J-S11038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
            v.                             :
                                           :
MATTHEW MILLER,                            :
                                           :
                  Appellant                :            No. 1510 EDA 2015

           Appeal from the Judgment of Sentence March 30, 2015
              in the Court of Common Pleas of Bucks County,
             Criminal Division, No(s): CP-09-CR-0005278-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED FEBRUARY 19, 2016

      Matthew Miller (“Miller”) appeals from the judgment of sentence

imposed following his convictions of one count each of attempted homicide,

robbery of a motor vehicle, possession of an instrument of crime, theft by

unlawful taking or disposition, resisting arrest, and two counts of aggravated

assault.1 We affirm.

      The trial court stated the following relevant facts:

             On June 10, 2014, Bensalem Police were made aware of
      [Miller’s] escape from a work-release prison. An e-mail was
      circulated which alerted officers and provided a picture of
      [Miller]. Shortly after this circulation, Officer Aaron Woelkers
      [(“Officer Woelkers”)] of Bensalem Township spotted [Miller]
      near Woodhaven Road. Officer Woelkers noted that [Miller] was
      accompanied by another individual and sent an alert to on-duty
      personnel.

            Officer Michael Jachimski [(“Officer Jachimski”)] responded
      to Officer Woelkers’ alert and quickly spotted [Miller]. After

1
  18 Pa.C.S.A. §§ 901, 2501(a); 3702; 907(a); 3921(a); 5104; 2702(a)(1),
(2).
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      visually identifying [Miller], [Officer] Jachimski initiated a
      pedestrian stop along Woodhaven Road in Bensalem Township.
      Following a brief conversation with the officer, [Miller] falsely
      identified himself as “Mike” Miller.

             Although initially cooperative with Officer Jachimski,
      [Miller] became combative once [Officer] Jachimski attempted to
      handcuff him. [Miller] refused to allow Officer Jachimski to place
      him in custody and assumed a fighting position.            [Miller]
      attempted to punch [Officer] Jachimski’s upper body multiple
      times before fleeing.

            [Miller] first fled from [Officer] Jachimiski before turning
      and running toward the officer’s police car. [Miller] attempted to
      enter the vehicle, which was running, and [Miller] and Officer
      Jachimski once more became entangled in a physical struggle.
      In addition to striking [Officer] Jachimski, [Miller] also attempted
      to push him onto a roadway where traffic was passing.

            Eventually the struggle between [Miller] and [Officer]
      Jachimski escalated and [Miller] brandished a knife. The knife
      was approximately nine-inches in length when the blade was
      extended. [Miller] attempted to stab Officer Jachminski multiple
      times before [Miller] struck him with the knife in the abdomen.
      Officer Jachminski was uninjured by the strike because of the
      protective vest that he was wearing. After stabbing [Officer]
      Jachminski, [Miller] entered the police car and fled the scene at
      a high rate of speed.

             Following [Miller’s] theft of his vehicle, Officer Jachimski
      notified other police personnel of [Miller’s] flight. Within minutes
      of commandeering Officer Jachimski’s police vehicle, [Miller]
      abandoned it in a strip mall and ran toward a school in
      Philadelphia County. During his flight[,] [Miller] attempted to
      conceal himself by discarding various items of clothing. [Miller]
      was apprehended shortly thereafter without further physical
      confrontation by Detective David Nieves and Corporal Todd
      Shapiro of the Bensalem Township Police Department.

Trial Court Opinion, 7/30/15, at 2-3 (citations omitted).

      On January 5, 2015, after a two-day bench trial, the trial court found

Miller guilty of the above-mentioned crimes. On March 30, 2015, the trial


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court sentenced Miller to nine and one-half years to twenty years for the

attempted homicide, three and one half years to seven years for the robbery

of a motor vehicle, and one year to four years for the possession of an

instrument of crime, each to be served consecutively.2       Thereafter, Miller

filed a timely Notice of Appeal and a timely court-ordered Pennsylvania Rule

of Appellate Procedure 1925(b) Concise Statement of Matters Complained of

on Appeal.

