J-E02002-18

                               2018 PA Super 313



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: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN, J.,
        LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and
        MCLAUGHLIN, J.

OPINION BY BENDER, P.J.E.:                      FILED NOVEMBER 27, 2018

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

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

a charge of attempted murder. The trial court ruled that the Commonwealth

failed to present prima facie evidence of Appellee’s specific intent to kill the

victim. The Commonwealth argues that it demonstrated Appellee’s specific

intent to kill under the prima facie standard based solely on evidence that

Appellee had taken a substantial step toward the commission of a first-degree

murder. After careful review, we affirm.

      The trial court summarized the pertinent factual and procedural history

of this case as follows:
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            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.

            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.

Following a hearing held on June 20, 2016, to address the matter, the court

granted Appellee’s habeas 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


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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 that accompanied the

order under review.

     On October 4, 2017, a unanimous panel of this Court issued a

memorandum decision affirming the trial court’s order dismissing the

attempted murder charge. The Commonwealth filed a timely application for

reargument on October 13, 2017, and, on November 30, 2017, this Court

issued   an   order   granting    reargument      and    withdrawing   the   panel’s

memorandum. The Commonwealth now presents the following question for

our review:

     Whether the trial court erred by dismissing count 1 of the criminal
     information charging attempt to commit criminal homicide after
     the charge had been bound over following a preliminary hearing
     and despite the Commonwealth[’s] presenting evidence of record
     that the [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 Substituted Brief for En Banc Reargument (hereinafter

“Commonwealth’s       Brief”),   12/14/17,   at   5     (unnecessary   capitalization

omitted).

           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


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     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.

            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).

     We begin our analysis with a summary of the pertinent law concerning

the crime of attempted murder. “A person commits an attempt when, with



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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)

(emphasis added).       “Criminal attempt to murder is defined by reading the

attempt statute, 18 Pa.C.S. § 901(a), in conjunction with the [first-degree]

murder statute, 18 Pa.C.S. § 2502(a).” Commonwealth v. Anderson, 650

A.2d 20, 23 (Pa. 1994). Thus, a “conviction for attempted murder requires

the Commonwealth to prove beyond a reasonable doubt that the defendant

had the specific intent to kill and took a substantial step towards that goal.”

Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008).                   In sum,

attempted murder is composed of two primary elements.              The mens rea

element of the offense is specific intent to kill, which is identical to the mens

rea element of murder in the first degree.1 The actus reus element of the

offense is the commission of one or more acts which collectively constitute a

substantial step toward the commission of a killing.
____________________________________________


1 Thus, the crimes of attempted murder in the second degree and attempted
murder in the third degree do not exist. See Commonwealth v. Griffin, 456
A.2d 171, 177 (Pa. Super. 1983). Neither second- nor third-degree murder
require a showing of specific intent to kill. Attempted murder is, by definition,
attempted first-degree murder. As this Court explained in Griffin:

       While a person who only intends to commit a felony may be guilty
       of second degree murder if a killing results, and a person who only
       intends to inflict bodily harm may be guilty of third degree murder
       if a killing results[,] it does not follow that those persons would be
       guilty of attempted murder if a killing did not occur. They would
       not be guilty of attempted murder because they did not intend to
       commit murder—they only intended to commit a felony or to
       commit bodily harm.

Id.

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      Instantly, the crux of the Commonwealth’s argument is as follows:

      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 [a]ttempted [h]omicide.         Based on the actions
      [Appellee] took, the fact finder could have reasonably found that
      [Appellee] took a substantial step toward the intentional[] killing
      of Alexander Marsicano.

Commonwealth’s Brief at 16.

      The trial 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.”). That ruling was a direct response to Appellee’s

habeas motion, wherein the defense had argued that the Commonwealth

failed, under the prima facie standard, to provide evidence of Appellee’s

specific intent to kill Marsicano, not that the evidence was insufficient to

establish that Appellee had taken a substantial step toward killing him.

Appellee’s Habeas Corpus Motion, 5/16/16, at 2 ¶ 5 (unnumbered pages).

