J-S51020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MONTEZ BLACKMAN                            :
                                               :
                       Appellant               :   No. 849 EDA 2017

            Appeal from the Judgment of Sentence February 3, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008744-2015


BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                            FILED OCTOBER 22, 2018

        Appellant Montez Blackman appeals from the judgment of sentence

following his convictions for aggravated assault, firearms not to be carried

without a license, and carrying firearms in public in Philadelphia.1 Appellant

claims that there was insufficient evidence supporting his aggravated assault

conviction.2 We affirm in part, vacate in part, and remand for the correction

of a clerical error in the sentencing order.

        The trial court set forth the facts of this case as follows:

        At trial, the Commonwealth first presented the testimony of Daisy
        Batties. Batties testified that, on the evening of July 12, 2015,
        she was inside her apartment located at 2620 Norris Court in
        Philadelphia along with her two young children, her boyfriend/her
        children’s father, Mark Nkwocha, and Appellant. Batties’ children
        were upstairs sleeping in their bedroom, and Mr. Nkwocha was
____________________________________________


1   18 Pa.C.S. §§ 2702(a)(1), 6106(a)(1), and 6108, respectively.

2   Appellant is not appealing his violations to the Uniform Firearm Act (VUFA).
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       watching television in her bedroom; Appellant was sitting on her
       couch while she was cleaning up the downstairs. Batties testified
       that she knew Appellant from the neighborhood, and more
       specifically, as her supplier of narcotics (marijuana and
       Percocets), which she regularly purchased from him. On this
       particular day, Appellant had gotten kicked out of his girlfriend’s
       house, so he asked Batties if he could spend the night at her
       apartment. Batties obliged “[b]ecause this is [Appellant] I’m
       talking about. Everybody is scared of him. I’m scared of him.”

       Batties testified that while he was sitting on her couch, Appellant
       continued to rant and rave about how “he’s going to take over the
       projects, how he runs the projects, how he [is] the king of the
       projects [and] everyone [is] beneath him.” Appellant “was just
       ongoing about him being on top.” Batties knew, based on her own
       dealings with Appellant, that he was referring to his drug-dealing
       enterprise. As she put it quite plainly, “He’s a drug dealer. He’s
       -- he[’s] got goons, a squad, his team.” Batties also testified that
       while Appellant was sitting on her couch, he was brandishing a
       handgun, the butt of which she saw in plain view protruding from
       his waistband.

       Batties testified that, at approximately 11:00 p.m., she was
       standing two feet from her side window when gunshots rang out,
       just outside her window, and into her home. When she heard the
       shots and saw the bright flashes so close, she immediately
       dropped down to the floor. Appellant then immediately fired
       three[3] shots back out the same window. As she described it,
       “After the shots [were] fired through the window, there were shots
       going out the window, like, boom, boom, boom.” Batties testified
       that she was only five or six feet away from Appellant when he
       returned fire.

       Following the shootout, Batties got up from the floor, hysterically
       crying. Appellant was gone and the front door was open. Her
       boyfriend, Mr. Nkwocha, came running down the steps, yelling
       “what is going on?” He tried to calm her down, and confirmed
       that their children, fortunately, were unharmed. When police
____________________________________________


3 Ms. Batties testified that she first heard three shots coming from outside her
apartment towards the inside. N.T., 11/16/16, at 35. She continued that she
heard around seven shots from the inside to the outside of her apartment.
Id. at 35-36. She explained that while she was not counting, it was
“repeatedly” and “had been more than five.” Id. at 36.

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     arrived shortly thereafter, Batties reported that “somebody shot
     through my window.” Candidly, she testified that she did not
     immediately report Appellant’s return fire because she was
     scared.

