.2d 256, 272 (Pa. Super. 2009) (“the
evidence reveals that [the defendant] attacked the victim, shooting multiple
shots, five of which hit the victim. The victim was struck in the groin, thigh,
shoulder and twice in the hand. Although none of the bullets hit the victim in
a vital organ, the jury could properly infer the specific intent to kill from these
circumstances”); Commonwealth v. Wyche, 467 A.2d 636, 637 (Pa. 1983)
(“[the defendant] aggressively attacked the victim, shooting four shots, three
of which hit their target. Although the fatal slug entered the victim through
the buttock, the jury could properly infer the specific intent to kill from these
circumstances”). Appellant’s claim on appeal thus fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judge McLaughlin joins.
Judge Stabile concurs in the result.
____________________________________________
2 According to Appellant, the fact that the Victim only suffered gunshot wounds
to his legs proves that Appellant was only aiming at the Victim’s legs and,
thus, that Appellant “did not intend to kill” his target. See Appellant’s Brief
at 11. This claim necessarily fails, as it does not view the evidence in the light
most favorable to the Commonwealth. The mere fact that Appellant only hit
the Victim in his legs does not prove that Appellant was only aiming at the
Victim’s legs. Indeed, since Appellant was shooting at a moving target, at
night, and from some distance away, the jury could have reasonably
concluded that Appellant simply missed his intended, killing shot. See
Manley, 985 A.2d at 272 (“[the defendant’s] poor aim does not constitute a
lack of” specific intent to kill).
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J-S31014-23
Date: 10/17/2023
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