J-A33018-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                   Appellee               :
                                          :
              v.                          :
                                          :
MERION PACE,                              :
                                          :
                   Appellant              :    No. 116 EDA 2014

     Appeal from the Judgment of Sentence Entered September 9, 2013
           in the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No(s): CP-51-CR-0007475-2011

BEFORE:     LAZARUS, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                          FILED MARCH 24, 2015

      Merion Pace (Appellant) appeals from the September 9, 2014

aggregate judgment of sentence of 25 to 50 years’ incarceration.    We are

constrained to affirm.

      On May 30, 2011, Appellant fired multiple gunshots into a car in which

Johnny Cooper, Deandre Murphy, and Lawrence Murphy were present; only

Lawrence Murphy was hit. On April 17, 2013, a jury convicted Appellant of,

inter alia, three counts each of attempted murder and aggravated assault.

Appellant was sentenced on September 9, 2013, after which he timely filed a

post-sentence motion.     The trial court denied the motion, and Appellant

timely filed a notice of appeal on November 27, 2014.

      The trial court did not order Appellant to file a concise statement of

errors complained of on appeal.     A docket entry on February 6, 2014,


*Retired Senior Judge assigned to the Superior Court.
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indicates that no trial court opinion was filed because the trial judge was no

longer sitting.

      Appellant   presents    the   following   questions   for   this   Court’s

consideration.

      I.     Was the evidence insufficient to sustain Appellant’s
             convictions … for attempted murder(s) and aggravated
             assault(s) as to Johnny Cooper and Deandre Murphy?

      II.    Did the trial court commit reversible error by permitting
             argument and charging the jury with transferred intent?

      III.   Did the trial court commit reversible error by not charging
             the jury on an adverse inference for missing witnesses?

Appellant’s Brief at 4 (trial court answers and unnecessary capitalization

omitted).

      Appellant’s challenge to the sufficiency of the evidence is subject to

the following standard of review.

      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



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      [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.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (quoting

Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa. Super. 2014)).

      Appellant claims that the Commonwealth at trial failed to offer

sufficient evidence to establish the intent elements of attempted murder and

aggravated assault as to victims Johnny Cooper and Deandre Murphy.

Appellant’s Brief at 8-10. This Court has described the mens rea of these

crimes as follows.

            An individual is guilty of attempted murder in the first
      degree if he commits an act that is a substantial step towards
      the commission of the crime with a specific intent to kill.
      Similarly, an individual is guilty of aggravated assault if he: (1)
      attempts to cause serious bodily injury to another, or causes
      such injury intentionally, knowingly or recklessly under
      circumstances manifesting extreme indifference to the value of
      human life; [or] (4) attempts to cause or intentionally or
      knowingly causes bodily injury to another with a deadly
      weapon[.]

            … In order to sustain a conviction for aggravated assault,
      the Commonwealth does not have to prove that the serious
      bodily injury was actually inflicted but rather that the Appellant
      acted with the specific intent to cause such injury. Further,

            [w]here the victim does not sustain serious bodily
            injury, the Commonwealth must prove that the
            appellant acted with specific intent to cause serious
            bodily injury. The Commonwealth may prove intent
            to cause serious bodily injury by circumstantial
            evidence.     In     determining      whether     the
            Commonwealth proved the Appellant had the
            requisite specific intent, the fact-finder is free to
            conclude the accused intended the natural and



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            probable consequences of his actions to result
            therefrom. A determination of whether an appellant
            acted with intent to cause serious bodily injury must
            be determined on a case-by-case basis.

            A[s] intent is a subjective frame of mind, it is of
            necessity difficult of direct proof[.] We must look to
            all the evidence to establish intent, including, but not
            limited to, appellant’s conduct as it appeared to his
            eyes[.]     Intent can be proven by direct or
            circumstantial evidence; it may be inferred from acts
            or conduct or from the attendant circumstances.
            Moreover, depending on the circumstances even a
            single punch may be sufficient.

Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super. 2008) (internal

quotation marks and citations omitted).

      A review of the record reveals that the Commonwealth offered the

following into evidence at trial. On Memorial Day of 2011, Johnny Cooper

drove Deandre Murphy and Lawrence Murphy, who was visiting from

Alabama and was unfamiliar with the area, to the home of Cooper’s aunt

(Aunt Valerie) on Gratz Street in Philadelphia. N.T., 4/11/2013, at 148. As

he parked the car in front of the house, Cooper found his young cousin

playing in the street.   Id. at 150-51. Cooper informed the child that it is

“not right to be in the street,” and proceeded into Aunt Valerie’s house. Id.

at 152. The Murphy brothers remained in the car. Id. at 154.

      Inside Aunt Valerie’s house, Cooper encountered a young man

between the ages of 17 and 20 whom he had never seen before. Id. at 153.

The young man questioned who Cooper was and what he was doing in the




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house; Cooper took offense and inquired who he was to be questioning

Cooper’s presence. Id. at 157. The argument escalated, with Cooper and

the young man threatening to hit each other. Id. at 156. The young man

then made a phone call to an unknown recipient and complained about

Cooper being “around here talking trash or whatever.” Id. Cooper chose to

leave the house; no physical altercation took place. Id. at 158.

       When Cooper exited the house, he saw a group of more than 20

people approaching Aunt Valerie’s house. Id. at 158, 160. Appellant, whom

Cooper had seen around Aunt Valerie’s house before, was in the group. Id.

at 161-62. Appellant had been romantically involved for five years with Aunt

Valerie’s daughter Felicia, and was close with Aunt Valerie. N.T., 4/15/2013,

at 135.     Cooper returned to the driver’s seat of the car in which he had

arrived. N.T., 4/11/2013, at 163. Lawrence Murphy was seated in the front

passenger seat and Deandre Murphy was seated behind him. Id. The group

approached the car, and someone was saying “shoot him, shoot him.” Id.

at 58-59. As Cooper was pulling away from the curb, Appellant was on the

sidewalk, next to the front passenger side of the car, with a gun.     Id. at

168.   Appellant put his arm inside the front passenger window and fired,

hitting Lawrence Murphy. Id. at 59. Deandre Murphy jumped into the front

seat to attend to his wounded brother.    Id. at 64.   Additional shots were

fired, more than four in total, and Cooper sped off to the hospital.   Id. at

164, 169.



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      Later examination of the car revealed that one shot entered through

the rear passenger-side window, shattering it; that bullet, or another from

the same trajectory, travelled through the headrest of the front passenger

seat and struck Lawrence Murphy in the neck. N.T., 4/12/2013, at 151-52.

Another bullet had entered the front passenger window and exited though

the driver’s door. Id. at 141. Another shot entered the car through the rear

windshield, shattering it, and struck Lawrence Murphy in the chest. Id. at

150. In all, the damage to the car was consistent with a person standing on

the sidewalk next to the car and firing into the car repeatedly as it drove

away. Id. at 156.

      The Commonwealth argued that this evidence showed that Appellant

had formed the specific intent of shooting all three men in the car:

      attempted murder requires the willful, deliberate premeditated,
      intentional act of attempting to kill another person. This is not
      as complicated as it might sound, it really just means that in an
      instant you formulate the desire and you have shown the intent
      that you’re going to try to take another human being’s life.

             And when you walk up to a person, I don’t care if it’s five
      feet, 10 feet or 15 feet. You point a gun at them and you fire at
      least four or five shots at a car that they’re in from point blank
      range. And apparently, you see the blood splatter everywhere,
      you hear a person say I’m shot and that the vehicle is driving
      away. And you keep pulling that trigger one, two, three, four,
      five times. You’ve shown that you have the hardness of heart.
      You’ve shown that you’re delivering the message that you want
      to deliver. That you don’t come to Gratz Street and tell us,
      some distant family member, how we’re going to live. You don’t
      come and threaten that other kid that’s inside the house. He’s
      one of ours. He’s one of [Appellant’s].