      In this context, it is clear that the Commonwealth’s argument conflates

the actus reus and mens rea elements of attempted murder. Unfortunately,

the courts of this Commonwealth may have inadvertently prompted such

confusion by occasionally utilizing a short-hand definition of the elements of



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attempted murder: a substantial step toward an intentional killing. One does

not commit the crime of attempted murder by taking a substantial step toward

forming or possessing the intent to kill, whatever that would mean. A person

commits the crime of attempted murder when, while possessing the intent to

kill, he or she takes a substantial step toward killing the victim.

      Here, for the purposes of this appeal, it is undisputed that Appellee took

a substantial step toward the commission of a killing. As described by the

Commonwealth,

      [t]he finder of fact could reasonably find that aiming a gun at the
      victim initially at chest to face level, the victim having to turn to
      run away when [Appellee] drew his firearm, [Appellee’s] firing
      three shots at the victim, [and] the victim having been shot twice
      in the calf, establishes that [Appellee] took a substantial step
      toward the intentional[] killing of Alexander Marsicano.

Commonwealth’s Brief at 18. The problematic portion of the Commonwealth’s

argument is the placement of the term, intentional, immediately preceding

the term killing.   Again, the crime of attempted murder occurs when “the

defendant had the specific intent to kill and took a substantial step towards

that goal.”    Blakeney, 946 A.2d at 652 (emphasis added).            Here, the

Commonwealth only describes its proof of the actus reus element of attempted

murder, and then summarily concludes that the mens rea element naturally

follows from the proof of the former.        Absent invocation of a relevant

presumption of law, as discussed below, or some relevant analysis of the

manner in which the circumstantial evidence (including, but not limited to, the




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acts which satisfy the actus reus element), this argument is wholly

unconvincing.

       The Commonwealth cites Commonwealth v. Jackson, 955 A.2d 441

(Pa. Super. 2008), in support of its claim. However, our decision in Jackson

involved the substantial step test, i.e., the actus reus of the offense of

attempted murder, not the mens rea element, further demonstrating the

Commonwealth’s conflation of the actus reus and mens rea elements of

attempted murder in this case, or its misunderstanding of the basis for the

trial court’s ruling under review. In Jackson, the appellant challenged the

sufficiency of the evidence supporting his conviction based on the argument

that “the Commonwealth did not prove that [the a]ppellant had a gun or that

he aimed or fired it at” the victim, Detective Dove. Id. at 445. We rejected

that claim, because “the finder of fact could have reasonably inferred that [the

a]ppellant had his gun in hand at that time[,]” and because “the fact finder

could have reasonably found that [the a]ppellant took a substantial step

toward intentionally killing the detective” based on the specific circumstances

of that case.2 Id. For the reasons stated above, the inclusion of the term
____________________________________________


2 Immediately prior to the specific moment in time that gave rise to Jackson’s
conviction for attempted murder, Jackson had engaged in a gun battle with
the detective and other police officers, where Jackson and his cohorts had
fired “between 50 and 80 shots” at the officers. Id. at 443. In its brief, the
Commonwealth misstates or misrepresents these facts, suggesting that
Jackson had only been shooting at another man, Wesley, just prior to his flight
from Detective Dove. Commonwealth’s Brief at 15. That might suggest that
Jackson had formed the specific intent to kill Detective Dove solely by raising



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“intentionally” in the Jackson Court’s statement was unfortunate, because

Jackson had not challenged his conviction for attempted murder by alleging

insufficient evidence of his specific intent to kill Detective Dove.    Clearly,

Jackson was not a specific-intent-to-kill case at all and, therefore, it is not

controlling or even informative here.

