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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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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J-S67013-14


              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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J-S67013-14


      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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