Com. v. Alston, L.

J-S67013-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LAMAR STEWART ALSTON, :
:
Appellant : No. 266 WDA 2014
Appeal from the Judgment of Sentence January 16, 2014,
Court of Common Pleas, Allegheny County,
Criminal Division at No. CP-02-CR-0010059-2012
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 25, 2014
Lamar Stewart Alston (“Alston”) appeals from the judgment of
sentence entered following his convictions of first-degree murder, attempted
homicide, aggravated assault, flight to avoid apprehension, recklessly
endangering another person, and tampering with evidence.1 Alston
challenges only his conviction of attempted murder. We affirm.
The trial court summarized the facts underlying Alston’s convictions as
follows:
On June 24, 2012, Jonathan Tillar drove down
Stratmore Street in the West End of Pittsburgh. Tillar
was driving his friend Mileek Grissom's car and
Grissom was driving Tillar's car, because they traded
cars that day. Tillar testified that he was trying to kill
time that morning while he waited for Grissom to
finish his appointment at a nail spa in Bridgeville. He
stopped by his friend Nate Watt's [sic] house in the
1
18 Pa.C.S.A. §§ 2502(a), 901, 2702, 5126, 2705, 4910.
*Former Justice specially assigned to the Superior Court.
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West End. Tillar saw Rico Alston on the porch of the
house. ‘Rico’ was the nickname of [Alston’s] half[-
]brother, Darrell Alston. … A man and woman who
Tillar identified as [Alston] and Hope Renee Barfield
were also on the porch of the house.
When Tillar walked up the steps, [Alston], Rico and
Hope told him Nate wasn't there. Tillar asked to talk
to Rico about the accusations he had been making
against him. [Alston] and Hope Barfield walked away
during the ensuing conversation. Tillar and Rico
argued. At some point, [Alston] and Hope Barfield
returned. Barfield walked up behind Tillar and put
him in a bear hug, although Tillar was able to break
free. … Tillar punched [Alston], who pulled a gun on
him. Tillar believed that he was being confronted for
his role in the raid of Rico's house. … .
While [Alston] held Tillar at gunpoint, Barfield
opened the door of the car, and took the car keys,
some money and some marijuana that Tillar had in
the car. Barfield tossed the keys to a friend of
Tillar's who was waiting in the car and said, ‘it's got
nothing to do with you.’ Tillar pretended to call 911
to report the incident. Once Tillar pretended to
make the call, [Alston] and Barfield walked away.
Tillar became concerned that it wasn't safe at his
house. He believed that [Alston] and Barfield knew
where he lived. Tillar and his friend drove to Tillar’s
house where Tillar told the mother of his children[]
to get the children and herself ready and leave the
house. At that point, Nate Watts drove up to Tillar's
house and began yelling at him, telling him not to go
back to [Nate’s] house where he lived with his
grandmother.
After Nate Watts left, [Alston’s] brother Rico pulled
up. He tried to tell Tillar that he had nothing to do
with the confrontation involving Tillar, [Alston] and
Barfield earlier that day. Tillar and Rico then got into
a fist fight [sic] which was broken up by Mileek
Grissom. Tillar testified that he had called Grissom
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after leaving Nate's house to tell him that he had
just been robbed. As Grissom was trying to stop the
fight, [Alston] and Barfield drove up and got out of
their vehicle.
Robert Provident, a City of Pittsburgh Homicide
investigator, interviewed Co-Defendant, Hope
Barfield on July 15, 2012. At the [t]rial, [h]omicide
investigator[] Robert Provident testified regarding
Co-Defendant Barfield's interview. Barfield stated
that Rico Alston had called her and said that he was
fighting with Tillar. Tillar testified that he heard
Barfield shouting ‘shoot him’, ‘get him’, ‘shoot them’,
‘take care of it’, and/or ‘go handle that’. Tillar
asserted that Barfield was ordering [Alston] to go
after Tillar and Mileek, or whoever was there.
[Alston] began shooting. Barfield later told Police
that [Alston] ‘was the one firing a gun’. Tillar
testified that [Alston] pointed the gun at him before
Tillar ducked behind a wall. Tillar testified he then
saw [Alston] aiming and firing at Grissom. Tillar
testified that Grissom had been standing right behind
him before the shooting began.
Tillar managed to evade getting shot. However, he
heard Grissom say ‘I'm hit’. He tried to get Grissom
into his car but he could not. The [p]olice and
ambulances arrived shortly thereafter and Grissom
was transported to the hospital. Grissom was
pronounced dead at the hospital.
