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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEANDRE RASHAWN TATE                       :
                                               :
                       Appellant               :   No. 1413 WDA 2018

         Appeal from the Judgment of Sentence Entered August 6, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0001050-2017


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED OCTOBER 7, 2019

        Deandre Rashawn Tate appeals from the judgment of sentence entered

in the Court of Common Pleas of Erie County. Upon review, we affirm.

        On January 26, 2017, Tate was involved in a high-speed car chase with

law enforcement officials that ended in gunfire on the grounds of the

Pennsylvania Soldiers’ and Sailors’ Home in Erie. N.T. Jury Trial, 6/18/18, at

55, 61-62. At trial, law enforcement officers testified that they saw Tate aim

and discharge his firearm in their direction. Id. at 72, 101. Two additional

eyewitnesses testified that they also observed Tate aim his firearm in the

officers’ direction. Id. at 141, 171. During his testimony, Tate admitted that

he discharged his firearm, but denied that he was aiming in the officers’

direction. N.T. Jury Trial, 6/20/18, at 76. Specifically, Tate testified that he

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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discharged his firearm into the air with the hope that the officers would shoot

him, intending to commit “suicide-by-cop.” Id.

        On June 21, 2018, a jury convicted Tate of assault of a law enforcement

officer,1 attempted homicide of a law enforcement officer,2 possession of a

weapon,3 firearms not to be carried without a license,4 recklessly endangering

another person (“REAP”),5 and fleeing or attempting to elude a law

enforcement officer.6 Tate was sentenced on August 6, 2018, to an aggregate

term of 25-50 years’ imprisonment, including a mandatory 20-year sentence

under 42 Pa.C.S.A. § 9719.1(a) (mandatory sentence for offenses committed

against law enforcement officer). Tate timely filed post-sentence motions on

August 16, 2018. On September 14, 2018, the trial court denied Tate’s post-

sentence motions, and on October 1, 2018, Tate filed his timely notice of

appeal. On October 9, 2018, the trial court ordered Tate to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal; Tate timely

complied on October 30, 2018.

        Tate presents the following question for this Court’s review:

____________________________________________


1   18 Pa.C.S.A. § 2702.1.

2   18 Pa.C.S.A. § 901.

3   18 Pa.C.S.A. § 907.

4   18 Pa.C.S.A. § 6106.

5   18 Pa.C.S.A. § 2705.

6   18 Pa.C.S.A. § 3733.

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              Whether or not the trial court abused its discretion in
              denying [Tate’s] post-sentenc[e] motion/motion in
              arrest of judgment and for a new trial since the
              verdicts of assault on a police officer (2 counts) and
              attempted homicide of a law enforcement officer (2
              counts) were so contrary to the evidence as to shock
              one’s sense of justice and a new trial should be
              granted in the interest of justice?

Appellant’s Brief at 5.

       At first glance, Tate has framed the issue for review solely as a challenge

to the weight of the evidence; however, upon careful review of the record and

appellate brief, it is clear that he is also challenging the sufficiency of the

evidence. We will first address his weight of the evidence claim.

       Tate argues that the verdict was against the weight of the evidence

because the testimony and physical evidence presented at trial failed to

establish “that the shots were actually fired at [the officers] or in their

direction.” Appellant’s Brief, at 25. Specifically, Tate contends that Officer

John Wilson and Officer Joshua Allison did not actually observe Tate discharge

his firearm in their direction, but rather, they observed illuminating “muzzle

flashes,”7 which “[c]learly in a pitch-black area in the early morning hours of

the a.m. [are] going to be observed from any weapon being discharged.” Id.

Tate also argues that the “fact that the building and/or vehicles [behind the

officers] were not hit by gunfire is evidence that [Tate] was not shooting in

the direction of the police and thus did not have the specific intent to cause
____________________________________________


7A muzzle flash is a flame, resulting from the impact of gases on the outside
atmosphere, that emanates from the muzzle of a gun when a projectile is
expelled      from        its       barrel.           https://www.merriam-
webster.com/dictionary/muzzle%20blast (last visited 9/25/19).

