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                                  2018 PA Super 313

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellant

                        v.

    STEPHEN PREDMORE

                             Appellee                   No. 238 EDA 2017


           Appeal from the PCRA Order entered December 12, 2016
              In the Court of Common Pleas of Monroe County
              Criminal Division at No: 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.

DISSENTING OPINION BY STABILE, J.:               FILED NOVEMBER 27, 2018

       I respectfully dissent from the Majority’s decision to affirm the trial

court’s order granting the pretrial petition for writ of habeas corpus of

Appellee/defendant, Stephen Predmore, on the charge of attempt to commit

criminal homicide. 1 The trial court found the Commonwealth failed to present

sufficient prima facie evidence that Appellee had a specific intent to kill the

victim, Alexander Marsicano. The Majority agrees, but does so by failing to

view the Commonwealth’s prima facie evidence in the best light to which it is



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1 “Criminal Homicide” is classified as murder, voluntary manslaughter, or
involuntary manslaughter. 18 Pa.C.S.A. § 2501(b). Murder in turn is
classified as murder either in the first, second, or third degree. 18 Pa.C.S.A.
§ 2502(a)–(c). The crime charged in this case is attempt to commit first
degree murder. The Majority correctly observes that the crime of attempted
second or third degree murder does not exist. See Commonwealth v.
Geathers, 847 A.2d 730, 734 (Pa. Super. 2004).
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entitled and by impermissibly weighing the prima facie evidence as if it were

a jury deciding this case.

      The Majority appropriately recognizes that our standard of review of a

decision to grant a pretrial petition for a writ of habeas corpus is to examine

the evidence and reasonable inferences derived therefrom in a light most

favorable to the Commonwealth, and that as a question of law, this Court’s

review is plenary.    Majority Opinion at p.3-4, citing Commonwealth v.

Dantzler, 135 A.3d 1109, 1111-12 (Pa. Super. 2016). In the pretrial setting,

the focus of a habeas corpus hearing is to determine whether sufficient

evidence exists to hold a defendant in government custody until he may be

brought to trial.    Commonwealth v. Fowlin, 676 A.2d 665 (Pa. Super.

1996), citing Commonwealth v. Owen, 580 A.2d 412, 413 (Pa. Super.

1990).   The habeas corpus petition is similar in purpose to a preliminary

hearing. Id. In making a pretrial determination, a court is not limited to

reviewing the evidence presented at a preliminary hearing.           Id.   The

Commonwealth also may present additional evidence at the habeas corpus

stage in an attempt to establish a prima facie case that a crime has been

committed and that the accused is the person who committed the crime. Id.

A pretrial petition for a writ of habeas corpus is the procedure for testing

whether the Commonwealth has furnished prima facie evidence against the

defendant at his preliminary hearing. Commonwealth v. Carroll, 936 A.2d

1148, 1152 (Pa. Super. 2007), appeal denied, 947 A.2d 735 (Pa. 2008).




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      The prima facie hurdle is less demanding than the Commonwealth’s

burden at trial of proving guilt beyond a reasonable doubt. Commonwealth

v. McBride, 595 A.2d 589, 591 (Pa. 1991). A prima facie case exists when

the Commonwealth produces evidence of each of the material elements of the

crime charged and establishes sufficient probable cause to warrant the belief

that the accused committed the offense. Id. The evidence need only be such

that, if presented at trial and accepted as true, a judge would be warranted in

permitting the case to go to a jury. Commonwealth v. Hilliard, 172 A.3d

5, 10 (Pa. Super. 2017). Further, as stated, “the evidence must be considered

in the light most favorable to the Commonwealth so that inferences that would

support a guilty verdict are given effect.” Id. “The weight and credibility of

the evidence is not a factor at this stage.” Id.

      Here, at the habeas hearing, the Commonwealth presented testimony

from the investigating State Police trooper in addition to admitting into

evidence the transcript from the preliminary hearing. Therefore, to comply

with our appropriate standard of review, I initially shall set forth the prima

facie evidence, before considering the legal question raised, viewing it in a

light most favorable to the Commonwealth.

