J-A19005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellant

                    v.

STEVEN PREDMORE,

                           Appellee                 No. 238 EDA 2017


            Appeal from the Order Entered December 12, 2016
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0000062-2016


BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED OCTOBER 04, 2017

      The Commonwealth filed this interlocutory appeal from the trial court’s

order granting Appellee’s, Steven Predmore, habeas corpus motion to

dismiss the charge of attempted homicide. After careful review, we affirm.

      The trial court summarized the pertinent factual and procedural history

of this case as follows:

            On December 12, 2015, at or about 12:45 a.m., Alex
      Marsicano was driving past his ex-girlfriend's residence when he
      noticed [Appellee]'s vehicle.     Mr. Marsicano stopped near
      [Appellee]'s vehicle. As he was leaving the residence, [Appellee]
      appeared in the parking lot. A confrontation occurred between
      [Appellee] and Mr. Marsicano when Cheyenne Eberhart, Mr.
      Marsicano's ex-girlfriend, broke up the fight. [Appellee] then
      retrieved a gun from his vehicle. [Appellee] fired 3 shots, two
      shots struck the back of Mr. Marsicano's calves and the third
      shot missed. [Appellee] then left the scene in his vehicle. Mr.
      Marsicano contacted a friend who subsequently took him to the
      hospital. When interviewed by the police, [Appellee] indicated
      that he was acting in self-defense and that he just wanted to
      stop the beating.
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           On January 15, 2016, the Commonwealth filed a Criminal
     Information charging [Appellee] with Attempted Criminal
     Homicide, 18 Pa.C.S.[] § 901(a), (F1); Aggravated Assault, 18
     Pa.C.S.[] §2702 (a)(4), (F2); Simple Assault, 18 Pa.C.S.[] §
     2701(a)(2), (M2), and Recklessly Endangering Another Person,
     18 Pa.C.S.[] § 2705, (M2).

Trial Court Opinion (TCO), 12/12/16, at 1-2 (citations omitted).

     Appellee filed the at-issue habeas corpus motion on May 16, 2016. A

hearing was held on June 20, 2016 to address the matter, following which

the court granted the motion on December 12, 2016, thereby dismissing the

attempted homicide charge.

     The Commonwealth filed a timely notice of appeal on January 3, 2017,

and certified its compliance with Pa.R.A.P. 311(d) (“Commonwealth

appeals in criminal cases.--In a criminal case, under the circumstances

provided by law, the Commonwealth may take an appeal as of right from an

order that does not end the entire case where the Commonwealth certifies in

the notice of appeal that the order will terminate or substantially handicap

the prosecution.”).   The Commonwealth also filed a timely, court-ordered

Pa.R.A.P. 1925(b) statement on January 17, 2017.             The trial court

subsequently issued a Rule 1925(a) statement on February 7, 2017,

indicating that it would rely upon its December 12, 2016 opinion which

accompanied the order under review.

     The Commonwealth now presents the following question for our

consideration:

     Whether the [t]rial [c]ourt erred by dismissing Count 1 of the
     Criminal Information charging Attempt to Commit Criminal
     Homicide after the charge had been bound over following a

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     preliminary hearing and despite the Commonwealth[’s]
     presenting evidence of record that [Appellee] acted with a
     specific intent to kill when he retrieved a Ruger 9mm pistol from
     his vehicle, put a clip in the pistol, aimed and fired three shots at
     the retreating victim, striking the victim in the legs?

Commonwealth’s Brief at 5.