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bodily injury to either [o]fficer or the specific intent to kill either [o]fficer.” Id.

at 27.

         Tate’s challenge to the weight of the evidence garners him no relief.

When a challenge to the weight of the evidence is predicated on the credibility

of trial testimony, as is at issue here, this Court’s review of the trial court’s

decision is extremely limited. Commonwealth v. Gibbs, 981 A.2d 274, 282

(Pa. Super. 2009). “On issues of credibility and weight of the evidence, an

appellate court defers to the findings of the trial court, who has had the

opportunity to observe the proceedings and demeanor of the witnesses.”

Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002). “A

new trial should not be granted because of a mere conflict in the testimony or

because the judge on the same facts would have arrived at a different

conclusion.”     Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).

Rather, “the role of the trial judge is to determine that ‘notwithstanding all the

facts, certain facts are so clearly of greater weight that to ignore them or to

give them equal weight with all the facts is to deny justice.’” Id. (citation and

quotation omitted).

         The trial court opined on the credibility of the witnesses and the weight

of the evidence as follows:

               At trial, there was evidence that after a high[-]speed
               car chase onto the grounds of the Soldiers[’] and
               Sailors[’] Home, [Tate] fired his gun several times.
               The officers testified they saw the flashes from
               [Tate’s] firearm fire in their direction, and they also
               observed [Tate] move the firearm from one officer to


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             the other. Other witnesses testified that they saw the
             firearm held by [Tate] pointed at and/or firing directly
             at the officers.

             [Tate] admitted that he shot the firearm but denied
             he was shooting at the officers. His defense was that
             he was not trying to harm the officers, but rather he
             was trying to commit “Suicide by Cop.”

             The issue of credibility of witnesses at trial is for the
             jury.   The [c]ourt finds that the jury was not
             unreasonable to conclude, based on evidence at trial,
             that [Tate] was intentionally shooting at the officers.
             Therefore, the jury’s verdict was supported by the
             evidence, and does not shock one’s sense of justice.

Trial Court Opinion, 9/14/18, at 1-2. See N.T. Jury Trial, 6/18/18, at 72, 101,

141, 171 (officers’ and eyewitnesses’ testimony indicating Tate aimed firearm

in officers’ direction).

      After careful review of the certified record, we ascertain no abuse of

discretion by the trial court. It is clear that the jury believed the officers’ and

eyewitnesses’ testimony regarding whether Tate was pointing his gun at the

officers, as opposed to Tate’s recitation of the events. Credibility is an issue

for the jury to decide, not us. See Commonwealth v. DeJesus, 860 A.2d

102, 107 (Pa. 2004) (“This Court cannot substitute its judgment for that of

the [finder of fact] on issues of credibility.”) (citations omitted). With regard

to the lack of physical evidence (i.e., no bullets found in building or vehicle

behind officers), we find such to merely be inconclusive and it does not make

the evidence so unreliable as “to make any verdict based thereon pure

conjecture.” Gibbs, 981 A.2d at 282. Thus, we find no merit to this claim.




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      We turn now to Tate’s claim challenging the sufficiency of the evidence.

Our review is guided by the following legal principles:

            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 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. Davison, 177 A.3d 955, 957 (Pa. Super. 2018) (citing

Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)).

      Tate challenges the sufficiency of the evidence to sustain his convictions

for assault and attempted homicide of a law enforcement officer.           Tate

supports his claim by arguing that the Commonwealth failed to prove beyond

a reasonable doubt that he possessed the requisite specific intent to inflict

bodily injury and specific intent to kill. See Appellant’s Brief at 20-24; Post-




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Sentence Motion, 8/16/18, at ¶ 3; Pa.R.A.P. 1925(b) Statement, 10/30/18,

at ¶ 6.