      Marsicano, the victim, was the first witness called by the Commonwealth

at the preliminary hearing held on January 8, 2016.          He testified that

Cheyenne Eberhart was his ex-girlfriend as of December 12, 2015, the date

of the incident in question. N.T. Preliminary Hearing, 1/8/16, at 5. He was

on his way home and driving past her residence. Id. at 5-6. He stopped in

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the parking lot by Eberhart’s apartment next to a truck owned by Appellee

with whom he used to be friends. Id. at 6–7. He got out of his vehicle and

at some point Appellee appeared. Appellee walked to his truck and got into

an argument with Marsicano that then escalated into a fight. Id. at 7. Before

fighting, Marsicano said to Appellee that it was “messed up how he was talking

to [Eberhart] behind my back.” Id. at 8. At that point, the argument ensued

and Appellee shoved Marsicano, who then shoved him back before the two

broke out into a fight. Id. They were both shoving and punching each other

in the face and chest. Id. at 9. Eberhart came out of her apartment and tried

to break up the fight by getting between the two of them and pushing them

away. Id. at 9-10. At that point, Marsicano backed up. Appellee went to his

truck. Id. at 10. Marsicano was about a foot away from the truck, but about

3 or 4 feet away from Appellee. Id. at 11. Appellee opened the door to his

vehicle, opened the glove box, put a clip into a pistol, cocked it, and then

pointed it at Marsicano. Id. at 11. Marsicano testified he was approximately

2½ to 3 feet away at the time Appellee pointed the gun at him and let off 3

shots. Id. at 12-13. When the first shot was fired Marsicano had his back to

Appellee and was in the process of running away when Appellee let off two

more shots. Id. at 12-13. He attempted to turn and run away when he first

saw the firearm. Id. at 13. He was hit in the back of both calves. Id. at 13.

     Upon cross-examination, Marsicano reiterated that he dated Eberhart

for about six months and that their relationship ended a couple months before

the incident in question. Id. at 17. Eberhart lived right off the Route 115 on

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Valley Road. Id. He could see her house from Route 115. Id. He left Route

115 in order to go by Eberhart’s home. Id. He did so at approximately 12:45

a.m. Id. He went to Eberhart’s home because he saw Appellee’s truck in the

parking lot of her apartment complex. Id. He found this problematic because

Appellee was always trying to talk to Eberhart behind his back when they were

together. Id. at 18–19. He got out of his vehicle in the parking lot to verify

if what he saw was Appellee’s vehicle. Id. at 20. He was going to go back to

his car and proceed home when Appellee came outside. Id.           It was at that

point Appellee approached him and started having a conversation with him.

Id. at 20-21. They then wound up fighting and Eberhart came out of the

apartment to break up the fight. Id. at 21. She pushed them apart. Id. He

did not know at the time why Appellee went to his truck, but he heard a gun

being loaded and cocked and watched it being pointed at him.           Id. at 22.

Appellee turned towards Marsicano and Marsicano then went to run before

Appellee let off three shots. Id. He claimed that Appellee did not say anything

to him; he just shot. Id. at 22, 24. He had his back to Appellee when he was

shot while running. Id. at 22-23. When Marsicano saw the gun being pointed

at him it was pointing at his chest to face level. Id. at 24. It was at that point

he turned and started running and was shot while his back was to Appellee.

Id. at 24. Marsicano admitted that he did have past altercations with Appellee

and engaged in arguments and fights that involved Eberhart when Marcicano

was dating her. Id. at 27. Specifically, he and Appellee argued over Appellee




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trying to talk to Eberhart when Marsicano was dating her. Id. at 27. This

occurred approximately two months before they broke up. Id.

      Eberhart testified next on behalf of the Commonwealth. She testified

that on December 12, 2015, she was at her apartment with Appellee watching

a movie. Id. at 29. Appellee left her residence to go outside after she received

a phone call from a blocked ID put in place after previous harassment from

Marsicano. Id. at 29-30. She watched Appellee walk to the end of a sidewalk,

make a right to the parking lot, and immediately heard fighting. Id. at 30.

At that point, she could not see what was taking place, but ran to the side of

the building and witnessed Marsicano and Appellee fighting. Id. at 30–31.