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           And essentially, you have to die to understand your place.
     That’s Lawrence Murphy. That’s what he learned from Appellant
     that day.

            He’s charged with the attempted murder of the other two
     people in the [] vehicle. Because I’ll be honest with you, I don’t
     think he cared who he killed. He was probably realistically trying
     to kill Johnny [Cooper]. I mean, that one bullet that clearly
     went through the driver side door, that was meant for Johnny.
     Lawrence, again, who doesn’t know anybody from a can of paint.
     He’s the one who got victimized for Johnny’s temper, his
     argument and just being in the wrong place at the wrong time.

            Deandre, I don’t even know that anybody knows that
     Deandre exists at this point in time either. Just like Lawrence.
     Sitting in the car. But again, Deandre is in that vehicle at the
     time that those shots are being fired at him. Especially from the
     back. Deandre in the back seat, some of those bullets had to go
     right past Deandre, right by his head to hit Lawrence.

            Aggravated assault. You have either one of two ways that
     you’re going to hear about this. You either have the intention to
     inflict serious bodily injury or you actually inflict it.   Well,
     Lawrence had serious bodily injury inflicted upon him. …

           [Appellant] acted with the intent to inflict serious bodily
     injury. And he acted with the intent to do it to all three. He
     actually inflicted it on Lawrence. But the fact that he didn’t hit
     the other two people doesn’t mean he’s not guilty of that crime.
     It means he’s guilty of the same crime, he just intended to do it
     and didn’t accomplish his goal.

 N.T., 4/15/2013, at 186-88.

     Appellant does not dispute that the evidence was sufficient to support

the attempted murder and aggravated assault charges as to Lawrence

Murphy, who was shot in a vital part of his body and gravely injured. He

challenges only the intent elements of his convictions as to Johnny Cooper

and Deandre Murphy.



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      From our review of the record, we have no hesitation in holding that

the Commonwealth offered sufficient evidence for the jury to conclude

reasonably that Appellant had the specific intent to kill and/or inflict serious

bodily injury upon Johnny Cooper, the one man in the car who had argued

with several people inside and outside of the house of the mother of

Appellant’s long-term girlfriend.    From the totality of the circumstances

surrounding the shooting, it was well within the province of the jury to find

that Appellant pointed his gun and fired at Johnny Cooper, and Lawrence

Murphy was merely unfortunate in being caught between shooter and target.

See, e.g., Commonwealth v. Woods, 710 A.2d 626, 631 (Pa. Super.

1998) (“[T]he jury was certainly entitled… to find the necessary intent to

support an aggravated assault charge from the fact that appellant fired his

weapon into [the victim’s] vehicle while he occupied it.”).

      However, the resolution of Appellant’s sufficiency challenges to the

convictions with Deandre Murphy as the victim is far less clear, and it

implicates Appellant’s second issue on appeal regarding transferred intent.

      To meet its burden of proof on the charge of the attempted murder of

Deandre Murphy, the Commonwealth had to prove that Appellant acted with

the specific intent to kill Deandre Murphy.       Similarly, because Deandre

Murphy was uninjured, to sustain the aggravated assault conviction, the

Commonwealth was required to prove that Appellant attempted to cause

serious bodily injury to Deandre Murphy.       See Holley, 945 A.2d at 247



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(“[W]here   the   victim   does   not     sustain   serious   bodily   injury,   the

Commonwealth must prove that the appellant acted with specific intent to

cause serious bodily injury.”) (internal quotation marks and citations

omitted).     However, the Commonwealth acknowledged in its closing

argument that there is no evidence or suggestion that, when Appellant fired

at Johnny Cooper, and instead hit Lawrence Murphy, “anybody kn[ew] that

Deandre exists at this point in time….”       N.T., 4/15/2013, at 187.