      On appeal, Miller raises the following question for our review: “Was

the evidence sufficient to support the verdict for attempted homicide?” Brief

for Appellant at 4.

      Miller argues that the evidence did not establish that he had a specific

intent to kill and did not evince a substantial step towards the commission of

an attempt to kill.   Id. at 10-14. Miller argues that the struggle between

him and Officer Jachimski was brief, he never verbally threatened the officer,

and that he acted out of panic and not with a specific intent to kill Officer

Jachimski.   Id. at 13; see also id. at 14 (wherein Miller contends that

pushing Officer Jachimski into traffic did not evidence specific intent to kill,

but that his actions were an attempt to free himself).       Miller additionally

contends that he did not continue to attack but fled in the police car. Id. at

2
 Miller pled guilty to an escape charge at a separate criminal information on
November 14, 2014, receiving a sentence of eighteen months to forty-eight
months in prison. This sentence was to run consecutively to the March 30,
2015 sentence. The trial court did not impose sentences for the aggravated
assault, theft by unlawful taking of a motor vehicle, and resisting arrest
convictions.


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12.   Miller also asserts that physical evidence demonstrates that his knife

barely penetrated Officer Jachimski’s protective vest, and that there was no

evidence indicating Officer Jachimski fell to the ground or was injured as a

result of the blow.   Id.   Miller contends that Fredrick Wendling, a firearm

and tool mark examiner called by the defense, described the hole in the

outer material of the vest as small, and testified that there was no

penetration of the armor itself.     Id. at 12-13.    Miller claims that the

Commonwealth presented no evidence of a hole or tear in the shirt worn

underneath the vest. Id. at 13.

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      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 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
      finder 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.




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Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

      “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 person is guilty of

criminal homicide if he intentionally, knowingly, recklessly or negligently

causes the death of another human being.” Id. § 2501(a).

            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.           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. . . [T]he 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)

(citations and quotation marks omitted).

      The use of a deadly weapon on a vital part of the body is sufficient to

establish the specific intent to kill.   See Commonwealth v. Rivera, 773

A.2d 131, 135 (Pa. 2001); see also Commonwealth v. Robertson, 874

A.2d 1200, 1207 (Pa. Super. 2005) (stating that appellant’s use of a deadly

weapon, a knife, to inflict injuries to the victim’s head, stomach, and neck,

was sufficient to prove a specific intent to kill). This Court has held that a

specific intent to kill can be inferred from the circumstances surrounding an

unlawful killing. See Robertson, 874 A.2d at 1207.



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       Officer Jachimski testified that while attempting to take Miller into

custody, Miller attempted to punch Officer Jachimski’s upper body multiple

times before fleeing.   N.T., 1/5/15, at 40.   Officer Jachimski also testified

that Miller lunged at him with a nine-inch knife, and attempted to stab him

multiple times before Miller stabbed him with the knife in the lower stomach

area. Id. at 43-47. Officer Jachimski testified that when stabbed, he felt

like he was punched in the stomach. Id. at 47. Miller’s expert testified that

Officer Jachimski’s body armor “overperformed” during the stabbing. N.T.,

1/7/15, at 22. Furthermore, Officer Jachimski testified that while entangled

in a physical struggle, Miller attempted to push him into a traffic lane where

vehicles were passing. N.T., 1/5/15, at 52.

       Here, the Commonwealth presented sufficient evidence that Miller had

a specific intent to kill Officer Jachimski and took a substantial step toward

that goal. See 18 Pa.C.S.A. §§ 901, 2502; see also Jackson, 955 A.2d at

444.   Indeed, Miller attempted to use a deadly weapon on a vital part of

Officer Jachimski’s body when Miller used a knife to stab Officer Jachimski in

the abdomen.       See Trial Court Opinion, 7/30/15 at 5-9; see also

Commonwealth v. Briggs, 12 A.3d 291, 307 (Pa. 2011) (stating that the

chest and abdomen are vital areas of the body).        Thus, the evidence is

sufficient to prove that Miller attempted to murder Officer Jachimski.    See

Robertson, 874 A.2d at 1207.

       Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2016




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