She attempted to break up the fight by stepping between them when they

were arguing as she was yelling at them. Id. at 31. She did not see Appellee

go to his truck or anything in his hands. Id. at 32. After she broke the men

apart the first time, they again began to argue, leading to a second fight. Id.

at 32. She testified that the fighting did not break then because a gun was

visible to her at which time she saw Marsicano grab Appellee’s arms telling

him to shoot him while the gun was flailing in the air. Id. The last thing she

saw was Marsicano grabbing Appellee’s arms and Appellee stating to

Marsicano “the gun is loaded, you idiot.” Id. at 32 – 33. She then heard the

gun go off and observed Marsicano facing Appellee from approximately 5 feet

away. Id. at 33. The men were not touching each other. Id. She testified

the first shot she saw was aimed at the pavement. Id. While she heard a

second shot, she never saw it. Id. Appellee then got into his vehicle to leave

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while Marsicano was still standing before Marsicano then laid down on the

ground and started vomiting. Id. at 33–34.

       Upon cross-examination, Eberhart again testified that she and Appellee

were watching a movie at her residence and that she previously had a

relationship with Marsicano for about four months that ended about mid-

October before the December incident. Id. at 35 – 36. Marsicano had been

in constant contact, harassing her from mid-October to December 12, 2015.

Id. at 36. Consequently, she blocked him on all social media and had his

phone number blocked. Id.      Nonetheless, Marsicano continued to use text

apps on his phone to contact her daily and to harass her every day that

eventually caused her to secure a Protection from Abuse (“PFA”) order against

him.   Id. at 36–37.   When the initial fight broke up, both Marsicano and

Appellee took a step back from each other and continued arguing verbally.

Id. at 38. Less than a minute lapsed before the second round of fighting

began. Id. She disagreed with Marsicano’s testimony that there was only

one round of fighting before he stepped back after she broke it up. Id. She

also disagreed with Marsicano’s testimony that after he first saw the gun he

turned and began to run away. Id. She never saw Marsicano turn to run

away, testifying that when the second round of fighting began Marsicano

grabbed Appellee’s arms telling him to shoot him. Id. at 39. She did not

observe Appellee threaten Marsicano after he retrieved his gun. Id. Rather,

Marsicano grabbed Appellee’s arms while the gun was flailing in the air when

Appellee stated to Marsicano, “the gun’s loaded, you fucking idiot.” Id. at 40.

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She was fearful of Marsicano because he was grabbing Appellee’s arms. Id.

Eberhart testified that Marsicano was telling Appellee to shoot him, saying “I

dare you, motherfucker.”    Id.   She stated that Marsicano appeared to be

intoxicated when he appeared at her home and engaged in the fight with

Appellee. Id. at 41–42.

     Upon redirect, Eberhart confirmed again that, when she heard the first

shot, Marsicano was approximately five feet away from Appellee and there

was no physical contact at that point. Id. at 44. Upon re-cross, she testified

again that the first shot went into the ground. Id.

     The final witness to testify at the preliminary hearing was Pennsylvania

State Police Trooper Jeffrey Kowalski, who responded to the December 12,

2015 incident. Id. at 46. He testified that Appellee indicated he was acting

in self-defense in order to stop the beating. Id. at 50. In his affidavit of

probable cause, Trooper Kowalski stated that the argument turned physical,

and that upon breaking away from one another, Appellee went to his truck,

opened the passenger door, obtained a Ruger model SR 9C9-millimeter pistol,

pointed the gun in the direction of Marsicano, and discharged three rounds.

Id. at 51–52.     At the conclusion of Trooper Kowalski’s testimony, the

magistrate bound the charges over for court.

     Appellee again filed a petition for a writ of habeas corpus with the trial

court. A hearing was held on June 20, 2016. At that time, the Commonwealth

submitted the transcript from the preliminary hearing as an exhibit.      N.T.

Hearing, 6/20/16, at 3. The Commonwealth again called Trooper Kowalski to

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testify.   He again testified that he responded to a shooting at Eberhart’s

residence and that he had an opportunity to speak with Appellee. Id. at 6.