      Clearly, Appellant could not have formed the specific intent to kill or

seriously injure someone of whose existence he was unaware.                      The

Commonwealth further highlighted the lack of evidence of intent as to

charges related to Deandre Murphy in its argument in response to

Appellant’s motion for judgment of acquittal,

      it’s not necessarily clear at that point with those final shots,
      whether or not [Appellant] had the specific intent to kill
      [Deandre] Murphy, but he arguably could.        He could have
      arguably been shooting at Mr. Deandre Murphy and hit Mr.
      Lawrence Murphy. He could have been also attempting to shoot
      Johnny Cooper and hit Lawrence Murphy.

            … All that I have to show [is] that [Appellant] … had
      specifically formed the specific intent, had hardened his heart to
      such capacity that he was willing to take another life and that he
      took a substantial step towards completing that action.

             Now, I’m not hamstrung by proving that he had to have
      the specific intent to kill each single individual in the car. … But
      I’d ask for that transferred intent instruction because it’s
      probable, very likely that he had … formed the specific intent to
      kill Mr. Cooper, and the intent of the person who was involved in
      the initial argument.




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           But in that process, he exposed Mr. Murphy, Deandre
     Murphy and Mr. Lawrence Murphy to the exact same risk. And
     therefore, his intent transferred to those people who were at
     risk.

N.T., 4/15/2013, at 78-79.

     Evidence merely supporting the possibility that Appellant’ had the

specific intent to kill Deandre Murphy is insufficient to prove beyond a

reasonable doubt that Appellant had the intent to kill or harm him.

Commonwealth v. Ockenhouse, 756 A.2d 1130, 1135 (Pa. 2000) (noting

that the Commonwealth must prove each element of the offense beyond a

reasonable    doubt).     Indeed,   in   the   argument     quoted   above,   the

Commonwealth tacitly conceded that its case as to Deandre Murphy

depended     upon   Appellant’s   homicidal    intent   towards   Johnny   Cooper

transferring to Deandre Murphy.

     The doctrine of transferred intent is codified in the following statute:

     Divergence between result designed or contemplated and
     actual result.--When intentionally or knowingly causing a
     particular result is an element of an offense, the element is not
     established if the actual result is not within the intent or the
     contemplation of the actor unless:

             (1) the actual result differs from that designed or
             contemplated as the case may be, only in the respect that
             a different person or different property is injured or
             affected or that the injury or harm designed or
             contemplated would have been more serious or more
             extensive than that caused; or

             (2) the actual result involves the same kind of injury or
             harm as that designed or contemplated and is not too




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             remote or accidental in its occurrence to have a bearing on
             the actor’s liability or on the gravity of his offense.

18 Pa.C.S. § 303(b).

      Our Supreme Court addressed the applicability of the doctrine in the

factually-similar aggravated assault case of Commonwealth v. Thompson,

739 A.2d 1023 (Pa. 1999).        In that case, Francisco Forbes worked for

marijuana dealer Donovan Aitken, serving as a driver and collector of

accounts receivable.    On the day in question, Forbes drove to Aitken’s

apartment.     On his way from the car to the apartment, Thompson

approached Forbes to bum a cigarette. Forbes entered the apartment and

exited a short time later with Aitken. Forbes saw Thompson pull out a gun

and begin firing towards them.     Aitken was hit and fell.   Forbes believed

initially that he had been hit, but discovered that he had not and was able to

run back to the apartment building. Forbes then saw Thompson approach

Aitken’s prone body and shoot him several more times. In addition to the

murder of Aitken, Thompson was convicted of aggravated assault as to

Forbes.

      On appeal, Thompson claimed that the evidence was insufficient to

sustain his aggravated assault conviction, and challenged the trial court’s

jury instruction on transferred intent. Thompson argued that the fact that

Forbes was neither shot nor an intended victim rendered the instruction




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inapplicable. Id. at 1029. Our Supreme Court held that transferred intent

was implicated by the proven facts.

