J-E02002-18


 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 STEVEN PREDMORE                          :    No. 238 EDA 2017

             Appeal from the Order Entered December 12, 2016
    In the Court of Common Pleas of Monroe County Criminal Division at
                      No(s): 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 McLAUGHLIN, J.:           FILED NOVEMBER 27, 2018

     I respectfully dissent. Although the evidence in this case is conflicting, I

believe a reasonable jury could reconcile the conflicts and conclude that the

evidence establishes that Steven Predmore committed the crime of attempted

murder. I therefore disagree with my learned colleagues in the Majority, and

would reverse the trial court’s order dismissing the charge of attempted

murder.

     Respectfully, I believe the Majority misapprehends the Commonwealth’s

argument.   The    majority   characterizes   the   Commonwealth’s     brief   as

contending that the Commonwealth made out a prima facie case of attempted

murder “based solely on evidence that Appellee had taken a substantial step

toward the commission of a first-degree murder.” Majority Opin. at 1. The

Majority then explains that mere evidence of a substantial step toward the

killing is insufficient; rather, to establish a prima facie case of attempted
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murder, the Commonwealth must also present evidence establishing that the

defendant possessed the specific intent to kill. Id. at 5.

       As I understand the Commonwealth’s argument, it does not omit the

mens rea element. Rather, the Commonwealth contends that “[t]he finder of

fact could reasonably find that . . . the defendant took a substantial step

toward the intentional[] killing. . . .” Com. Substituted Br. at 18. Although

perhaps inartfully stated, its point is that it presented a prima facie case

because a reasonable jury could find not only that Predmore took a substantial

step toward murdering the victim, but also that he possessed the specific

intent to kill.

       When I review the evidence, I agree with the Commonwealth that it

presented a prima facie case. The Commonwealth maintains that the

testimony that Predmore aimed the gun at the victim at chest-to-face level,

the victim started to run when he saw the firearm, and Predmore’s subsequent

shooting of the gun, in combination, all establish not only that Predmore took

a substantial step toward the killing, but also that Predmore possessed the

specific intent to kill. Com. Substituted Br. at 18.

       The Majority may be correct that the Commonwealth does not make out

a prima facie case of specific intent to kill if the evidence is that the defendant

shot the victim in the calf while two-to-three feet away from the victim. Here,

however, that is not the extent of the evidence. As the Commonwealth points

out, the victim testified that before Predmore shot him, Predmore aimed the

gun at him at “chest to face level”; the victim also testified that he started to

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run when he saw the firearm. N.T., 1/8/16, at 13, 24. In addition, eyewitness

Cheyenne Eberhart said that Predmore and the victim struggled for the firearm

just before the shooting, and that the two men were five feet apart when

Predmore fired the weapon. Id. at 32-33.

      Although the victim said Predmore was two to three feet away from him

when he fired the gun, id. at 12-13, I believe we must accept the greater

distance as being true, for purposes of our review. Certainly, as the majority

notes,   in   the    typical   case   the   shorter   distance   would   favor   the

Commonwealth’s attempts at establishing specific intent to kill. In this case,

however, I consider the slightly longer distance of five feet to be the

appropriate distance for us to consider, as the greater the distance, the more

likely it is that the defendant intended to shoot the victim in a vital bodily part

but simply missed.

      The evidence of such a scenario — Predmore’s aiming of the gun at vital

parts of the victim’s body, the struggle for the weapon, the victim’s running,

and a distance between Predmore and the victim – states a prima facie case

of attempted murder. Predmore’s aiming of the gun at the victim and his firing

it at the victim demonstrate the specific intent to kill, while the struggle, flight,

and distance would have affected Predmore’s accuracy. Together, these

factors raise an inference that he intended to kill the victim and tried to do so,

but simply failed.

