Com. v. Jones, B.

J-S42011-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRUCE DEWAYNE JONES :
:
Appellant : No. 414 WDA 2022
Appeal from the Judgment of Sentence Entered September 6, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000928-2019
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: January 19, 2023
Bruce DeWayne Jones appeals nunc pro tunc from his September 6,
2021 judgment of sentence of eight and one-half to twenty years of
incarceration imposed after a jury found him guilty of attempted homicide,
firearms offenses, criminal mischief, and multiple counts of recklessly
endangering another person (“REAP”) and aggravated assault. We affirm.
The trial court summarized the factual history of this matter as follows:
On December 22, 2018, Vanessa Maison, Dustin Johnson, and
Carter Smith went out to a party at a fire hall and then to Alibis
Bar in Redstone Township, Fayette County. After they left the bar,
they went to . . . a Christmas party[.] The three friends were
traveling that night in Mr. Johnson’s gray 2018 Jeep Renegade,
which he had just bought earlier that month.
The three were at [the Christmas party] for about an hour to an
hour-and-a-half, mingling with other partygoers . . . . All three
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* Retired Senior Judge assigned to the Superior Court.
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friends encountered Appellant that evening although none were
[sic] acquainted with him before the party. All three were able to
identify Appellant during trial.
Sometime around midnight, Appellant was in the kitchen, singing
or rapping over the music that was playing. Mr. Smith laughed or
smirked at something that Appellant sang/rapped, and Appellant
asked him what was funny and proceeded to “get smart” with him.
Mr. Smith told Appellant that his performance was not good, and
the two began to argue.
At about the same time, Mr. Johnson was preparing to leave. He
first saw Ms. Maison and told her he was leaving. He then saw
Mr. Smith and Appellant in the kitchen and told Mr. Smith that he
was leaving. Mr. Johnson then headed outside to his car and got
in the driver’s seat. Ms. Maison followed him and went to the front
passenger seat. Mr. Smith followed behind her and Appellant was
behind him, still arguing . . . as they walked out of the house.
Mr. Smith testified that, once outside, he heard Appellant say
something like, “You better get out of here,” and call him a racial
slur. He then saw Appellant pull out a semi-automatic pistol and
hold it across his own chest. Mr. Smith responded, “You really
need a fucking gun?” and began walking away.
As he walked away, he heard a gunshot. He got in the rear
passenger’s side seat of the car, behind Ms. Maison, and saw
Appellant shoot [the front passenger] door twice. All three of the
friends heard more popping sounds, and Mr. Johnson sped off.
Mr. Smith testified that there were shots fired at the back of the
vehicle as they drove away. Neither Mr. Johnson nor Ms. Maison
saw Appellant fire the weapon, but both testified that he was the
only person that had followed them all outside. Mr. Smith did
testify that he saw Appellant fire the weapon. Mr. Johnson also
testified that nobody in their group had a gun with them.
After they sped off in Mr. Johnson’s vehicle, Mr. Smith exclaimed
that he had been shot, a wound he sustained to the upper right
buttock. Mr. Johnson drove to Mr. Smith’s house, and Mr. Smith
afterward had his father take him to Uniontown Hospital where he
was treated for his injury. . . .
Several Pennsylvania State Troopers involved in the investigation
testified at trial. Corporal Richard Hunter took photographs of the
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damage to the 2018 Jeep Renegade the following day. He
described the bullets that were found in the vehicle and testified
that there was blood on the carpet of the back seat. Mr. Johnson
later testified that the damage to his vehicle totaled around
$7,200. Corporal Hunter also testified that he found bullet casings
outside of the [location of the Christmas party].
Trooper Adam Janosko also investigated the incident and was
involved in determining that Appellant was the one who fired the
gun. He also testified that no weapon was recovered, but the
evidence suggested that a .380-caliber semi-automatic pistol was
used. Troop Janosko also testified that Appellant did not have a
license to carry a concealed weapon, and there was a stipulation
that Appellant was not permitted to possess a firearm because of
a prior adjudication.
Trial Court Opinion, 5/27/22, at 3-5 (cleaned up).
Appellant was arrested and charged with the aforementioned offenses.