           We review a decision to grant a pre-trial petition for a writ
     of habeas corpus by examining the evidence and reasonable
     inferences derived therefrom in a light most favorable to the
     Commonwealth. Commonwealth v. James, 863 A.2d 1179,
     1182 (Pa. Super. 2004) (en banc). In Commonwealth v.
     Karetny, 583 Pa. 514, 880 A.2d 505 (2005), our Supreme Court
     found that this Court erred in applying an abuse of discretion
     standard in considering a pre-trial habeas matter to determine
     whether the Commonwealth had provided prima facie evidence.
     The Karetny Court opined, “the Commonwealth's prima facie
     case for a charged crime is a question of law as to which an
     appellate court's review is plenary.” Id. at 513, 880 A.2d 505;
     see also Commonwealth v. Huggins, 575 Pa. 395, 836 A.2d
     862, 865 (2003) (“The question of the evidentiary sufficiency of
     the Commonwealth's prima facie case is one of law[.]”). The
     High Court in Karetny continued, “[i]ndeed, the trial court is
     afforded no discretion in ascertaining whether, as a matter of
     law and in light of the facts presented to it, the Commonwealth
     has carried its pre-trial, prima facie burden to make out the
     elements of a charged crime.” Karetny, supra at 513, 880
     A.2d 505. Hence, we are not bound by the legal determinations
     of the trial court.

Commonwealth v. Dantzler, 135 A.3d 1109, 1111–12 (Pa. Super. 2016).

     A petition for writ of habeas corpus is the correct method for a
     defendant to test whether the Commonwealth has, before trial,
     established a prima facie case. Commonwealth v. Karlson,
     449 Pa. Super. 378, 674 A.2d 249, 251 (1996). To demonstrate
     that a prima facie case exists, the Commonwealth must produce
     evidence of every material element of the charged offense(s) as
     well as the defendant's complicity therein. Commonwealth v.
     Fowlin, 450 Pa. Super. 489, 676 A.2d 665, 673 (1996). In an
     effort to meet its burden, the Commonwealth may utilize the
     evidence presented at the preliminary hearing and also may
     submit additional proof. Id.


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            Proof beyond a reasonable doubt is not required at the
      habeas stage, but the Commonwealth's evidence must be such
      that, if accepted as true, it would justify a trial court in
      submitting the case to a jury. Id. Additionally, in the course of
      deciding a habeas petition, a court must view the evidence and
      its reasonable inferences in the light most favorable to the
      Commonwealth. Id. Suspicion and conjecture, however, are
      unacceptable. Id.

Commonwealth v. Carroll, 936 A.2d 1148, 1152 (Pa. Super. 2007)

(abrogation on other grounds recognized in Dantzler, supra).

      The Commonwealth contends that several aspects of the victim’s

testimony demonstrated that it had established a prima facie case for

attempted homicide under the facts of this case. First, the victim testified

that Appellee aimed the gun at him initially at chest to face level.”     N.T.,

1/8/16, at 24. Second, the victim also testified that he had turned to run

away when Appellee drew his firearm, and therefore the victim had his back

to Appellee when he fired three shots at him.         Id. at 12-13. Third, the

victim, as noted above, was shot twice in the calf.

      The Commonwealth asserts that these facts were sufficient to show

that Appellee took “a substantial step toward the commission of a killing,

with specific intent in mind to commit such an act.” Commonwealth’s Brief

at 15 (quoting Commonwealth v. Jackson, 955 A.2d 441 (Pa. Super.

2008)). The Commonwealth argues:

           In Jackson, the evidence established that just before
      Detective Dove began to chase [Jackson], he was armed with a
      gun and shooting at Wesley. As [Jackson] ran from Detective
      Dove, [he] turned, looked at the detective, and raised his arm
      toward the detective. The Court in Jackson stated that "it is not



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     essential that the record show that Appellant took aim and fired
     the gun at the detective". Under the substantial step test that
     controls, the focus is on the acts Appellant completed, not on the
     acts that remain for the actual commission of Detective Dove's
     murder. Jackson at 445. Based on the actions [Jackson] took,
     the fact finder could have reasonably found that [Jackson] took a
     substantial step toward intentionally killing the detective. Id.

            The Court in Commonwealth v. Donton, 654 A.2d 580
     (Pa. Super. 1995), concluded that the evidence established that
     [Donton] took a substantial step toward the attempted murder
     of his wife by loading a gun equipped with a scope, driving miles
     to where she was, and reconnoitering the area with the gun
     within easy reach, notwithstanding that defendant did not
     actually aim or fire the gun at her.

