J-S23021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CARNELL SCOTT,

                            Appellant                  No. 1264 EDA 2014


       Appeal from the Judgment of Sentence Entered January 14, 2014
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013278-2012


BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                                 FILED MAY 29, 2015

       Appellant, Carnell Scott, appeals nunc pro tunc from the judgment of

sentence entered on January 14, 2014, in the Philadelphia County Court of

Common Pleas. We affirm.

       The relevant facts of this case were set forth in the trial court’s opinion

as follows:

             On August 26, 2012, at about 2:45 a.m., Philadelphia
       Police Officer Joseph Weihe and his partner were on routine
       patrol when they received a radio call directing [them] to go to
       the 4700 block of Griscomb Street to investigate reports of a
       shooting. The officer[s] arrived at that location minutes after
       receiving the call and Officer Weihe observed people screaming,
       a male, later identified as Khary Clark, in police custody, and a
       woman lying on the pavement in front of 4711 Griscomb Street.
       The woman, later identified Kia Boyd [(“Ms. Boyd”)], the victim
       herein, was bleeding and had a faint pulse. Officer Weihe and his
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S23021-15


     partner picked up [Ms. Boyd], placed her in their squad car, and
     drove her to Temple Hospital where she was pronounced dead.

           An autopsy conducted on the body of the victim revealed
     that [Ms. Boyd] suffered gunshot wounds to her neck and
     thorax. The cause of death was multiple gunshot wounds and the
     manner of death was deemed to be homicide. During the
     autopsy, two .22 caliber projectiles were removed from [Ms.
     Boyd’s] body. They, however, were too damaged to determine if
     they had been fired from the same firearm.

           The instant matter had its genesis in a dispute that began
     that night between [Appellant] and Khary Clark. Earlier that
     night, [Appellant], [Ms. Boyd], who was Clark’s cousin, and Clark
     were part of a group that decided to go to a bar located on
     Torresdale Avenue near Margaret Street. After the bar closed,
     the group stayed outside the bar talking before they decided to
     return to Griscomb Street. While outside the bar, [A]ppellant
     was observed pacing back and forth and going behind a wall
     where he placed an object believed to be a gun.

            Once back at Griscomb Street [Appellant] and Clark began
     arguing and during the argument [Appellant] was chastising
     Clark and some others that were present for failing to shoot at a
     car that had driven slowly down the block. At some point Clark
     began repeatedly asking [Appellant] to give him his gun back,
     which [Appellant] apparently had retrieved after Clark had hid it
     earlier that night. Clark also unsuccessfully tried to mollify
     [Appellant] who continued to yell and threatened to kill Clark as
     he pointed a gun at Clark. The men also “tussled” a couple of
     times.

          After [Appellant] pointed the gun at Clark, [Ms. Boyd]
     jumped in the middle of the two men and asked [Appellant] to
     give Clark his gun back. [Appellant] eventually did so after
     [Appellant] spoke to his brother, who[m] Clark had called to
     complain about [Appellant].

          After he returned the gun, [Appellant] stated that he still
     wanted to fight Clark and also began berating Nianda Rackley,
     the mother of two of Clark’s children, who had returned from the
     bar with the others and was attempting to get Clark to leave.
     [Appellant] said that he was going to get his mother to beat up
     Ms. Rackley and, in response, she said something derogatory to
     [Appellant] about his mother. After she did so, [Appellant] pulled
     out a small handgun and began firing it at Ms. Rackley. Clark

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      pushed Rackley out of the way and began shooting at
      [Appellant]. When the shooting stopped, [Appellant] was
      nowhere to be seen and [Ms. Boyd] was lying on the pavement.
      The police arrived shortly thereafter and took Clark, who had not
      fled, into custody. Clark, who pleaded guilty to various charges,
      including third-degree murder, gave police a statement. Clark’s
      gun was found by police in a van belonging to Ms. Rackley,
      which was parked on Griscomb Street when the shooting
      occurred.

            Following the incident, police obtained an arrest warrant
      for [Appellant]. It was executed on August 30, 2012. While
      police were serving the warrant, [Appellant] attempted to flee.

Trial Court Opinion, 7/23/14, at 2-4 (unnumbered).