Appellee advised the trooper what happened that evening and provided a

verbal and written statement. Id. at 7. Appellee admitted that he retrieved

a firearm from his truck that was located in the parking lot of Eberhart’s

apartment building. Id. He obtained it from the center console. Id. Appellee

did not have a permit to conceal the weapon. Id. On cross-examination, the

Trooper indicated he spoke to four individuals on the evening of the incident,

but none were ever asked if there was a specific intent to kill Marsicano that

evening. Id. at 11. Instead, individuals provided statements indicating that

the gun was fired in the direction of Marsicano by Appellee. Id. The Trooper

confirmed that Appellee indicated he was at Eberhart’s residence on the

evening of the incident to watch a movie. Id. at 12. His understanding was

that Marsicano appeared at the incident site while driving up Route 115 when

he was able to see the rear of Eberhart’s residence and Appellee’s truck parked

there.     Id. at 12. He knew that Marsicano and Eberhart were formerly

boyfriend and girlfriend. Id. at 12-13. Marsicano confirmed to the Trooper

that he stopped because he saw Appellee’s truck at Eberhart’s home. Id. at

13. Marsicano indicated that Appellee approached him in the parking lot of

the apartment complex and that a fight ensued that began with a verbal

altercation before it became physical. Id. The gun was retrieved after the

fight became physical, a shoving match started, the men ended up on the

ground, and that, after they were separated, Appellee went to his vehicle and

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obtained the gun.    Id. at 13–14.   Marsicano and Appellee were separated

when the shots were fired, Id. at 14, and witnesses who provided statements

to Trooper Kowaski also indicated that after the gun was obtained, Marsicano

and Appellee struggled again, but then became separated and that is when

the shots were fired. Id.

      Upon cross-examination, Trooper Kowalski indicated that Marsicano

stated he was shot twice in his legs and that he feared for his life when the

gun was pointed at him. Id. at 15. One bullet struck the victim in his lower

right leg and one in the lower left leg. Id. at 16. Finally, he indicated that

Marsicano showed up to Eberhart’s house uninvited and that Appellee

indicated he was simply defending himself to stop the beating perpetrated by

Marsicano. Id. at 18.

      A crime generally consists of two elements, a physical, wrongful deed,

the actus reus, and a guilty mind that produces the act, the mens rea.

Commonwealth v. Ricker, 170 A.3d 494, 502, n. 7 (Pa. 2017) (Saylor, C.J.,

concurring). The Crimes Code provides that “[a] person commits an attempt

when with intent to commit a specific crime [the mens rea], he does any act

which constitutes a substantial step [the actus reus] towards the commission

of the crime.” 18 Pa.C.S.A. § 901(a). A conviction for attempted murder

requires the Commonwealth to prove beyond a reasonable doubt that a

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

goal. Commonwealth v. Blakeney, 946 A.2d 645 (Pa. 2008). “[I]n the




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attempt setting, the mens rea level of ‘intentionally’ attaches to the result.”2

Commonwealth v. Roebuck, 32 A.3d 613, 622 (Pa. 2011); see Roebuck,

32 A.3d at 622 n.20 (“[T]o be guilty of criminal attempt, a defendant’s

conscious objective must be to cause the result necessary to the substantive

crime.”).     Thus, to prove that Appellant had the mens rea for attempted

murder, the Commonwealth had to establish that Appellee had the “conscious

objective,” that is, the goal, of killing the victim. Cf. Commonwealth v. Hall,

830 A.2d 537, 541 (Pa. 2003) (to prove defendant had mens rea for

aggravated assault, Commonwealth was required to prove that he had

“conscious object to inflict serious bodily injury” on victim). “The mens rea

required for first-degree murder, specific intent to kill, may be established

solely from circumstantial evidence.” Commonwealth v. Schoff, 911 A.2d

147, 160 (Pa. Super. 2006) (citation omitted). It also may be established


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2In Commonwealth v. Clopton, 289 A.2d 455 (Pa. 1972), our Supreme
Court offered a classic definition of attempt, to wit:

            An attempt … is an overt act done in pursuance of an intent
            to do a specific thing, tending to the end but falling short of
            complete accomplishment of it. In law, the definition must
            have this further qualification, that the overt act must be
            sufficiently proximate to the intended crime to form one of
            the natural series of acts which the intent requires for its full
            execution. So long as the acts are confined to preparation
            only, and can be abandoned before any transgression of the
            law or of others’ rights, they are within the sphere of intent
            and do not amount to attempts.

Clopton, 289 A.2d at 457-58, citing Commonwealth v. Ellis, 37 A.2d 504,
505-06 (Pa. 1944).

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through    a     combination   of    direct   and    circumstantial    evidence.

Commonwealth v. Alford, 880 A.2d 666, 671 (Pa. Super. 2005) (citations

omitted), appeal denied, 890 A.2d 655 (Pa. 2005). “Specific intent may be

formed in an instant.” Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa.

Super. 2010) (citation omitted), appeal denied, 14 A.3d 826 (Pa. 2011).