                                    ***

       [A].     The first time I’m, like, still hysterical at that time.
       So they asked, like, well, what was going on? And they’re
       checking all around the house and everything. I’m like, well,
       somebody shot through my window. I’m like, I never had
       this. Of all the years of me having [public housing], I never
       had that. No type of animosity with anybody. I’m a
       peaceful person. So that’s what I initially told them. But
       when the cop made me feel like comfortable whereas
       though, like, I’m here to help you ma’am. You be honest
       with me, I can help you, so I’m like, well -- because I was
       scared. I’m like, I don’t know what’s going to happen. I
       see this everyday. I don’t know what’s going to happen.
       I’m like, well, okay, I know who did it, you know.
       Like, I know who did it, so I know who was in my
       house too and I know who did it, and I pointed the
       person -- I pointed the person out.

     Batties testified that Appellant then nonchalantly walked by her
     apartment within minutes of the incident, and she identified him
     to police. Appellant was immediately apprehended and she
     positively identified him a second time. Police then transported
     her and Mr. Nkwocha to the station for statements.

     Philadelphia Housing Authority Police Officer Benjamin T.
     Romanowicz testified that, on July 12, 2015[,] at approximately
     11:00 p.m., he was on routine patrol in the vicinity of 25th and
     Diamond Streets when he received a radio call for gunshots. He
     and his partner, Officer (now Sergeant) Matthew Richardson,
     drove to 26th and Norris Streets, where they encountered a crowd
     of people; after obtaining further information, they proceeded to
     Batties’ residence. Officer Romanowicz testified that he observed
     five bullet holes in the side window of the residence. He was then
     met at the front door by Batties and Mr. Nkwocha, both of whom
     appeared panicked. They informed [Officer Romanowicz] that
     someone shot into their home. Officer Romanowicz did not
     observe ballistic damage to the walls inside the apartment. In
     plain view on the couch, he found a handgun magazine. Mr.
     Nkwocha immediately states, “That’s not mine.” The couple then


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        provided more information, including Appellant’s involvement in
        the shootout. Within a few minutes, Appellant appeared outside
        the residence, and was positively identified by Batties.[fn5]
           [fn5]Officer Romanowicz also found one (1) nine-millimeter
           fired cartridge casing on the kitchen floor approximately 12
           feet from the side window.

        . . . Mr. Nkwocha testified that, on July 12, 2015[,] at
        approximately 10:40 p.m., he was upstairs in Batties’ residence,
        tucking their children into bed. Before going upstairs, he saw
        Appellant -- who was “selling weed” to Batties -- sitting on the
        couch with the butt of [a] handgun protruding from his waistband.
        At approximately 11:00 p.m., he heard gunshots ring out. He ran
        downstairs and saw Batties on the floor and Appellant standing
        next to the couch, five or six feet from the window, with a gun in
        his hand. Mr. Nkwocha ran over to Batties and Appellant tucked
        the gun away and left the premises.

        Mr. Nkwocha also testified that, after speaking with the
        responding officers, he saw Appellant walk by the residence with
        a large group of males, at which time he identified Appellant,
        stating, “The guy [is] right there.” Additionally, Mr. Nkwocha
        testified that, just prior to being transported to the station for a
        detailed statement, one of Appellant’s friends, “Shiz[,”4] pointed
        at Mr. Nkwocha with his fingers in the shape of a gun -- indicating
        to Mr. Nkwocha, “don’t snitch or [you’re] gonna get shot.”

                                          ***

        Philadelphia Police Detective Terrance Sweeney testified that,
        along with Detective Kevin Williams, he was assigned to
        investigate the subject shooting. Upon arrival at the exterior of
        the premises, Detective Sweeney observed numerous gunshot
        holes through a window.         He and his partner entered the
        residence, where it appeared that the gunshots were consistent
        with having occurred from inside the property. One of the
        responding officers pointed him to a firearms magazine sitting on
        the sofa and to a fired cartridge casing lying on the kitchen floor.
        Detective Sweeney ordered the officers to secure the area (no one
        enter, no one leave), while he obtained a warrant to search the
        premises. Within two hours, he returned with a warrant and
        searched the entire residence. On a table beside the sofa, inside
____________________________________________


4   The name of the individual referenced as “Shiz” is not in the certified record.

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       a black shoebox, he found two .38 caliber fired cartridge casings,
       five live .38 caliber rounds, and a prescription pill bottle bearing
       Appellant’s name, “Blackman, Montez.” Detective Sweeney did
       not find any other evidence, on either floor of the residence.

