Com. v. McGurl, H., Jr.

J-S81026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAROLD JOHN MCGURL, JR. :
:
Appellant : No. 1137 MDA 2018
Appeal from the Judgment of Sentence Entered June 13, 2018
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0002107-2016
BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED: MAY 21, 2019
Appellant, Harold John McGurl, Jr., appeals from the June 13, 2018
Judgment of Sentence entered in the Schuylkill County Court of Common Pleas
following his jury conviction of one count each of Criminal Attempt to Commit
First-Degree Murder and Recklessly Endangering Another Person, and two
counts each of Aggravated Assault and Simple Assault.1 On appeal, Appellant
challenges the sufficiency of the evidence supporting his conviction of Criminal
Attempt to Commit First-Degree Murder. After careful review, we affirm.
The trial court set forth the facts supporting Appellant’s conviction in its
September 17, 2018 Pa.R.A.P. 1925(a) Opinion. In sum, the Commonwealth
charged Appellant with the above crimes after Appellant attacked the victim,
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118 Pa.C.S. §§ 901(a)–2502(a); 2705; 2702(a)(1); 2702(a)(4); 2701(a)(2);
and 2701(a)(3), respectively.
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* Former Justice specially assigned to the Superior Court.
J-S81026-18
Jordan Adams (the “Victim”), in the early morning hours of October 8, 2016.
The Victim is the brother of Shawn Parker; Shawn Parker and Brittany
Fenstermacher, Appellant’s ex-girlfriend, were dating at the time of the
incident.
On the day of the attack, Appellant met Fenstermacher in a public park
where they shared a six-pack of beer. They then went to a bar called the
Drunken Monkey. While at the bar, Parker called and texted Fenstermacher
numerous times. As the evening progressed, Appellant became more and
more belligerent and obnoxious and announced that he planned to get into a
fight with Parker. Before leaving the Drunken Monkey, Krystal Semerod, a
bar patron, gave Appellant, at Appellant’s request, a knife.
After Appellant and Fenstermacher left the Drunken Monkey to walk
home, Appellant saw the Victim driving the car that Appellant had observed
Parker and Fenstermacher driving in earlier that day. The Victim parked and
exited the car not far from where Appellant and Fenstermacher were standing.
When the Victim turned around, he saw Appellant holding a knife above his
head. Appellant asked the Victim if he was Parker’s brother; the Victim
answered in the affirmative; and Appellant informed the Victim that Appellant
was going to “end” the Victim.
Appellant proceeded to attack the Victim with the knife, slashing at his
head, neck, and face. The victim fought back and Appellant then stabbed him
in multiple parts of his body, including his tricep, bicep, and shoulder.
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When the Victim arrived at the emergency room, he was in hemorrhagic
shock due to blood loss. The Victim received intravenous therapy and blood
transfusions and doctors performed emergency surgery on him. The Victim
survived, but continues to have limited mobility in his arm.
Appellant’s two-day jury trial commenced on April 2, 2018, following
which the jury convicted him of the above charges. On June 13, 2018, the
trial court sentenced Appellant to an aggregate term of 10-20 years’
incarceration and ordered him to pay $76,363.63 in restitution for the Victim’s
medical expenses. Appellant did not file a Post-Sentence Motion. This timely
appeal followed.2
On appeal, Appellant challenges the sufficiency of the evidence in
support of his Criminal Attempt to Commit First-Degree Murder conviction.
Appellant’s Brief at 13.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review
claims regarding the sufficiency of the evidence by considering 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.” Commonwealth v.
Miller, 172 A.3d 632, 640 (Pa. Super. 2017)(internal quotation marks and
citation omitted). “Further, a conviction may be sustained wholly on
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2 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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circumstantial evidence, and the trier of fact—while passing on the credibility
of the witnesses and the weight of the evidence—is free to believe all, part, or
none of the evidence.” Id. “In conducting this review, the appellate court
may not weigh the evidence and substitute its judgment for the fact-finder.”
Id.Under the Crimes Code, a defendant “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).
“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. “The use of a deadly weapon on a vital part of the human
body is sufficient to establish the specific intent to kill.” Commonwealth v.
Randolph, 873 A.2d 1277, 1281 (Pa. 2005). “A person may be convicted of
attempted murder if he takes a substantial step toward the commission of a
killing, with the specific intent in mind to commit such an act.’”
Commonwealth v. Dale, 836 A.2d 150, 153 (Pa. Super. 2003) (citations
omitted). See 18 Pa.C.S. §§ 901, 2502.
Appellant avers that the Commonwealth failed to prove that he had the
specific intent to kill the Victim because: (1) the Victim was not only an active
participant in the altercation, but was, in fact, the aggressor; and (2) the
Victim admitted that, at the time of the altercation, he had been under the
influence of, among other things, methamphetamine, “which impacted [the
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Victim’s] ability to recollect the events and most likely impacted his behavior
that night.” Appellant’s Brief at 14-15.
In its Rule 1925(a) Opinion, the trial court explained the basis for its
conclusion that the Commonwealth presented sufficient evidence to sustain
Appellant’s Criminal Attempt to Commit First-Degree Murder conviction. The
court explained as follows:
The evidence read in the light most favorable to the
Commonwealth, the verdict winner, establishes that [Appellant]
was angry with Parker, [Appellant’s] ex-girlfriend’s new boyfriend
with whom the woman lived. [Appellant] drank alcohol with
Fenstermacher much of the day and evening while at a park and
then at the Drunken Monkey. He became belligerent the more he
drank. At one point he took Fenstermacher’s phone when Parker
called her and told Parker to get out of the home he shared with
Fenstermacher or [Appellant] was going to get him out.
[Appellant] asked a woman at the bar, Semerod, for one of the
pocket knives hanging on her purse because he said he was
getting into a fight with someone who had a gun.
Upon seeing the car that Parker and Fenstermacher had been in
earlier in the day drive by him after leaving the bar, [Appellant]
told Fenstermacher that there was the “M…F…” Moments
thereafter, [the Victim] got out of the vehicle, [Appellant] stated
that [Appellant] was going to “end” the Victim], raised the knife
above his head and swung it down at the Victim’s] head and face.
[The Victim] backed up but [Appellant] came at him again slashing
[The Victim’s] face and head with the knife. After kicking and then
tripping [Appellant], the men fought[,] with [the Victim]
sustaining numerous knife wounds to his body. The hat [the
Victim] wore had been sliced through the brim – the location
coinciding with [Appellant’s] initial knife strikes. The shirt [the
Victim] wore was sliced and tattered and stained significantly by
blood. [The Victim] suffered life[-]threatening injuries from the
incident. Under the circumstances, including [Appellant’s] actions
and statements [in] the early morning of October 8, 2016, the
jury had [a] sufficient basis to find [Appellant] had formed the
requisite intent and took a substantial step toward killing [the
Victim].
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Trial Ct. Op., 9/17/18, at 7-8 (unpaginated).
Following our review of the record, we agree with the trial court that,
when viewed in the light most favorable to the Commonwealth as verdict-
winner, the evidence presented by the Commonwealth was sufficient for the
jury to reasonably conclude that Appellant had the specific intent to commit
First-Degree Murder. As demonstrated by his actions, which occurred after
he announced that he intended “to end” the Victim, Appellant took substantial
steps toward the commission of that offense, which resulted in the Victim’s
near-fatal blood loss and permanent injury. Accordingly, Appellant is not
entitled to relief on this claim.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2019
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