      The Majority states that for purposes of this appeal, it is undisputed that

Appellee took a substantial step toward the commission of a killing. See

Majority Opinion at p. 7. I agree. The sole issue presented here challenges

the trial court’s determination that the Commonwealth failed to present

sufficient prima facie evidence of Appellee’s specific intent to kill. I conclude

the Commonwealth presented more than enough prima facie evidence of

specific intent to kill to allow the charge of attempted criminal homicide to

proceed to a jury trial.

      Viewed in a light most favorable to the Commonwealth, the evidence

adduced during the preliminary hearing and before the trial court established

the following.    Prior to December 12, 2015, animosity existed between

Marsicano and Appellee based upon Marsicano’s belief that Appellee had been

communicating with Eberhart while Marsicano and she were dating.              On

December 12, 2015, at or about 12:45 a.m., Marsicano was driving past

Eberhart’s residence when he noticed Appellee’s truck parked outside her

apartment. He turned off the highway and stopped his vehicle in the parking

lot next to Appellee’s truck outside Eberhart’s apartment.        Appellee was

visiting Eberhart at the time. Despite Eberhart complaining about Marsicano

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harassing her prior to this time and securing a PFA order against him,

Marsicano proceeded to call Eberhart while she was in her apartment with

Appellee. Given the acrimonious history between Marsicano and Appellee and

Appellee’s belief that Marsicano was outside Eberhart’s apartment, Appellee

went to the parking lot outside Eberhart’s apartment and found Marsicano in

the parking lot next to his truck.     A fistfight eventually ensued between

Appellee and Marsicano because Appellee believed the victim was trying to

harass Eberhart who was then his girlfriend. The two men began quarreling

and exchanging shoves and punches. Eberhart arrived and managed to step

in between them and break up the fight.

      Instead of ceasing hostilities, Appellee intentionally and purposefully

went to his truck to procure a gun with the intent of firing it at Marsicano.

Thereafter, Appellee walked over to his truck, opened the door, retrieved a

gun from the glove compartment, loaded the gun, cocked it, turned toward

Marsicano and pointed the gun at his face to chest to level.      According to

Marsicano, he was several feet away from Appellee when Appellee pointed his

gun at his face and chest before firing three shots at him.      At this point,

Marsicano stated that he feared for his life. According to Eberhart, Marsicano

grabbed Appellee’s arms and while the gun was flailing in the air, Appellee

warned Marsicano that the gun was loaded.         Not taking heed, Marsicano

taunted Appellee to go ahead and shoot him. Appellee fired three shots. The

first hit the pavement. The second and third hit Marsicano in his left and right

calves while he was attempting to run away from Appellee, thus evidencing

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that the second and third shots were not meant to scare, but to harm the

victim.

       Unlike the trial court and Majority, I conclude that the Commonwealth

submitted ample prima facie evidence of a specific intent by Appellee to kill

Marsicano. The mens rea of Appellee’s specific intent to kill had its origins in

the acrimony between Marsicano and Appellee that existed prior to the date

in question. This pre-existing acrimony evolved into a fistfight on the night in

question. As the evidence indicates, after the fight, Appellee went to his truck

to retrieve his gun, loaded and cocked it, and then pointed it at Marsicano’s

face and chest, sufficiently evidencing a specific intent to kill. Marsicano told

trooper Kowalski that he feared for his life when Appellee pointed the gun at

him.   “A gun is a lethal weapon; pointing it towards a person, and then

discharging it, speaks volumes as to one’s intention.” Commonwealth v.

Hall, 830 A.2d 537, 543 (Pa. 2003). Firing multiple shots speaks even more

loudly as to Appellee’s intent. Id. (firing two shots “evidenc[es] a more settled

intent . . . than a single shot”). The Majority briefly mentions these acts in its

summary of the facts, Majority Op. at 6, but fails to construe them in the light

most favorable to the Commonwealth. Thus, the Commonwealth presented

sufficient facts to establish prima facie evidence of a specific intent to kill by

Appellee.

       In its opinion disposing of Appellee’s motion for habeas corpus relief,

the trial court concluded that the Commonwealth did not establish a specific

intent to kill for the crime of attempted murder. The trial court arrived at this

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conclusion relying upon case law that “a specific intent to kill may be inferred

from the use of a deadly force upon a vital part of the human body.” Trial

Court Opinion, 12/12/16 at p. 3-4, citing Geathers, 847 A.2d at 737 (citation

omitted in original). From this, the trial court concluded that since the lower

legs are not a vital part of the body and Marsicano was shot in his calves below

the knee, it could not find any specific intent to kill had been established. Id.

at 4. I disagree.