       Finally, the Commonwealth rested its case with audio recordings
       and transcripts of prison phone calls made by Appellant, in which
       Appellant freely admits to the shooting, and indicates that he fired
       at an individual who was trying to kill him: either “[he] was gonna
       kill me . . . or I was gonna kill him.”[5]

Trial Ct. Op., 8/16/17, at 2-6 (citations and some footnotes omitted, emphasis

in original).


____________________________________________


5  The exhibits admitted at trial are contained in the certified record.
Accordingly, we have the benefit of the transcript of the relevant July 16, 2015
prison phone conversation, which we have included below.

       [Appellant]: Maybe I’ll be blessed or something to come up out
       of this. I don’t know. Everytime [sic] I come home. I do better
       man.

       Woman: Right.

       [Appellant]: Maybe I was gonna get kilt or something.

       Woman: Don’t say that.

       [Appellant]: Nah but for real. Real talk Jamira maybe that boul
       was gonna kill me or something. I don’t know. Nah mean. So
       this just sit me down you know get him out the way. Or I was
       gonna kill him.

Exhibits, 11/16/16, at C-18 (7/16/15) (internal quotation marks omitted).
Further, the exhibits contain other prison phone conversations by Appellant
where he appears to be discussing the day in question as well as the trial.
See id. at C-18 (7/14/15) (“Yea just tell him to see if to try to get him to not
come to court.”); C-18 (7/14/15) (“[T]hey ain’t even give me no preliminary
hearing. . . . they ain’t got no evidence.”); C-18 (7/15/15) (“I was shooting
out his house haha.”).




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       On November 17, 2016, following two days of trial, a jury found

Appellant guilty of the aforementioned offenses. On February 3, 2017, the

trial court sentenced Appellant to ten to twenty years’ incarceration for the

aggravated assault conviction. Appellant received no further penalty for the

VUFA convictions.6 Appellant did not file a post-sentence motion.

       On March 2, 2017, Appellant filed a timely notice of appeal and court-

ordered Pa.R.A.P. 1925(b) statement.             The trial court filed a responsive

Pa.R.A.P. 1925(a) opinion.

       Appellant’s sole question on appeal is: “Was the evidence insufficient to

convict Appellant of Aggravated Assault, when the evidence showed that

Appellant was shooting a firearm from inside a house at no apparent target,

therefore making it impossible to prove that he intended to cause serious

bodily injury?” Appellant’s Brief at 3.

       Appellant argues that for an aggravated assault conviction, there must

be a victim or intended victim.          Id. at 10.   He claims that there was no

evidence presented to support the Commonwealth’s claim that Appellant was

shooting at someone outside the apartment.                 Id. at 11.     Appellant

distinguishes Commonwealth v. Lopez, 654 A.2d 1150 (Pa. Super. 1995),

cited by the trial court, in that there was substantial evidence in Lopez that

the defendant intended to cause harm to a victim even though that victim was

____________________________________________


6 The trial court imposed an additional consecutive sentence of three to six
years’ incarceration for a violation of probation on a previous robbery
conviction.

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not in her residence when the defendant fired into it. Id. at 13 (citing Lopez,

654 A.2d at 1155). Appellant further contends that firing a weapon alone

does not satisfy the mens rea necessary to prove intent to cause serious bodily

injury. Id. at 13.

      Appellant also argues that the prison phone call made by Appellant was

too vague for the jury to determine that he was discussing the shooting at

issue in this appeal. Id. at 15. He claims that although the transcript of this

call was introduced into evidence at trial, there is no context in the call to

determine if Appellant was talking about this specific incident.      Id.    The

Commonwealth counters that Appellant’s argument goes to the weight, rather

than the sufficiency, of the evidence. Commonwealth’s Brief at 14-15.