      Appellant was arrested and charged, inter alia, with an open charge of

murder, recklessly endangering another person (“REAP”), carrying a firearm

without a license, and carrying a firearm on a public street in Philadelphia.

Following a jury trial, Appellant was found guilty of third-degree murder,

REAP, and the firearm offenses.           On January 14, 2014, the trial court

sentenced Appellant to an aggregate term of twenty-three and one-half to

forty-seven years of incarceration followed by seven years of probation.

Appellant filed a post-sentence motion, which was denied on February 7,

2014, but did not file a direct appeal.

      On March 24, 2014, Appellant filed a timely petition pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, in which he

sought the reinstatement of his direct appeal rights. On April 21, 2014, the

PCRA court granted Appellant the right to file a direct appeal nunc pro tunc.

Thereafter, Appellant filed a timely notice of appeal and complied with the




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trial court’s order to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

         On appeal, Appellant presents the following issue for this Court’s

consideration:

         Whether Appellant is entitled to an arrest of judgment as to the
         charge of Third-Degree Murder, because the evidence presented
         at trial was insufficient for a finder of fact to render a guilty
         verdict beyond a reasonable doubt.

Appellant’s     Brief   at   6.   Specifically,   Appellant   contends   that   the

Commonwealth failed to prove that he fired the fatal shots. Appellant’s Brief

at 11.

         When examining a challenge to the sufficiency of the evidence:

         The standard we apply . . . 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
         [trier] 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. Orr, 38 A.3d 868, 873 (Pa. Super. 2011) (quoting

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011)). This

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standard is similarly applicable in cases where the evidence is circumstantial

rather than direct, “so long as the combination of the evidence links the

accused to the crime beyond a reasonable doubt.”         Commonwealth v.

Santiago, 980 A.2d 659, 662 (Pa. Super. 2009) (quoting Commonwealth

v. Johnson, 818 A.2d 514, 516 (Pa. Super. 2003)).

      The crime of murder is set forth in the Crimes Code as follows:

      § 2502. Murder

      (a) Murder of the first degree.--A criminal homicide
      constitutes murder of the first degree when it is committed by an
      intentional killing.

      (b) Murder of the second degree.--A criminal homicide
      constitutes murder of the second degree when it is committed
      while defendant was engaged as a principal or an accomplice in
      the perpetration of a felony.

      (c) Murder of the third degree.--All other kinds of murder
      shall be murder of the third degree. Murder of the third degree is
      a felony of the first degree.

18 Pa.C.S. § 2502(a)-(c).

      Accordingly, “third-degree murder occurs when a person commits a

killing which is neither intentional nor committed during the perpetration of a

felony, but contains the requisite malice.” Commonwealth v. Thompson,

106 A.3d 742, 757 (Pa. Super. 2014) (quoting Commonwealth v. Truong,

36 A.3d 592, 597 (Pa. Super. 2012) (en banc)). Malice is defined as:

      wickedness of disposition, hardness of heart, cruelty,
      recklessness of consequences, and a mind regardless of social
      duty, although a particular person may not be intended to be
      injured[.] Malice may be found where the [Appellant] consciously
      disregarded an unjustified and extremely high risk that his



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     actions might cause serious bodily injury. Malice may be inferred
     by considering the totality of the circumstances.

Id. (quoting Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super.

2011)).     “[F]leeing the scene may be considered in determining if an

individual acted with malice.”      Dunphy, 20 A.3d at 1220 n.3 (citations

omitted).   “Malice may be inferred from the use of a deadly weapon on a

vital part of the victim’s body.”    Commonwealth v. Ventura, 975 A.2d

1128, 1142 (Pa. Super. 2009) (citation omitted).

     Additionally, the Crimes Code explains the culpability of an actor where

the victim is other than whom was intended:

     § 303. Causal relationship between conduct and result

     (a) General rule.--Conduct is the cause of a result when:

             (1) it is an antecedent but for which the result in
             question would not have occurred; and

             (2) the relationship between the conduct and result
             satisfies any additional causal requirements imposed
             by this title or by the law defining the offense.

     (b) 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 remote or accidental in its occurrence to have a

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            bearing on the actor’s liability or on the gravity of his
            offense.