      The statement that a specific intent to kill may be inferred from the use

of a deadly force upon a vital part of the human body is merely a presumption

of fact that permits a jury to find intent from the use of a deadly weapon upon

a vital part of the body.   Commonwealth v. O’Searo, 352 A.2d 30 (Pa.

1976). This presumption arises from the fact that it is common knowledge

that such a use is likely to cause death and therefore, entitles a jury to infer

that the intent of a person using such a weapon in such a manner was to kill.

Commonwealth v. Kluska, 3 A.2d 398, 402 (Pa. 1939). As a presumption

of fact, it permits a prima facie inference. O’Searo, supra. Nonetheless, as

the Majority correctly recognizes, 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. Majority Opinion at 11,

citing Kluska, 3 A.2d at 402. The trial court committed error by incorrectly

concluding that, if a deadly weapon was not used against a vital part of a

victim’s body, no specific intent to kill for attempted murder may be inferred.

The trial court failed to recognize that the intent to kill from use of a deadly

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weapon upon a vital part of a victim’s body is merely a factual presumption

that does not preclude proving specific intent otherwise. Moreover, the trial

court had an obligation to examine the entire prima facie evidence offered by

the Commonwealth before determining whether a prima facie case had been

established for attempted murder.

      The Majority faults the Commonwealth for only addressing the actus

reus of attempted murder and not the mens rea, or specific intent, which is

the issue in this case.     The Majority states that the Commonwealth only

describes its proof of the actus reus of attempted murder, and then improperly

and summarily concludes, absent invocation of a relevant presumption, that

the mens rea naturally flows from proof of the former. Majority Opinion at 7.

Respectfully, I disagree.

      In its brief, the Commonwealth points to prima facie evidence wherein

Appellee went to his vehicle, retrieved a pistol from the glove box, put a clip

in the pistol, cocked it and then pointed it at Marsicano. Commonwealth’s

Brief at 16. The Commonwealth notes Appellee then fired three shots at the

victim while he was attempting to run away, striking him in both legs. Id.

From this, the Commonwealth argues that the factfinder could reasonably find

that Appellee took a substantial step toward the intentional killing of

Marsicano. Id. While it is true, as the Majority notes, that the juxtaposition

of a “substantial step” and “intentional killing” in the text of the

Commonwealth’s brief suggests some confusion, it seems clear from the




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Commonwealth’s brief that it is arguing its prima facie evidence was sufficient

to satisfy both the mens rea and actus reus of attempted murder.

      In the absence of a presumption, it is necessary to discuss substantial

step evidence as that may bear upon proof of a specific intent to kill. An act

is a substantial step if it is a major step towards the commission of a crime

and strongly corroborates a jury’s belief that a person, at the time they did

the act, had a firm intent to commit that crime.       See Geathers, supra;

Pennsylvania Suggested Standard Criminal Jury Instructions § 12.901a.1.

Therefore, to connect the specific intent and a substantial step in the crime of

attempted murder, by necessity, there must be a showing as to how the

substantial step relates to specific intent.   See Geathers, supra (specific

intent to kill proven where defendant and victim had a verbal altercation, the

situation calmed, defendant left the scene and returned with a gun, defendant

shot at victim but missed, victim ran and defendant shot two more times,

victim ran down the street and defendant shot again striking left side of

victim’s head). I, therefore, would not fault the Commonwealth for summarily

discussing all of its prima facie evidence to establish the required specific

intent to kill. As explained in greater detail, supra, the prima facie evidence

offered by the Commonwealth in fact was much more than that briefly

described above from its brief.

      On the merits of establishing a prima facie case of specific intent, the

Majority concludes that it is not reasonable to infer that the Commonwealth

produced evidence of a specific intent to kill for three reasons.     First, the

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victim, Marsicano, instigated a confrontation with Appellee over his ex-

girlfriend, Eberhart. Second, there was a complete lack of any verbal

expression of intent to kill by Appellee despite the scuffle that occurred before

the shooting. Third, the near impossibility of Appellee missing any area or

vital portion of the victim’s body from the range at which he fired, but for an

intent to scare or harm, fell short of a specific intent to kill. Majority Opinion

at 16.