      We apply the following standard when reviewing a sufficiency claim:

      Because a determination of evidentiary sufficiency presents a
      question of law, our standard of review is de novo and our scope
      of review is plenary. In reviewing the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      [T]he facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Commonwealth v. Palmer, --- A.3d ----, 2018 WL 3121452, *2 (Pa.



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Super.), reargument denied (Pa. 2018) (citation omitted).

      Section 2702 of the Crimes Code provides that a person may be found

guilty of aggravated assault if he “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.”

18 Pa.C.S. § 2702(a)(1).     Section 2301 defines “serious bodily injury” as

“[b]odily injury which creates a substantial risk of death or which causes

serious, permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ.” 18 Pa.C.S. § 2301. Moreover, “[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.” Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006)

(citing 18 Pa.C.S. § 901(a)).

      This Court’s decisions in Lopez and Palmer provide guidance.           In

Lopez, the defendant fired eight bullets at the front door of victim’s property.

Lopez, 654 A.2d at 1152. Unknown to the defendant, the victim was not

present at the time of the shooting. Id. We held that a defendant may be

guilty of aggravated assault where he discharges a weapon into an empty

residence “if he possesses the requisite intent to cause serious bodily injury

or bodily injury via the use of a deadly weapon to another, even though it is

impossible for that person to actually cause such injury.” Id. We reasoned

that the fact that it was impossible for the defendant to harm the victim

because she was not in the residence was of no consequence. Id. at 1155.

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The defendant’s “state of mind, not [the victim]’s location, is the key to

determining whether he committed aggravated assault upon her.” Id. Where

the fact-finder makes a determination that the defendant “believed that [the

victim] was inside her residence, intended to seriously harm her or harm her

with a deadly weapon, and attempted to do so by firing bullets through the

front doors” then a conviction for aggravated assault is warranted. Id.

       More recently, we decided Palmer, in which the defendant was

“captured on surveillance video extending his arm in a position consistent with

firing a gun.” Palmer, 2018 WL 3121452, at *1. At the same time, a vehicle

carrying three persons arrived at an intersection near where the defendant

was aiming, and the driver was shot and injured. Id. Two other vehicles were

also passing by at that time. Id. The police discovered ten fired cartridge

casings from the defendant’s location.           Id.   The Commonwealth charged

defendant, in relevant part, with aggravated assault of the driver and of a

John Doe. Id. The defendant claimed that there was insufficient evidence to

sustain the aggravated assault conviction in regards to the John Doe.7 Id. at

*2. This Court disagreed.

       We explained that although there was no readily identifiable victim at

whom the defendant was shooting, a jury could determine that the defendant

“fired into a crowd of people, and, in turn, possessed the specific intent to

cause serious bodily injury to someone in that crowd.” Id. at *5. “There is
____________________________________________


7 The defendant in Palmer did not contest the sufficiency of the evidence as
to the driver of the vehicle. Palmer, 2018 WL 3121452, at *4.

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no doubt that a readily[]identifiable victim is sufficient to sustain the

convictions in these cases, but we are not of the view that it is a necessary

component.” Id. at *8 (citing Matthew, 909 A.2d at 1254 (applying totality

of the circumstances to determine if actions constituted aggravated assault)).

      That there was no readily identifiable victim at which the defendant was

shooting was not decisive. Id. at *8-9. The evidence established that the

defendant hoped or believed that he hit someone in the crowd. Id. at *9. In

light of the fact that the defendant fired ten shots towards an intersection

occupied by numerous people, a “jury was permitted to attach significance to

the natural and probable outcome of that behavior when assessing intent.”

Id. at *9 (citing Commonwealth v. Fry, 491 A.2d 843, 844–45 (Pa. Super.

1985) (“A fact finder may find that a person intends the natural and probable

consequences of his actions.”)).    Ultimately, we concluded that “[t]he jury

could find under the totality of the circumstances that Appellant fired into the

group of people with intent to inflict serious bodily injury upon someone within

that group.” Id. at *8 (citation omitted).

      Here, the fact that there was no readily identifiable victim is not a

necessary element of Appellant’s conviction. See id. Therefore, we turn to

the totality of the circumstances to determine if Appellant intended to cause

serious bodily injury to another person. See id.; Matthew, 909 A.2d at 1258.