Pertinent to our disposition, we note that neither the attempted homicide
charge nor any of the aggravated assault charges related to Mr. Johnson and
Ms. Maison, but were brought only as to Mr. Smith. Appellant was also
charged with possession of firearm prohibited.
Following a jury trial held on August 6 and 7, 2019, Appellant was found
guilty of all charges. On September 6, 2019, the trial court sentenced him to
an aggregate term of eight and one-half to twenty years of imprisonment. No
post-sentence motions were filed. Appellant filed an initial, timely direct
appeal and submitted a concise statement of errors pursuant to Pa.R.A.P.
1925(b) while represented by counsel. Following the completion of a Grazier
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hearing, Appellant elected to proceed pro se on appeal.1 See N.T. Grazier
Hearing, 4/17/20, at 2-18. Ultimately, the appeal was dismissed after
Appellant failed to file an appellate brief. See Order, 6/9/21, at 1.
Thereafter, Appellant filed a timely, pro se petition for relief pursuant to
the Post-Conviction Relief Act (“PCRA”). Counsel was appointed and an
amended petition was submitted, which alleged prior counsel had been
ineffective by failing to raise several issues in Appellant’s counseled Rule
1925(b) statement. The Commonwealth did not oppose the relief sought. On
March 17, 2022, the PCRA court granted Appellant’s petition and reinstated
his direct appellate rights. Thereafter, he filed a timely notice of appeal nunc
pro tunc and submitted a supplemental Rule 1925(b) statement. The trial
court filed a revised Rule 1925(a) opinion addressing these new issues.
Appellant has raised the following issues for our consideration:
1. Was the evidence presented at trial by the Commonwealth
sufficient to establish the elements of attempted homicide;
specifically that [Appellant] acted with a specific intent to kill?
2. Was the evidence presented at trial by the Commonwealth
sufficient to establish the elements of aggravated assault;
specifically was sufficient evidence presented that [Appellant]
fired a handgun or other firearm in the direction of the alleged
victim or that the alleged victim sustained any wound which
would constitute “serious bodily injury”?
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1 See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (“When a
waiver of the right to counsel is sought at the post-conviction and appellate
stages, an on-the-record determination should be made that the waiver is a
knowing, intelligent, and voluntary one.”)
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3. Did the trial court err as a matter of law by allowing unqualified
testimony of medical opinion?
4. Did the trial court err as a matter of law by allowing unqualified
expert opinion testimony in the field of forensic investigation?
Appellant’s brief at 1-2 (unpaginated; cleaned up).2
Appellant’s first two appellate issues concern the sufficiency of the
Commonwealth’s evidence. We will bear in mind the following well-
established legal principles in considering these arguments:
Our standard of review in assessing whether sufficient evidence
was presented to sustain an appellant's conviction 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 [this] 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
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2 Despite spanning nearly three hundred pages, Appellant’s combined brief
and reproduced record are not properly paginated pursuant to Pa.R.A.P. 2173.
This omission largely renders the tables of contents and authorities pursuant
to Pa.R.A.P. 2174 irrelevant. Moreover, given the length of this submission,
Appellant has also violated Pa.R.A.P. 2171(b), which requires that the brief
and reproduced record be bound separately if the filings exceed 100 pages in
combined length. Relatedly, Appellant has not included a certificate of
compliance attesting that his thirty-six-page brief complies with the length
requirements set forth by our Rules of Appellate Procedure. See Pa.R.A.P.
2135(a)(1). Finally, Appellant’s brief was filed more than one week late.
We admonish counsel and remind him that briefs and reproduced records must
“conform in all material respects with the requirements” of the Pennsylvania
Rules of Appellate Procedure “as nearly as the circumstances of the particular
case will admit, otherwise they may be suppressed, and, if the defects are in
the brief or reproduced record of the appellant and are substantial, the appeal
or other matter may be quashed or dismissed.” Pa.R.A.P. 2101. Nonetheless,
we decline to dismiss this appeal.
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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. Boyer, 282 A.3d 1161, 1171 (Pa.Super. 2022) (cleaned
up).