       Despite the Commonwealth’s repeated conflation of the elements of

attempted murder, it is still incumbent upon this Court to review whether the

trial court erred when it determined that the facts and the reasonable

inferences derived therefrom, considered in a light most favorable to the

Commonwealth, did not justify placing the charge of attempted murder before

a jury. Here, the facts themselves are not in serious dispute. The core issue

is whether the reasonable inferences derived from those facts would permit a

jury to conclude that Appellee possessed the specific intent to kill.      More

specifically, the question is whether the prima facie evidence produced by the

Commonwealth could give rise to a reasonable inference that Appellee

intended to kill Marsicano.       We agree with the trial court that there is no


____________________________________________


his firearm when being pursued by Detective Dove. However, Detective Dove
was investigating the shooting of Wesley which “occurred earlier in the day[.]”
Id. at 442. While investigating the earlier shooting, Jackson and his cohorts
again attacked Wesley while the police were present, and a gunfight with
police erupted. Id. Not surprisingly, then, Jackson did not challenge whether
he possessed the intent to kill Detective Dove, given that that he had engaged
in a massive firefight with police, including Detective Dove, just moments
before the specific event which led to his conviction for attempted murder. In
other words, there was ample evidence of Jackson’s intent to kill beyond the
mere fact that he had raised his weapon during the pursuit by Detective Dove.

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reasonable inference of specific intent to kill that one can draw from the

narrow factual circumstances of this case.

       What is reasonable in any given case is not easily susceptible to bright-

line rules, as no such rule could ever hope to encompass all potential

circumstances. However, the courts of this Commonwealth have established

some touchstones to guide us with respect to intent-to-kill jurisprudence. For

instance, it is axiomatic that “[s]pecific intent to kill may be inferred from the

use of a deadly weapon on a vital part of the victim’s body.” Commonwealth

v. Uderra, 706 A.2d 334, 338 (Pa. 1998) (emphasis added).                   More

specifically, the “use of a deadly weapon directed at a vital organ of another

human being justifies a factual presumption that the actor intended death

unless the testimony contains additional evidence that would demonstrate a

contrary intent.” Commonwealth v. Alston, 317 A.2d 229, 231 (Pa. 1974).

This axiom clearly does not directly apply in the circumstances of this case, as

Appellee did not shoot Marsicano in a vital organ of his body, or thereabouts.

Instead, Marsicano only suffered injury in the lower part of his legs.3         If

Appellee intended that result, then he necessarily did not shoot with the

specific intent to kill Marsicano, absent extraordinary and unique factual

circumstances not present in this case. If Appellee nevertheless intended to

kill Marsicano, but simply failed to accomplish his goal, the Commonwealth

____________________________________________


3The Commonwealth does not dispute that the victim’s calves are not vital
portions of his body within the meaning of the presumption.


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bears the burden to demonstrate that the evidence supports that inference

with something more than “[s]uspicion and conjecture[.]” Carroll, 936 A.2d

at 1152.

      To be clear, the absence of the use of a deadly weapon against a vital

part of a victim’s body does not preclude a finding of intent to kill, it only

precludes the use of the presumption. See Commonwealth v. Kluska, 3

A.2d 398, 402 (Pa. 1939) (noting that the absence of the presumption does

not comprehensively rebut a finding of intent to kill, especially in cases where

a killing is accomplished by “strangulation or drowning”). In the absence of

that presumption, however, the Commonwealth must still produce some

evidence of specific intent to kill. Carroll, 936 A.2d at 1152.

      For instance, in Commonwealth v. Cross, 331 A.2d 813 (Pa. Super.

1974), the defendant argued that the Commonwealth failed to offer evidence

of his intent to kill when he fired a gun at a victim’s vehicle. The victim did

not sustain any injuries, as the bullet fortunately lodged in the door of his car.

However, this Court affirmed Cross’s conviction for attempted murder,

because the evidence demonstrated a “long standing feud” between him and

the victim’s brother. Id. at 814. Additionally, immediately prior to firing the

shot at the victim, Cross yelled out, “This is for your brother.” Id. Moreover,

the bullet had “penetrated the outer panel of the automobile door at a height

near the stomach of” the victim. Id. at 815.