         In my opinion, the Majority errs in its analysis both by weighing the

prima facie evidence and by repeatedly interpreting this evidence in a light

more favorable to Appellee than, as required, to the Commonwealth.

         As for its first reason for not finding specific intent to kill, the Majority

labels this event “an unprovoked instigation [by the victim] of a confrontation

with [Appellee]” to argue against specific intent. Majority Opinion, at 16. The

Majority blames the victim for causing the fight—and by so doing, lays the

foundation for suggesting that the victim brought the shooting on himself. It

is simply wrong, however, for the Majority to take this position, given the

principle that we must view the evidence in the light most favorable to the

Commonwealth. While a jury might conclude that the victim instigated the

fight, we are required at this stage of the proceeding to conclude that Appellee

instigated the fight by storming outside Eberhart’s residence to confront the

victim. The evidence could solidly support this inference. The assertion that

the victim instigated the confrontation falls flat when the evidence is construed

in a light most favorable to the Commonwealth.              Blaming the victim for

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starting the fight is tantamount to interpreting and weighing the evidence in

a light most favorable to Appellee.

      As for its second reason for not finding specific intent to kill, referencing

Commonwealth v. Cross, 331 A.2d 813 (Pa. Super. 1974), the Majority

faults the Commonwealth for not proffering any evidence that Appellee

verbally indicated, directly or indirectly, his intent to kill Marsicano. In Cross,

a bullet penetrated the outer panel of a car door at a height near the stomach

of the victim. The evidence demonstrated a long-standing feud between the

defendant and the victim’s brother. Immediately prior to shooting, the

defendant yelled to the victim, “[t]his is for your brother.”           While the

verbalization in Cross may well have supported a specific intent to kill, this

Court in no way suggested that an express verbal threat was a prerequisite to

establishing a specific intent to kill. The verbalization was merely part of the

evidence offered to prove specific intent in that case. The Majority’s criticism

that the Commonwealth did not offer any other circumstantial evidence to

prove a specific intent to kill is simply not in accord with the prima facie

evidence offered by the Commonwealth when viewed in a light most favorable

to the Commonwealth.

      As for its last reason, the Majority posits that specific intent to kill is

absent in this case, because “the near impossibility of Appellee missing any

area or 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 a specific intent to kill.” Once

again, the Majority deprives the Commonwealth of its evidence viewed in the

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best light.    A jury must decide whether intent to kill is proven beyond a

reasonable doubt. This Court does not have that prerogative when reviewing

whether a prima facie case has been established.        The evidence produced

before the trial court suggests that the events here were violent, highly

emotional and rapidly unfolding. The victim was attempting to flee at the time

the shots were fired, arguably while Appellee did not have complete control

over his gun having fired it immediately after the victim grabbed his arms

before attempting to flee.       A jury could conclude that under these fraught

circumstances, the victim escaped death because of Appellee’s poor aim at

the time, and not because of a lack of intent to kill the victim, especially under

circumstances where the victim was taunting Appellee to shoot him.

       Nor do I believe the Majority considers the shooting evidence in a light

most favorable to the Commonwealth by viewing the first shot into the ground

as merely intending to scare the victim. Here, the evidence can be viewed far

differently. Appellee fired a second and a third shot at close range.3 Both

struck the victim, thereby evidencing an intent not to scare, but to harm. If

it was Appellee’s initial intention just to scare, his subsequent shots certainly

go far to dispelling that notion, as they were aimed at and hit the victim’s
____________________________________________


3 The Majority quotes the victim’s testimony indicating that Appellant shot at
him from at most two and a half to three feet away. Eberhart testified,
however, that the first shot was from five feet away. Id. at 33. The Majority
should have resolved this conflict by finding that the first shot was five feet
away, for this version of events was most helpful to the Commonwealth. The
greater the distance between Appellee and the victim, the greater the
likelihood that Appellee intended to kill him but simply aimed poorly.


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body. It is impermissible to infer under these facts that Appellee only wanted

to cause fright. A gun is designed to kill. See Hall, supra. Appellee aimed

his gun at the victim’s body. The question as to whether the discharge of

Appellee’s gun evidenced a specific intent to kill is a question for the jury, not

one for the trial court or this Court upon review of the Commonwealth prima

facie evidence.

      For these reasons, I respectfully dissent.     I would reverse the order

dismissing the charge of attempted murder and remand to the trial court for

further proceedings.




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