In his first claim for relief, Appellant has challenged his conviction for
attempted homicide on the grounds that the Commonwealth did not adduce
sufficient evidence of his specific intent to kill Mr. Smith. See Appellant’s brief
at 9-10 (arguing that the Commonwealth’s evidence “only established that
Appellant fired a firearm at the 2018 Jeep Renegade which Mr. Smith was
inside”); see also 18 Pa.C.S. §§ 901(a), 2502. In order for a defendant to
be found guilty of attempted homicide, the Commonwealth must “establish
the mens rea required for first-degree murder, specific intent to kill[.]”3
Commonwealth v. Fortson, 165 A.3d 10, 15 (Pa.Super. 2017) (cleaned up).
This burden may be satisfied by circumstantial evidence. Id. Where the
defendant does not “verbalize the reasons for his actions, we are forced to
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3 Accordingly, “the crimes of attempted murder in the second degree and
attempted murder in the third degree do not exist.” Commonwealth v.
Predmore, 199 A.3d 925, 929 n.1 (Pa.Super. 2018) (en banc).
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look to the act itself to glean the intentions of the actor.” Commonwealth
v. Hall, 830 A.2d 537, 542 (Pa. 2003) (citation omitted). To the extent “the
intention of the actor is obvious from the act itself, the finder of fact is justified
in assigning the intention that is suggested by the conduct.” Id. Thus, we
may “infer that one intends the natural and probable consequences of his
acts[.]” Commonwealth v. Gease, 696 A.2d 130, 133 (Pa. 1997).
Viewed in the light most favorable to the Commonwealth, the evidence
at trial demonstrated that an argument erupted between Appellant and Mr.
Smith, which escalated as Mr. Smith and his friends left the party See N.T.
Trial, 8/6/19, at 80-82. As Mr. Smith and his friends reached the Jeep,
Appellant referred to Mr. Smith using a racial epithet while holding a “semi-
automatic pistol” against his chest. Id. at 82. Then, Appellant aimed his
firearm at the general area of the vehicle in which Mr. Smith was seated and
discharged it several times. Id. at 39-40, 47, 100. One of the bullets struck
and injured Mr. Smith. Id. at 85, 109-10. Appellant stipulated that he was
prohibited from possessing firearms. See N.T. Trial, 8/7/19, at 165-66.
This evidence was sufficient to establish Appellant’s specific intent to kill
Mr. Smith. As a logical starting point, it bears noting that “[a] gun is a lethal
weapon; pointing it towards a person, and then discharging it, speaks volumes
as to one’s intention.” Commonwealth v. Hall, 830 A.2d 537, 543 (Pa.
2003). Indeed, the simple fact that Appellant was “illegally armed” with a
firearm on the night in question is indicative of his specific intent to kill as a
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matter of law. See Commonwealth v. Fortson, 165 A.3d 10, 16 (Pa.Super.
2017) (citing 18 Pa.C.S. § 6104). We also derive guidance from
Commonwealth v. Cross, 331 A.2d 813 (Pa.Super. 1974), wherein this
Court upheld a defendant’s attempted homicide conviction under similar
circumstances. Following a personal, long-standing “feud,” Cross attempted
to shoot the victim, who was seated in the passenger seat of an automobile.
The bullet struck the vehicle at “a height near the stomach” of the victim, but
“narrowly missed.” Id. at 813-14. Based upon these facts, this Court held it
was “entirely proper” to conclude that Cross “did intend to kill as required
under the statute, for his deliberately fired shot narrowly missed striking a
vital part of his target.” Id. at 815
Here, as in Cross, Appellant’s shooting of Mr. Smith was the product of
a personal dispute. Specifically, Appellant’s actions were the culmination of a
heated argument with Mr. Smith that included menacing language and
gestures that generally evinced violent intent on Appellant’s part. While this
dispute was not a protracted, familial matter as in Cross, it is well-established
that the requisite intent to kill another “may be formed in an instant.”
Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa.Super. 2010). Also as in
Cross, Appellant deliberately attempted to shoot Mr. Smith, as confirmed by
the bullet hole that is lined up with Mr. Smith’s seat in the vehicle. Moreover,
unlike in Cross, Mr. Smith was actually struck by one of Appellant’s bullets
and sustained an injury. While this injury did not threaten Mr. Smith’s life,
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“[t]he 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.” 4
Commonwealth v. Jones, 629 A.2d 133, 135 n.2 (Pa.Super. 1993).