      Ms. Batties testified that she was approximately two feet from the

window when she heard three shots being fired just outside her window and

into her home. N.T., 11/16/16, at 17. She testified that she saw “bright

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lights,” which caused her to drop immediately to the floor. Id. at 18. She

further testified that immediately after she heard gunshots coming in, “there

were shots going out the window.” Id. at 18. She counted from five to seven

shots going from inside of her apartment and out through the window. Id. at

35-36. She specifically stated that she saw Appellant shooting out through

her window.8 Id. at 19.

       Moreover, the transcript of a prison phone conversation was admitted

at trial. In that transcript, Appellant stated, “maybe that boul was gonna kill

me or something. . . . Or I was gonna kill him.” See Exhibit, 11/16/16, at C-

18.

       Accordingly, the evidence admitted at trial and the totality of the

circumstances, considered in the light most favorable to the Commonwealth,

established that Appellant believed there was somebody shooting from the

outside of the apartment and that Appellant shot back with the intent of

causing serious bodily injury to that person. See Palmer 2018 WL 3121452,

at *2; Matthew, 909 A.2d at 1257. The fact that Appellant fired five to seven

shots in response to the shots fired into the residence shows his intent to

cause serious bodily injury. See Palmer, 2018 WL 3121452, at *8. That the

Commonwealth did not establish the identity of the victim, or whether he was

still standing outside the window, was not relevant to Appellant’s “state of

____________________________________________


8 Appellant does not dispute on appeal that he was the shooter, and the
evidence sufficiently supports that he was the person shooting from inside Ms.
Batties’ apartment. See N.T., 11/16/16, at 19, 36, 92.

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mind” and the determination of his intent when he fired back at the alleged

shooter. See Lopez, 654 A.2d at 1155; see Fry, 491 A.2d at 844–45 (stating

that a jury could “find that a person intends the natural and probable

consequences of his actions”).

      As for Appellant’s remaining claim that the evidence was insufficient

because his prison phone call was too vague to determine whether he was

talking about this specific incident, we agree with the Commonwealth that this

is a challenge to the weight of the evidence rather than the sufficiency. See

Commonwealth’s Brief at 14-15; Palmer, 2018 WL 3121452, at *2.

Appellant, however, has waived any challenge to the weight of the evidence.

See Pa.R.Crim.P. 607(A) (“A claim that the verdict was against the weight of

the evidence shall be raised with the trial judge in a motion for a new trial:

(1) orally, on the record, at any time before sentencing; (2) by written motion

at any time before sentencing; or (3) in a post-sentence motion.”); accord

Commonwealth v. Kinney, 157 A.3d 968, 972 (Pa. Super. 2017).

      To the extent Appellant’s claim properly challenges the sufficiency of the

evidence, we conclude that viewing the evidence in the light most favorable

to the Commonwealth, there is enough context in the phone call for a jury to

determine that Appellant was talking about this specific incident. The shooting

occurred on July 12, 2015, and the phone call took place on July 16, 2015,

four days later. See Exhibit, 11/16/16, at C-18 (7/16/15). Further, in the

days preceding the July 16, 2015 phone conversation, Appellant had engaged




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in other phone calls where he had been discussing the night of the shooting

and the trial. See id. at C-18 (7/14/15); C-18 (7/15/15).9

       Finally, we note that the sentencing order incorrectly states that

Appellant pled guilty. Because it is undisputed that Appellant was convicted

following a jury trial, we remand for correction of this clerical error.

       Judgment of sentence vacated in part. Case remanded for the trial court

to correct the sentencing order to reflect that Appellant was found guilty.

Judgment of sentence affirmed in all other respects. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/18




____________________________________________


9 In any event, even without taking into consideration the prison phone call,
we would conclude that the evidence taken as a whole sufficiently establishes
that Appellant fired five to seven shots in response to the incoming shots with
the intent to cause serious bodily injury to the person firing the incoming
shots.


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