      [I]n order to sustain the conviction for aggravated assault, the
      Commonwealth only needed to establish that [Thompson]
      attempted to cause serious bodily injury.           There is no
      requirement that the victim actually be injured.       Moreover,
      [Thompson’s] argument that the transferred intent instruction
      was not warranted because he did not intend to shoot Forbes
      ignores the essence of the transferred intent doctrine, that is,
      the person who ultimately is the victim not be the original
      intended victim.16 The transferred intent theory provides that if
      the intent to commit a crime exists, this intent can be
      transferred for the purpose of finding the intent element of
      another crime.        The evidence here demonstrated that
      [Thompson] shot in the direction of Forbes even though he may
      have only intended to shoot Aitken. This evidence was sufficient
      to warrant the transferred intent instruction. …
            _____
            16
                The jury could also have concluded that Forbes was also
            an intended victim of [Thompson] as he had initially
            believed that he had been shot and was a potential witness
            if [Thompson] was later apprehended.

Id. at 1029-30 (internal citations and quotation marks omitted).

      This Court was called upon to apply Thompson in Commonwealth v.

Jackson, 955 A.2d 441 (Pa. Super. 2008). In that case, Jackson and others

made an attempt to murder Charles Wesley while Wesley was in the midst of

a group of police officers who were investigating an earlier attempt on

Wesley’s life. In so doing, Jackson fired his gun in the vicinity of seven other

people on the scene, and was correspondingly convicted of seven counts of

aggravated assault. On appeal, Jackson claimed, similar to Appellant in the




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case sub judice, that the evidence was insufficient to sustain those

convictions:

      While [Jackson] admits that he intended to shoot Wesley,
      [Jackson] contends that these other persons were simply in the
      way.     [Jackson] argues that the Commonwealth failed to
      establish that he had the specific intent to cause serious bodily
      injury to any of these persons, and thus, the requisite intent for
      his aggravated assault convictions is lacking.

Id. at 445-46. This Court agreed with Jackson:

      the evidence shows that [the seven individuals who served as
      the victims for the seven counts of aggravated assault] were
      near [Jackson’s] intended victim. The evidence shows that
      [Jackson] fired a deadly weapon toward them.            There is,
      however, no other evidence, in the form of circumstances,
      actions or words, occurring before, during, or after the shooting,
      that tends to demonstrate that [Jackson] specifically intended to
      inflict injury upon these particular persons. Therefore, the only
      circumstance in the record from which it may be inferred that
      [Jackson] had the intent to cause these persons serious bodily
      injury was his firing a deadly weapon in their direction. Based
      upon the totality of the circumstances, we conclude that the
      evidence was insufficient to establish beyond a reasonable doubt
      that [Jackson] harbored the specific intent to cause serious
      bodily injury with a deadly weapon to any of these persons.

Id. at 448. The Commonwealth argued, as it did in the instant case, that

the intent element of the assaults was satisfied under the doctrine of

transferred intent.

            The Commonwealth argues that under the doctrine,
      [Jackson’s] admitted intent to shoot and cause Wesley serious
      bodily harm, satisfies the intent element for [Jackson’s]
      aggravated assault convictions of these persons.        [Jackson]
      counters that the doctrine of transferred intent does not apply in
      this case because these persons were not actually injured. It is
      [Jackson’s] position that the doctrine is not meant to apply and
      has not been applied to a charge of aggravated assault, when



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     criminal liability is premised on the attempt to cause serious
     bodily injury to another.     [Jackson] further argues that 18
     Pa.C.S.A. § 303(b), enacted to reflect existing law, reveals that
     the doctrine is to be used only where a defendant shoots a gun
     at a person, intending to cause serious bodily injury, but hits
     another, or where the defendant shoots the intended victim, but
     does not cause serious harm.

Id. (internal citation omitted) (citing State v. Brady, 903 A.2d 870 (Md.

2006) (holding that the doctrine of transferred intent is inapplicable to

crimes of attempt because, in such instances, the defendant commits a

complete crime against the intended victim)).