Trial Court Opinion, 7/15/14, at 3-5 (citation to notes of testimony omitted).
Alston was tried jointly with Hope Barfield (“Barfield”). At the
conclusion of a three-day bench trial, Alston was convicted of the offenses
listed above. He subsequently received a sentence of life without parole on
the first-degree murder conviction as well as a consecutive sentence of ten
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to 20 years of imprisonment on the attempted homicide conviction. No
further penalties were imposed on the remaining convictions.
This timely appeal followed. Alston presents one issue for our review:
Did the trial court err in denying [Alston’s] motion
for judgment of acquittal regarding count 2,
attempted homicide of Jonathan Tillar, since there
was insufficient evidence to prove, beyond a
reasonable doubt, that [Alston] was shooting at
Tillar, and the Commonwealth’s evidence indicated
that [Alston] was shooting in the direction of and at
Mileek Grissom, who was two houses away from
where Tillar was positioned during the shooting?
Appellant’s Brief at 3.
Our standard of review when presented with a challenge to the
sufficiency of the evidence is as follows:
We must determine whether the evidence is
sufficient to prove every element of the crime
beyond a reasonable doubt. We must view evidence
in the light most favorable to the Commonwealth as
the verdict winner, and accept as true all evidence
and all reasonable inferences therefrom upon which,
if believed, the fact finder properly could have based
its verdict.
Our Supreme Court has instructed: 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. 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
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witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Orie, 88 A.3d 983, 1013-14 (Pa. Super. 2014), appeal
denied, 2014 WL 4667501 (Pa. Sept. 17, 2014).
“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.” Commonwealth v. Robertson, 874 A.2d 1200, 1207 (Pa. Super.
2005).
The substantial step test broadens the scope of
attempt liability by concentrating on the acts the
defendant has done and does not any longer focus
on the acts remaining to be done before the actual
commission of the crime. The mens rea required for
… specific intent to kill[] may be established solely
from circumstantial evidence. The law permits the
fact finder to infer that one intends the natural and
probable consequences of his acts.
Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008)
(internal citations omitted).
Alston argues that the evidence was insufficient to support his
conviction because there was no evidence he intended to shoot Tillar. In
support of his claim, Alston points to Tillar’s alleged testimony from the
preliminary hearing to the effect that at the time of the shooting, Alston was
not aiming at him. Appellant’s Brief at 25.
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First, we note that the notes of testimony from the preliminary hearing
have not been included in the certified record on appeal, and therefore we
may not consider the contents thereof. See Commonwealth v. Holley,
945 A.2d 241, 246 (Pa. Super. 2008) (“For purposes of appellate review,
what is not of record does not exist.”).
Second, our review of the evidence, in the light most favorable to the
Commonwealth, reveals support for the conclusion that Alston intended to
kill Tillar and took a substantial step toward accomplishing that goal. Tillar
testified at trial that earlier in the day, Alston held a gun on him while
Barfield robbed him. N.T., 10/16/13, at 76-78. He further testified that
when Alston and Barfield arrived at his house, Barfield yelled at Alston to
shoot Tillar and Alston pointed the gun at him before Tillar ducked for cover
behind a wall. Id. at 88, 140. Tillar then watched as Alston shot Grissom,
who had been standing right behind Tillar, multiple times. Id. at 88. This
evidence establishes both Alston’s intent to kill Tillar and a substantial step
toward that end; specifically, the pointing of the loaded firearm at Tillar. It
matters not that Alston did not fire the gun at Tillar, as we focus on the acts
the defendant has done, not the acts remaining to be done before the actual
commission of the crime. Jackson, 955 A.2d at 444.
We note that a substantial portion of Alston’s argument points out
inconsistencies and variances in Tillar’s testimony and highlights testimony
from other witnesses that he believes undercuts Tillar’s credibility. See
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Appellant’s Brief at 21-22, 24. These arguments are addressed to the
weight, rather than the sufficiency, of the evidence. See Commonwealth
v. Gaskins, 692 A.2d 224 (Pa. Super. 1997) (holding that a challenge to the
credibility of witness testimony goes to the weight of the evidence rather
than the sufficiency of the evidence). They have no bearing on the issue
before us for review.
Judgment of sentence affirmed.
Mundy, J. joins the Memorandum.
Fitzgerald, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2014
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