Under these circumstances, we have little trouble concluding that an
individual who deliberately aims and fires a pistol multiple times at the
occupant of a car and succeeds in wounding him has manifested a specific
intent to kill. See Cross, supra; Jones, supra. No relief is due.
Appellant’s second sufficiency claim concerns his aggravated assault
convictions, which he challenges upon the same grounds as his attempted
homicide conviction. See Appellant’s brief at 11 (unpaginated) (“[T]he
Commonwealth’s mens rea evidence relevant to aggravated assault is
insufficient for the same reasons as it was insufficient relevant to the offense
of [a]ttempted [h]omicide.”). Instantly, Appellant was charged and convicted
of aggravated assault at 18 Pa.C.S. § 2702(a)(1) (“A person is guilty of
aggravated assault if he attempts to cause serious bodily injury to another, or
causes such injury intentionally[.]”) and 18 Pa.C.S. § 2702(a)(4) (“A person
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4 It is practically axiomatic that “the use of a deadly weapon directed at a
vital organ of another human being justifies a factual presumption that the
actor intended death[.]” Commonwealth v. Predmore, 199 A.3d 925, 931
(Pa.Super. 2018) (en banc). However, “the absence of the use of a deadly
weapon against a vital part of a victim’s body does not preclude a finding of
intent to kill, it only precludes the use of the presumption.” Id. at 932. Thus,
while we are not prepared to characterize Mr. Smith’s injuries in this matter
as implicating a “vital organ,” such a conclusion is not dispositive.
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is guilty of aggravated assault if he attempts to cause or intentionally or
knowingly causes bodily injury to another with a deadly weapon[.]”).
The same conduct discussed above that established Appellant’s specific
intent to kill Mr. Smith is also sufficient to establish that Appellant possessed
the intent to cause “serious bodily injury” and “bodily injury” to Mr. Smith.
See 18 Pa.C.S. § 2702(a)(1), (4). Accordingly, the Commonwealth’s offer of
proof with respect to Appellant’s mens rea regarding attempted homicide was
also legally sufficient as a matter of law to support Appellant’s convictions for
aggravated assault. Id. Thus, Appellant’s second claim merits no relief.
Appellant’s third issue concerns testimony offered by Trooper Janosko,
who opined as follows with respect to Mr. Smith’s injury: “[H]e had a wound
to his right buttock that appeared to be what we call a through and through
wound. Which means the bullet entered and it passed right through his body
and went whenever it would of went.” N.T. Trial, 8/6/19, at 110. Appellant
characterizes this as “unqualified medical testimony” and argues that Trooper
Janosko exceeded the scope of speculation permitted by lay witnesses
pursuant to Pa.R.E. 701 and 702. See Appellant’s brief at 26-30.
It is axiomatic that “[i]n order to preserve an issue for review, a party
must make a timely and specific objection at trial.” Commonwealth v.
Konias, 136 A.3d 1014, 1022 (Pa.Super. 2016). Accordingly, “[t]he absence
of a contemporaneous objection below constitutes a waiver of the claim on
appeal.” Commonwealth v. Rodriguez, 174 A.3d 1130, 1145 (Pa.Super.
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2017) (cleaned up); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
Instantly, our review of the transcripts reveals that no objection was
entered at trial with respect to Trooper Janosko’s complained-of testimony
describing Mr. Smith’s wound. Accordingly, this claim is waived. Id.Finally, Appellant challenges various aspects of the testimony of Trooper
Janosko and Corporal Hunter concerning the forensic evidence in the case.
See Appellant’s brief at 30 (“[T]he [t]rial [c]ourt erred as a matter of law . . .
by allowing the introduction at trial of unqualified opinion testimony proffered
by [Trooper Janosko] and [Corporal Hunter] in the field of forensic
investigations and/or analysis.”). Our review of the certified transcripts,
however, confirms that no contemporaneous objections were entered with
respect to the various aspects of testimony that Appellant references in this
argument. Compare Appellant’s brief at 30-36 with N.T. Trial, 8/6/19, at
34-47, 106-32. Thus, these allegations are waived for failure to raise them in
the trial court. See Pa.R.A.P. 302(a); Rodriguez, supra at 1145.
As Appellant has advanced no preserved claim that merits relief in this
appeal, we affirm his judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2023
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