           Here, [Appellee] went to his vehicle and retrieved a pistol
     from the glove box of the vehicle and put a clip in the pistol,
     cocked it and then pointed it at Alexander Marsicano. [Appellee]
     then fired three shots at Alexander Marsicano as Alexander
     Marsicano was attempting to run away, striking him in both legs.
     Under the substantial step test, and focusing on the acts
     [Appellee] completed, not on the acts that remain for the actual
     commission of the crime, the trial court erred by concluding that
     the Commonwealth failed to establish a prima facie case for the
     charge of Attempted Homicide. Based on the actions [Appellee]
     took, the fact finder could have reasonably found that [he] took
     a substantial step toward the intentional[] killing of Alexander
     Marsicano.

           Furthermore, the argument that [Appellee] was acting in
     self-defense is without merit. Evidence as to justification or
     excuse does not negate a determination of a prima facie case,
     but is a matter that is properly raised at trial. Commonwealth
     v. Benz, 565 A.2d 764 (Pa. 1989).

           Based on the evidence presented, the Commonwealth has
     established a prima facie case for the charge of Attempted
     Homicide and the Trial Court erred as a matter of law by
     granting [Appellee]'s Habeas motion and dismissing the charge
     of Attempted Homicide.

Commonwealth’s Brief at 15-17.




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J-A19005-17



      Although the Commonwealth’s brief clearly focuses on the “substantial

step” test, the trial court did not base its ruling on the Commonwealth’s

ostensible failure to establish a prima facie case of the actus reus of the

attempted homicide charge.        Instead, the court determined that the

Commonwealth failed to establish a prima facie case for the mens rea

element of the offense: specific intent to kill. TCO at 4 (“Given these facts,

we cannot find that [t]he specific intent to kill has been established.”).

Indeed, Appellee argued in his habeas motion that the Commonwealth had

failed to demonstrate evidence sufficient to establish specific intent to kill,

not that the evidence was insufficient to establish a substantial step toward

the commission of a homicide.     Habeas Corpus Motion, 5/16/16, at 2 ¶ 5

(unnumbered pages).     Accordingly, we reject the reasoning offered by the

Commonwealth to reverse the order of the trial court.         The actus reus

element of the offense of attempted homicide can be conceded without

concluding that Appellee possessed the requisite mens rea for that offense.

      The Commonwealth has offered no argument in its brief regarding

which facts in the record tended to demonstrate a specific intent to kill. As

Appellee and the trial court suggest, this is not a case where such intent can

be inferred from a wound to a vital part of the victim’s body. There is also

nothing in the record resembling the sort of premeditation and/or lying-in-

wait which occurred in Donton, supra.

      Moreover, we find nothing in the record regarding the shooting itself

that could suggest intent to kill to a reasonable juror. Even assuming the

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J-A19005-17



victim’s credibility with respect to the allegation that Appellee pointed his

gun at the victim’s upper body initially (as we must under our standard of

review), we do not view that act as demonstrative of a specific intent to kill

in the circumstances of this case. Appellee, immediately thereafter, fired his

weapon from extremely close range, according to the victim’s testimony,1

and yet only struck him in the calf. There was no testimony suggesting that

Appellee’s shooting arm was impaired in any way, or that any struggle for

the gun occurred.       This combination of the location of the victim’s injuries

and the close proximity of the shooting, along with the absence of any

evidence that Appellee was temporarily impaired in his ability to aim, belies

any suggestion that a reasonable juror could conclude that Appellee acted

with the intent to kill based upon the act itself.2 This array of evidence may

still support a finding of malice, but it is not sufficient to support a finding of

specific intent to kill. Accordingly, we conclude that the trial court did not




____________________________________________


1The victim testified that Appellee was only 2.5-3 feet away from him when
he fired the shots. N.T., 1/8/16, at 12-13.

2  The location of injuries naturally becomes less indicative of intent as the
range between the victim and shooter increase. However, it is virtually
impossible to shoot someone in the legs from a few feet away without
aiming in that general direction and, therefore, away from more vital parts
of their body. Given that no evidence of record suggests that Appellee’s
shooting arm was bumped or otherwise obstructed when the shots were
fired, the only reasonable inference that can be made with respect to his
intent is that he did not specifically intend to shoot to kill.



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J-A19005-17



err when it granted Appellee’s habeas corpus motion to dismiss the charge

of attempted homicide.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2017




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