Com. v. Palmer, R.

J-S02036-18
2018 PA Super 185COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT PALMER :
:
Appellant : No. 3618 EDA 2016
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.
CONCURRING AND DISSENTING OPINION BY RANSOM, J.:FILED JUNE 26,
2018
I concur as to the challenge to the admission of evidence. However,
I dissent from the decision to affirm Appellant’s conviction for aggravated
assault attempting to cause serious bodily injury to a “John Doe” victim.
The majority’s decision accepts the Commonwealth’s representation
that Appellant fired into a crowd of people. See also Commonwealth’s Brief
at 11-13. However, I believe that the evidence presented at trial fails to
establish the “presence of a crowd.” Id. at 13.
First, the shooting occurred around 11:00 p.m. on a weekday
(Thursday), not during daylight or a weekend night, when it may be inferred
that the street was busy. Notes of Testimony (N. T.), 8/16/16, at 41; N. T.,
8/17/16, at 58, 75, 78, 83-84.
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* Retired Senior Judge assigned to the Superior Court.
J-S02036-18
Ms. Kelsey testified that there were not “a lot of people” in Yolo’s –
maybe “like ten of [them],” and she knew “[j]ust about everybody in there.”
N. T., 8/16/16, at 47. Ten people inside a building does not support the
Commonwealth’s contention that it was a “busy” street outside.
After leaving Yolo’s, which is located at the corner of Chadwick Street
and Susquehanna Avenue, Ms. Kelsey saw “another friend” before entering
her automobile on Chadwick Street. Id. at 43, 47.1 Only one person on
Chadwick Street also fails to support the Commonwealth’s contention that it
was “busy” outside at 2204 North 17th Street, where the ten cartridge casings
were recovered and, thus, where the shooter was standing. Compare
Commonwealth’s Brief at 11-12, and TCO at 10-11, with N. T., 8/17/16, at
43-44, 48-51, 113, 117, 120.
Ms. Kelsey drove west on Susquehanna Avenue, a one-way street, then
turned left on to North 17th Street, also a one-way street. N. T., 8/16/16, at
45, 48-49; N. T., 8/17/16, at 36. Ms. Kelsey testified that “everybody was
following me to our next location.” N. T., 8/16/16, at 48. In other words, any
other automobiles from her party were behind hers. She was the first one to
turn on to North 17th Street. She was only on North 17th Street for “like five
seconds” when she was shot. Id. at 49. None of the other cars had turned
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1 A map was admitted as Exhibit C-30 and shown during witnesses’ testimony
in order to aid the jury with their perception of the area and the physical
relationships amongst the recovered cartridges, the deli from which the
surveillance footage was taken, Yolo’s, the path Ms. Kelsey travelled, and the
location of her car when she was shot.
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yet, because her vehicle was in front. So, none of the people in those vehicles
could be considered “John Doe” or part of a “crowd” on North 17th Street, as
they were not even in the shooter’s line of vision. They had not yet turned on
to North 17th Street, so there is no reason for the shooter to know they were
coming. Also, Ms. Kelsey had waited for everybody else to enter their vehicles
before she began to move, meaning that there was not anyone from her party
still walking around outside on any of the aforementioned streets. Id. at 42.
Furthermore, the cartridge casings were discovered north of
Susquehanna Avenue; the shooter would have to have been firing south, the
same direction as the traffic flow on 17th Street – i.e., vehicles would not have
been approaching him if they turned off Susquehanna Avenue and on to 17th
Street. N. T., 8/17/16, at 43-44, 48-51, 113, 117, 120. If Appellant’s intent
was to shoot someone in Ms. Kelsey’s party, it is inexplicable that he was
waiting north of Susquehanna Avenue when the party could only turn south
on to 17th Street. Additionally, it is incomprehensible why Appellant would
have been walking back and forth on the 2200 block of North 17th Street for
almost three hours if his intent was to shoot into a crowd turning in a different
direction. Ex. C-37; N. T., 8/17/16, at 56, 58, 63-65, 68, 75, 78, 83.