      In the case sub judice, by contrast, the Commonwealth did not proffer

any evidence that Appellee verbally indicated, directly or indirectly, his intent

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to kill Marsicano, nor did any other circumstantial evidence suggest such an

intent. In Cross, the victim escaped grave harm only by an intervening metal

car door. Here, the Commonwealth offers no theory regarding why Appellee

would shoot Marsicano in the lower leg if he had formed the intent to kill. In

the narrow factual circumstances of this case, poor aim is not a reasonable

inference.    According to Marsicano’s own testimony, Appellee fired all three

shots from “2 and [a] half, 3 feet away at the max.” N.T. Preliminary Hearing,

1/8/16, at 12-13 (emphasis added).4 Thus, in a light most favorable to the

Commonwealth, the facts demonstrate that Appellee fired at Marsicano from

less than a yard away, yet only struck him in the calf, despite having initially


____________________________________________


4 According to Eberhart’s testimony at the preliminary hearing, Appellee fired
the shots from 5 feet away, rather than from 2½-3 feet away, as Marsicano,
the actual victim, contended. Id. at 33. It is not clear which fact adheres to
the rule that we must construe the facts in a light most favorable to the
Commonwealth.         Generally speaking, the Commonwealth will prefer an
accounting of the facts that suggests a shooter fired from the closest possible
range when seeking to prove his or her intent to kill, as the Commonwealth
will argue that the close proximity itself demonstrates the required intent; yet,
if the shot is fired from a greater distance, the Commonwealth seeking to
prove the same intent will inevitably argue that the shooter’s failure to cause
more damage is a result of his poor aim, rather than the absence of his intent
to kill. Which fact is more ‘favorable’ to the Commonwealth is more of a
philosophical question than a factual one. Thankfully, we need not tread into
that philosophical quagmire in the circumstances of this case, as the difference
in distance is negligible as it pertains to our analysis. The notion that
Appellee’s intent to kill is demonstrated if he fired from 5 feet away, but not
from 3 feet away, is not a reasonable one. In either case, it is clear that the
evidence cannot sustain the unreasonable inference that Appellee was aiming
his weapon with the intent to inflict lethal damage. Moreover, Eberhart
testified that Appellee fired the first shot at the pavement, casting further
doubt as to which witness’s version of events is more favorable to the
Commonwealth. See id. at 33-35.

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aimed the gun much higher. These facts, without more, cannot support a

reasonable inference that Appellee intended to kill Marsicano.

      In Commonwealth v. Jackson, 392 A.2d 1366 (Pa. 1978), the

defendant argued that the Commonwealth had not offered sufficient evidence

of specific intent to kill where, during the course of a robbery of a service

station, he had shot an attendant in the shoulder. The attendant later died

from his injuries. The Jackson Court first rejected the notion that the deadly-

weapon/vital-body-part presumption cannot arise unless a vital organ is

struck, instead concluding that the “firing of a bullet in the general area in

which vital organs are located can in and of itself be sufficient to prove

specific intent to kill beyond a reasonable doubt.”     Id. at 1368 (emphasis

added) (quoting Commonwealth v. Padgett, 348 A.2d 87, 88 (Pa. 1975)).

Furthermore, other circumstances demonstrated Jackson’s intent to kill. Id.

at 1369 (holding that Jackson’s “statement to [his accomplice] (‘He knows

me’), followed by his shooting, in the dark, one shot at the attendant and

three at the customer, and the bullet’s striking the attendant only several

inches away from a vital area, all reasonably support a specific intent to kill

on the part of” Jackson).

      Instantly, there is no similar verbal evidence of Appellee’s intent to kill.

There are also no circumstances that naturally provide a motive to kill, from

which the inference of an intent to kill can reasonably arise, such as are

present when a robber suddenly discovers that his victim could identify him

by name. Moreover, in Jackson, the Court noted that the shots had been

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fired in the dark, thereby providing some reasonable explanation as to why

Jackson, possessing the intent to kill, shot the victim in the shoulder.

      Our decision today does not conflict with our panel decisions in

Commonwealth v. Manley, 985 A.2d 256 (Pa. Super. 2009), and

Commonwealth v. Wyche, 467 A.2d 636 (Pa. Super. 1983). While some

factual circumstances in Manley were similar to the facts in this case (the

shooter fired from a close distance as the victim ran away), the victim in

Manley, Taaqi Brown, was struck by five of six shots fired, in locations all

about his body, including “the groin, thigh, shoulder and twice in the hand.”