     Upon consideration of Thompson, this Court was constrained to agree

with the Commonwealth that Jackson’s specific intent to kill Wesley

transferred to the seven bystanders, satisfying the intent elements for

Jackson’s aggravated assaults of those seven people. However, this Court

urged our Supreme Court to overrule Thompson:

     While we are bound by our Supreme Court’s ruling in
     Thompson, we respectfully urge the Court to reconsider it. In
     our view, the doctrine of transferred intent as set forth by the
     Supreme Court of Maryland in Brady is persuasive. It retains
     the commonly understood notion that the unintended victim
     must be actually injured before the doctrine of transferred intent
     maty apply. It is also consistent with the language in 18
     Pa.C.S.A. § 303(b), and the statute’s aim to codify existing law.

Jackson, 955 A.2d at 450 n.6 (citations omitted).

     Given this precedent, we must affirm Appellant’s convictions and

sentence as to Deandre Murphy. Appellant fired shots which nearly missed

hitting Deandre Murphy, satisfying the attempt (substantial step) elements




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of attempted murder and aggravated assault.          Under Thompson and

Jackson, Appellant’s intent to kill or seriously injure Johnny Cooper

transferred to Deandre Murphy, despite his lack of actual injury, satisfying

the intent elements of the crimes. While this result appears to conflict with

common understanding of the doctrine as well as the express language of

the relevant statutes, we cannot overrule our Supreme Court.1

      In his final issue on appeal, Appellant challenges the trial court’s

failure to instruct the jury that it may make an adverse inference from the

fact that the Commonwealth did not call Deandre Murphy to testify at trial.

Appellant’s Brief at 16.

            When a potential witness is available to only one of the
      parties to a trial, and it appears this witness has special
      information material to the issue, and this person’s testimony
      would not merely be cumulative, then if such party does not
      produce the testimony of this witness, the jury may draw an
      inference that it would have been unfavorable.

      This Court has delineated the circumstances which preclude
      issuance of the instruction.

            1. The witness is so hostile or prejudiced against the
            party expected to call him that there is a small
            possibility of obtaining unbiased truth;

            2. The testimony of such a witness is comparatively
            unimportant, cumulative, or inferior to that already
            presented;

            3. The uncalled witness is equally available to both
            parties;

1
 We, as did the majority in Jackson, urge our Supreme Court to overrule
Thompson.


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              4. There is a satisfactory explanation as to why the
              party failed to call such a witness;

              5. The witness is not available or not within the
              control of the party against whom the negative
              inference is desired; and

              6. The testimony of the uncalled witness is not within
              the scope of the natural interest of the party failing
              to produce him.

          To invoke the missing witness instruction against the
      Commonwealth, the witness must only be available to the
      Commonwealth and no other exceptions must apply.

Commonwealth v. Boyle, 733 A.2d 633, 638 (Pa. Super. 1999) (internal

quotation marks and citations omitted).

      We are unconvinced that Appellant is entitled to relief. First, Appellant

fails to establish that he requested the instruction or objected to its

omission.2     See Pa.R.Crim.P. 647(B) (“No portions of the charge nor

omissions from the charge may be assigned as error, unless specific

objections are made thereto before the jury retires to deliberate.”). Second,

the record fails to show that Deandre Murphy, who had relocated to Alabama

after the shooting, was within the exclusive control of the Commonwealth

and that no exception, such as a satisfactory explanation for its failure to call

him as a witness, applied.         Accordingly, Appellant has failed to meet his

burden   of    persuading   this    Court   that   relief   is   due.   See,   e.g.,

2
  Although Appellant cites to the trial transcripts in his brief where the issue
purportedly was raised, Appellant’s Brief at 16-17, we have found no
discussion of the instruction at the cited pages or elsewhere in the record.


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Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007) (“An

appellant … has the burden to convince us that there were errors and that

relief is due because of those errors.”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 3/24/2015




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