      Assault of a law enforcement officer is defined, in pertinent part, as:

            A person commits a felony of the first degree who
            attempts to cause or intentionally or knowingly causes
            bodily injury to a law enforcement officer, while in the
            performance of duty and with knowledge that the
            victim is a law enforcement officer, by discharging a
            firearm.

18 Pa.C.S.A. § 2702.1 (emphasis added). Criminal homicide is defined as:

            A person is guilty of criminal homicide if he
            intentionally, knowingly, recklessly or negligently
            causes the death of another human being.”

18 Pa.C.S.A. § 2501(a) (emphasis added).

      Turning to his conviction for assault, Tate notes that “[n]either Officer

Allison nor Officer Wilson suffered any bodily injury as a result of [his]

discharging a firearm, [and, therefore,] the Commonwealth had to prove

beyond a reasonable doubt that [he] had specific intent to cause bodily

injury[.]” Appellant’s Brief, at 23.

      Our courts have explained that although section 2702.1 does not define

criminal attempt, section 901(a) of the Crimes Code indicates that “[a] person

commits an attempt when, with 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.A. § 901(a).      Thus, “criminal attempt under [s]ection 2702.1

requires a showing of some act, albeit not one actually causing bodily injury,

accompanied by an intent to inflict bodily injury upon a law enforcement officer


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by discharging a firearm.” Commonwealth v. Landis, 48 A.3d 432, 446 (Pa.

Super. 2012) (emphasis added). Moreover, whether a defendant’s actions

demonstrate an intent to cause bodily injury must be determined on a case-

by-case basis, taking into account the totality of the circumstances.     See

Commonwealth v. Dailey, 828 A.2d 356, 360 (Pa. Super. 2003). One factor

to consider when determining if a defendant acted with the intent to cause

bodily injury includes whether the defendant possessed and utilized a weapon.

See Commonwealth v. Alexander, 383 A.2d 887, 889 (Pa. 1978)

(considering whether defendant had weapon or other implement to aid his

attack in aggravated assault case).

      With regard to Tate’s conviction for attempted criminal homicide, we

note that 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. See Commonwealth v.

Predmore, 199 A.3d 925, 939 (Pa. Super. 2018) (“[T]o prove that Appellant

had the mens rea for attempted murder, the Commonwealth had to establish

that [appellant] had the conscious objective, that is, the goal, of killing the

victim.”).   Further, specific intent to kill may be established solely from

circumstantial evidence. Commonwealth v. Holbrook, 629 A.2d 154 (Pa.

1993).

      Viewing the evidence in the light most favorable to the Commonwealth,

as verdict winner, together with all reasonable inferences therefrom, we

conclude that the Commonwealth presented sufficient evidence for the jury to

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find that Tate possessed both the specific intent to inflict bodily injury and the

intent to kill the subject law enforcement officers.     A review of the record

reveals that Tate pointed his firearm at Officers Allison and Wilson, and

attempted to shoot both officers by repeatedly firing in their direction. Officer

Allison testified that he observed Tate pointing his firearm directly at his

partner, Officer Wilson, when Tate fired his first shot. N.T. Jury Trial, 6/19/18,

at 72-73. Officer Allison further testified that he then drew his service pistol

and began to engage Tate, at which time Tate shifted his body, aimed his

firearm at Officer Allison, and shot again. Id. at 75. Further, Dennis Peters,

a night security supervisor at Soldiers’ and Sailors’ Home, and Clifford

Vantassel, a facility maintenance manager, each testified that they observed

Tate aim his firearm in the officers’ direction. Id. at 141, 171.

      Thus, our review of the record demonstrates that there was sufficient

evidence to establish that Tate had both the intent to inflict bodily injury, as

well as the intent to kill. Consequently, Tate’s claim that the evidence was

insufficient also fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2019

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