Manley, 985 A.2d at 272.       The Manley Court cited our Supreme Court’s

decision in Padgett, where that court held that it was

      not persuaded that it must be shown that the bullet fired from a
      revolver, a deadly weapon, initially entered a vital organ before
      the inference of specific intent to kill can arise. The firing of a
      bullet in the general area in which vital organs are located can in
      and of itself be sufficient to prove specific intent to kill beyond a
      reasonable doubt.

Padgett, 348 A.2d at 88. In the instant case, not only are the victim’s calves

not vital parts of his body, but they are also not in the general area of any

vital organs.

      Moreover, in Manley, additional testimony was offered to prove intent

that was not present in the instant case. Following his arrest, Manley had

confessed to another inmate that he shot Taaqi Brown to avenge the shooting

death of his friend at the hands of one of Brown’s associates. Manley, 985

at 260.   Thus, additional evidence, beyond the mere circumstances of the


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shooting itself and locations of the wounds, tended to demonstrate Manley’s

specific intent to kill. No such evidence is present in the instant case.

      In Wyche, another case upon which the Manley Court relied, the victim

died after being shot in the hand, thigh, and pelvic area, the latter bullet

having caused “damage[ to] major blood vessels and internal organs after

entry.”   Wyche, 467 A.2d at 637.           Citing Padgett, the Wyche Court

concluded that, “[a]lthough the fatal slug entered the victim through the

buttock, the jury could properly infer the specific intent to kill from these

circumstances.” Id. It should be obvious that damage to major blood vessels

and internal organs caused by a gunshot constitutes a wound to vital parts of

the victim’s body.    Nevertheless, by citing Padgett, the Wyche Court

indicated that it was close enough for purposes of invoking the vital wound

inference, as it was in the “general area in which vital organs are located.”

Padgett, 348 A.2d 88. Again, no such evidence exists in this case.

      Manley, Padgett, and Wyche all involve determinations that the

deadly-weapon/vital-body-part presumption was properly invoked.                   That

presumption cannot be raised under the facts of this case and, therefore,

those decisions are not controlling here.

      When    we   review   evidence   in     a   light   most   favorable   to    the

Commonwealth, we are not obliged to outright ignore undisputed evidence so

as to strengthen the reasonableness of inferences we draw from the remaining

evidence.    Instead, we review all of the evidence, and ascertain whether

certain inferences suggested by the Commonwealth are reasonable; that is,

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whether it is reasonable to permit a jury to conclude that Appellee possessed

the specific intent to kill Marsicano in the unique circumstances of this case.

In this regard, the Commonwealth essentially asks this Court to ignore: the

victim’s unprovoked instigation of a confrontation with the new boyfriend of

his ex-girlfriend, the complete lack of any verbal expression of intent to kill by

Appellee despite the scuffle that occurred before the shooting, and the near

impossibility of Appellee’s missing any area near a vital portion of the victim’s

body from the range at which he fired, but for an intent to scare or harm that

fell short of specific intent to kill. To ask a jury to find that Appellee possessed

the specific intent to kill in these circumstances is tantamount to asking them

to rest a verdict on mere speculation or conjecture that Appellee just happens

to be the world’s worst shot, or that the victim only escaped more serious

injury due to divine intervention.     While not impossibilities in the strictest

sense, such inferences are simply not reasonable in the unique circumstances

of this case.

        Thus, we conclude that the Commonwealth failed to produce “evidence

of every material element of the charged offense[,]” attempted murder,

namely, the mens rea element of specific intent to kill. Carroll, 936 A.2d at

1152.     Accordingly, we ascertain no error in the trial court’s granting

Appellee’s habeas motion striking the charge of attempted murder.

        Order affirmed. Case remanded. Jurisdiction relinquished.

        President Judge Gantman, Judge Panella, Judge Shogan, Judge Lazarus,

Judge Dubow and Judge Nichols join this opinion.

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     Judge Stabile files a dissenting opinion.

     Judge McLaughlin files a dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/18




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