18 Pa.C.S. § 303(a) and (b) (emphasis added).

     As noted, Appellant argues that because the Commonwealth did not

prove that he fired the fatal bullets, his conviction cannot stand.         We

disagree.

     In Commonwealth v. Gaynor, 648 A.2d 295 (Pa. 1994), our

Supreme Court was faced with a similar fact pattern.          In that case, the

Supreme Court was asked to consider whether Michael Gaynor, who

exchanged gunfire with an individual named Ike Johnson in a store that was

open to the public, could be convicted of first-degree murder for the killing

of an innocent bystander. Id. at 297. It was established at trial that the

bystander was a child who was not part of the gun battle and that the child

died as a result of bullets fired from Johnson’s gun.         Id. at 296.   The

Supreme Court discussed 18 Pa.C.S. § 303 concerning transferred intent,

and the Court concluded that Gaynor’s conviction of first-degree murder was

proper. Id. at 299. The Supreme Court reasoned as follows:

     For purposes of establishing sufficiency of the evidence, it is
     obvious that Gaynor intended to kill Ike Johnson. The actual
     result, of course, was that another person was killed instead of
     the intended victim. Section 303(b) establishes liability when
     intent must be proved if the Commonwealth establishes (a) that
     the only difference between the intended result and the actual
     result is that a different person was harmed; or (b) that the
     actual result is of the same type as was intended and is not too
     remote to justify liability.




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Id. at 298. The Court continued: “We conclude under [18 Pa.C.S.] § 303(b)

that the actual result can be attributed to Gaynor’s intent to kill Johnson

even though the latter’s bullets murdered and wounded the victims.” Id. at

299.

       Appellant claims that because Gaynor was a first-degree murder case,

it is inapposite as “there is no established specific intent to kill that can be

transferred to the victim.”    Appellant’s Brief at 12.   We disagree because

specific intent to kill is not required, only malice.

       While Appellant was charged with an open count of murder, the jury

concluded that he was guilty of third-degree murder, and therefore, we are

not concerned with specific intent to kill, as that is not an element of third-

degree murder.     18 Pa.C.S. § 2502(c).       Nevertheless, Appellant’s actions

were unquestionably directed toward Clark with, at the very least, a

conscious disregard for the high risk of causing seriously bodily injury. This

constitutes malice. Thompson, 106 A.3d at 757. This malicious intent was

transferred to Ms. Boyd. Under a transferred intent theory, a defendant may

be found guilty of murder even though he did not fire the fatal shot where

the Commonwealth proves that the only difference between the intended

result and the actual result is the person harmed. Gaynor, 648 A.2d at 298

(1993); 18 Pa.C.S. § 303(b).           Additionally, transferred intent permits

inferences of malice and specific intent to flow to an unintended victim.

Commonwealth v. Jones, 912 A.2d 268, 280 (Pa. 2006).


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      As set forth above, Appellant chose to engage in a gunfight on a public

street with Clark, and during their exchange of gunfire, Ms. Boyd was killed.

While there was no forensic evidence that directly linked the bullets that

killed Ms. Boyd to the gun Appellant fired, such evidence is not required.

Gaynor, 648 A.2d at 298 (1993); 18 Pa.C.S. § 303(b).           After considering

the totality of the circumstances, while Appellant may not have intended to

kill Ms. Boyd, he acted with malice and intentionally fired his weapon at

Clark. Appellant’s actions, his recklessness of consequences and conscious

disregard for the extremely high risk that his actions might cause serious

bodily injury, and the fact that the gunfight did result in Ms. Boyd’s death, is

sufficient to sustain Appellant’s conviction for the crime of third-degree

murder.    Thompson, 106 A.3d at 757; 18 Pa.C.S. § 303(b).               Stated

differently, had Clark been the one who was killed during the gunfight, the

evidence would have been sufficient to prove third-degree murder, and thus,

through transferred intent, that same evidence is sufficient to establish

third-degree murder with respect to the killing of Ms. Boyd.

      Because we conclude that the evidence was sufficient to prove that

Appellant is guilty of third-degree murder, he is entitled to no relief.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/2015




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