In addition, both Officer Katie Lankford and Detective Michael Rocks
testified that police knocked on about thirty doors on both sides of 17th Street
between Susquehanna Avenue and Dauphin Street, the parallel street
immediately north of Susquehanna Avenue, and found no one who was
present or saw anything during the shooting. Id. at 43-44, 121, 173-74.
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During his testimony, Detective Rocks made a passing reference to a
man named Faheem Williams being “at the scene at the time of the shooting,”
but no testimony was provided as to Mr. Williams’s exact location, including
whether the shooter could have been aware of his presence. Id. at 122.
The only arguable evidence of a “crowd” is when, asked if this is a “busy
intersection” with “[a] lot of people walking around out there,” Detective
James Wearing answered affirmatively. Id. at 94. However, there is no other
context, including whether the streets were busy at that particular time or day
when the shooting occurred – e.g., an intersection could be busy at 9:00 a.m.
on Mondays but not at 11:00 p.m. on Thursdays.
Based upon my review of the record, I find insufficient evidence to
support the majority’s assertion that a crowd was present when Appellant fired
his weapon so that the jury could infer that Appellant hoped or believed to hit
someone in that crowd with one or more bullets. Without the presence of a
crowd, the majority’s entire analysis crumbles.
Instead, for the reasons that follow, I would reverse Appellant’s
conviction for aggravated assault attempting to cause serious bodily injury to
a “John Doe” victim. Also, to the extent that this decision would disrupt the
trial court’s sentencing scheme, I would vacate the judgment of sentence and
remand to the trial court for re-sentencing.
“Where the victim suffers serious bodily injury, the Commonwealth is
not required to prove specific intent. The Commonwealth need only prove the
defendant acted recklessly under circumstances manifesting an extreme
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indifference to the value of human life.” Commonwealth v. Patrick, 933
A.2d 1043, 1046 (Pa. Super. 2007) (en banc) (internal brackets and citations
omitted).2 However, “where the victim does not sustain serious bodily injury,
the Commonwealth must prove that the appellant acted with specific intent to
cause serious bodily injury.” Commonwealth v. Holley, 945 A.2d 241, 247
(Pa. Super. 2008) (citation and internal brackets omitted).
Here, for the count of aggravated assault against the “John Doe” victim,
the Commonwealth only alleged and the trial court only instructed the jury on
the charge that Appellant attempted to cause serious bodily injury, not that
Appellant caused the John Doe serious bodily injury. N. T., 8/18/16, at 69-
70, 84-85, 87-88, 105-07. Thus, the Commonwealth had to prove that
Appellant acted with the specific intent to cause serious bodily injury; evidence
that Appellant acted recklessly is insufficient. Patrick, 933 A.2d at 1046;
Holley, 945 A.2d at 247.
Appellant was convicted of aggravated assault against a “John Doe”
pursuant to 18 Pa.C.S. § 2702(a). Section 2702(a) lists nine definitions for
aggravated assault, but only two are applicable. Section 2702(a)(1) states
that a defendant is guilty of aggravated assault if he or she “attempts to cause
serious bodily injury to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme indifference
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2 Thus, for the aggravated assault against Ms. Kelsey, since Ms. Kelsey
sustained serious bodily injury, the Commonwealth only needed to establish
that Appellant acted recklessly.
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to the value of human life” (emphasis added). Similarly, Section 2702(a)(4)
states that a defendant is guilty of aggravated assault if he or she “attempts
to cause or intentionally or knowingly causes bodily injury to another with
a deadly weapon” (emphasis added). Both definitions require that the
defendant intended to cause some degree of bodily injury to another
person.
The trial court primarily relies upon Commonwealth v. Lopez, 654
A.2d 1150 (Pa. Super. 1995), quoting that case for the legal principles: “When
no serious bodily injury results from the accused’s actions, the Commonwealth
must prove that he attempted to cause another to suffer such injuries. . . .
This intent need not be directed at a specific person.” Trial Court Opinion
(TCO), 4/10/17, at 10 (quoting Lopez, 654 A.2d at 1154 (citations omitted)).
In Lopez, the defendant fired shots into the residence of his ex-girlfriend,
which, unknown to him, was vacant at the time. 654 A.2d at 1152. This Court
held that the defendant’s state of mind, not the former girlfriend’s location,
was the determining factor when deciding whether he committed aggravated
assault upon another. Id. at 1155. In that case, there was evidence to
demonstrate the defendant’s intent to harm his former paramour – he had
previously threatened to kill her and “considered himself to be at ‘war’ with
her.” Id. Ergo, in Lopez, unlike in the current matter, a specific person could
be named as the person to whom the defendant intended to cause serious
bodily injury. Even if the defendant in Lopez was mistaken as to his ex-
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girlfriend’s whereabouts, he still believed that another person was the target
of his assault, and the Commonwealth thereby established intent.
The trial court also attempts to rely, in part, upon Commonwealth v.
Fierst, 620 A.2d 1196 (Pa. Super. 1993), for the concept that “intent to
commit serious bodily injury need not be directed at a specific person.” TCO
at 10 (quoting Fierst, 620 A.2d at 1201). Nevertheless, the trial court’s
reliance is again misplaced. In Fierst, this Court held that “the evidence was
sufficient to convict appellant of aggravated assault” after the appellant, who
“had previously manifested certain suicidal and homicidal tendencies,” was
found to have intentionally driven into an oncoming automobile. 620 A.2d at
1199, 1201-02. Although that appellant did not know who the specific person
driving the oncoming car was, he still knew that there was a person driving
that other moving vehicle. Id. at 1199, 1201. The appellant did not drive
into a parked automobile or another stationary object. Consequently, the
reasonable inference was that the appellant intended to drive into both the
oncoming car and its driver. Id. at 1201. Combined with the appellant’s
known mental state, driving directly into an oncoming vehicle was sufficient
to find that a person intended to cause the result of serious bodily injury to
another. Id. at 1202. Accordingly, albeit that “intent to commit serious bodily
injury need not be directed at a specific person,” id. at 1201 (emphasis
added), it still needs to be directed at a person whom the appellant knew or
believed was present. Here, the Commonwealth did not establish the
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presence of a person nor that Appellant knew or incorrectly believed that
someone was the target of his assault.
I also look to the more recent case of Commonwealth v. Jackson, 955
A.2d 441 (Pa. Super. 2008). In Jackson, three police officers were
investigating a shooting incident that had occurred earlier in the day, targeting
but missing the intended victim, who was with his girlfriend and her children.
Id. at 442. While the officers were interviewing a third-party witness at the
scene, the appellant approached the intended victim and starting shooting.
Id. No one was injured, and the appellant was apprehended and charged with
aggravated assault and other crimes. Id. The evidence showed that the three
police officers, the girlfriend, her children, and the witness were “near [the
a]ppellant’s intended victim” and that the appellant “fired a deadly weapon
toward them.” Id. at 448. The appellant challenged the sufficiency of the
evidence to sustain his conviction for the aggravated assaults of the three
police officers, the girlfriend, her children, and the witness, who were all
unharmed. Id. at 445. Specifically, the appellant “argue[d] that the
Commonwealth failed to establish that he had the specific intent to cause
serious bodily injury to any of these persons, and thus, the requisite intent for
his aggravated assault convictions is lacking.” Id. at 445-56. In considering
this issue, this Court stated:
There is . . . no other evidence, in the form of circumstances,
actions or words, occurring before, during, or after the shooting,
that tends to demonstrate that [the a]ppellant specifically
intended to inflict injury upon these particular persons. Therefore,
the only circumstance in the record from which it may be inferred
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that [the a]ppellant had the intent to cause these persons serious
bodily injury was his firing a deadly weapon in their direction.
Based on the totality of the circumstances, we conclude that the
evidence was insufficient to establish beyond a reasonable doubt
that [the a]ppellant harbored the specific intent to cause serious
bodily injury with a deadly weapon to any of these persons.
Id. at 448.
In the instant case, there is no evidence, in the form of circumstances,
actions, or words, occurring before, during, or after the shooting,
demonstrating that Appellant specifically intended to inflict injury upon
anybody. Hence, the only circumstance in the record from which it may be
inferred that Appellant had the intent to cause anyone serious bodily injury
was his firing a deadly weapon -- but not at any particular person or thing.
Therefore, based upon the analysis in Jackson and considering the totality of
the circumstances, I conclude that the evidence was insufficient to establish
beyond a reasonable doubt that Appellant harbored the specific intent to cause
serious bodily injury to any person.3
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3 In Jackson, this Court ultimately affirmed the appellant’s convictions for
aggravated assault, based upon the doctrine of transferred intent – i.e., “the
person who ultimately is the victim not be the original intended victim,”
because it was “an established fact that [the a]ppellant intended to cause
serious bodily injury to [the intended victim] with a deadly weapon.” 955 A.2d
at 450. However, unlike in the current action, the evidence in Jackson
established who the intended victim was and that there even was an intended
victim, in order for intent to be transferred. Id. at 442, 450.
In the present case, the Commonwealth never argued and the trial court
opinion does not suggest that transfer of intent was applicable to the
aggravated assault attempting to cause serious bodily injury against the John
Doe victim. See generally Commonwealth’s Brief; TCO. The concept of
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transferred intent was only presented to the jury as transferring from “John
Doe” to Ms. Kelsey.
During its opening statement, the Commonwealth contended that “a concept
called transferred intent” applied to the aggravated assault against Ms. Kelsey
only, explaining:
[T]ransferred intent means that the law recognizes that if
somebody intends to commit a crime against one person, but they
actually commit a crime against another person, they are
responsible for both. . . . That’s the idea of transferred intent.
Make no mistake, Danielle Kelsey was not the target on July 16th,
2016, but she’s the one whose life was turned upside down
because of his actions.
N. T., 8/16/16, at 31-32.
In its closing argument, the Commonwealth stated to the jury:
[Appellant is] charged with aggravated assault and I want to
spend a little bit of time talking about transferred intent. . . .
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 [Appellant] was not trying to shoot her.
...
The reason he’s responsible for Danielle Kelsey, even though he
wasn’t shooting at her it’s transferred intent.
N. T., 8/18/16, at 62.
Similarly, the trial court instructed the jury on the doctrine of transferred
intent as to shooting of Ms. Kelsey only:
There is a concept called transferred intent under the law. . . .
If you find beyond a reasonable doubt that the defendant intended
to kill or cause serious bodily injury to an unknown person or
persons and was acting with that intent at the time that he, in
fact, caused serious bodily injury to Danielle Kelsey, you may find
that the defendant acted with the specific intent to kill or cause
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In conclusion, I would agree with Appellant that the Commonwealth
failed to establish that another person was ever the intended victim of his
shootings, such that a body even existed for bodily injury to occur.
Accordingly, I would find the evidence to be insufficient to establish
aggravated assault and would reverse Appellant’s conviction for one count of
aggravated assault attempting to cause serious bodily injury to a “John Doe”
victim; I would affirm Appellant’s convictions on all remaining counts. As this
decision would disrupt the trial court’s sentencing scheme, see TCO at 1,
I would also vacate the judgment of sentence and remand to the trial court
for re-sentencing.
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serious bodily injury under what the law calls the doctrine of
transferred intent.
Id. at 88-89.
I mention that the Commonwealth argued and the trial court instructed that
transferred intent only applied from “John Doe” to Ms. Kelsey in order to show
that the jury were never presented with the option that intent transferred to
“John Doe.” I am not contending that the jury, in fact, found Appellant guilty
of aggravated assault causing serious bodily injury to Ms. Kelsey based on the
theory of transferred intent, because the evidence is sufficient to support this
conviction based on a mens rea of recklessness. Moreover, Appellant did not
contest the sufficiency of the evidence to establish his conviction for
aggravated assault causing serious bodily injury to Ms. Kelsey.
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