      The Majority reaches a different conclusion based on three things: “the

victim’s unprovoked instigation of a confrontation”; the “lack of any verbal

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expression of intent to kill”; and “the near impossibility of Appellee’s missing

any area near a vital portion of the victim’s body from the range at which he

fired. . . .” Id. Respectfully, I believe the Majority’s approach is improper

because it both holds the Commonwealth to a greater burden than it must

carry at this juncture, and involves the weighing of the evidence.

       At this stage, the Commonwealth must merely “produce[] evidence of

each of the material elements of the crime charged and establish[] sufficient

probable cause to warrant the belief that the accused committed the offense.”

Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005) (quoting

Commonwealth v. Huggins, 836 A.2d 832, 866 (Pa. 2003)).1 It does not

bear   the    burden    of   proving    its    case   beyond   a   reasonable   doubt.

Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa.Super. 2017). The

Commonwealth carries its burden where there is “‘evidence, read in the light

most favorable to the Commonwealth, that sufficiently establishes both the

commission of a crime and that the accused is probably the perpetrator of that

crime.’” Commonwealth v. Starry, --- A.3d ---, 2018 PA Super 266, at *5

(filed Sept. 24, 2018) (quoting Commonwealth v. Hendricks, 927 A.2d 289,

291 (Pa.Super. 2007)).

       Importantly, we may not weigh the evidence or consider the various

witnesses’ credibility. Hilliard, 172 A.3d at 10 (citing Commonwealth v.

Landis, 48 A.3d 432, 444 (Pa.Super. 2012) (en banc)). That is not the judicial
____________________________________________


1See also Hilliard, 172 A.3d at 10; Commonwealth v. Marti, 779 A.2d
1177, 1180 (Pa.Super. 2001).

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function at the pretrial habeas corpus stage. Rather, weight and credibility are

for the factfinder at trial. Id.

      Our decision in Landis illustrates this last point and should guide our

analysis here. There, the defendant was charged with assault of a law

enforcement officer, among other things, and filed a pretrial motion for habeas

corpus. To support the charge, the Commonwealth presented police officers’

testimony that after the defendant shot his wife, he called 911 and barricaded

himself in the basement of their home. Landis, 48 A.3d at 446. After a lengthy

standoff, the officers attempted to Taser the defendant and ran down the

basement stairs to seize him. The defendant retreated into the basement,

pointed a handgun at the officers. The officer leading the charge reacted

quickly when he saw the gun, and turned and pushed the other officers back

toward the top of the stairs. Id. at 447. The defendant fired the gun but

missed the officers. Id.

      The trial court granted the writ, but this Court en banc reversed. We

first explained that because none of the officers had sustained injury, and the

parties did not dispute the other elements of the offense, the issue was

whether the Commonwealth had established prima facie that the defendant

had attempted to inflict bodily injury on the officers. Id. at 445 (citing 18

Pa.C.S. § 2702.1). Noting that attempt requires specific intent, we concluded

that the Commonwealth had satisfied that element, because pointing a gun at

a person and then firing it “‘speaks volumes as to one’s intention.’” Id. at 447

(quoting Commonwealth v. Hall, 830 A.2d 537, 543 (Pa. 2003)).

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      Most relevant to our present decision, we then rejected the trial court’s

determination that the evidence showed that the defendant had only intended

to frighten the officers. The trial court had reached that conclusion because

the bullet landed at the bottom of the stairs, instead of at the top, closer to

the officers. Id. at 448. We explained that the trial court’s consideration of

such alternative explanations resulted from the trial court’s failure to view the

evidence in the Commonwealth’s favor and its improper weighing of the

evidence. We “emphasiz[ed] that it is inappropriate for the trial court to make

credibility determinations in deciding whether the Commonwealth established

a prima facie case, and the charge must be bound over for trial if evidence of

the existence of each element of the offense is presented.” Id.

      Our reasons for rejecting the trial court’s analysis in Landis apply fully

here, and respectfully, I believe the Majority has failed to abide by the wisdom

of Landis. The Majority finds no prima facie case first because Predmore did

not actually say that he meant to kill the victim. Majority Opin. at 16.

Respectfully, I believe that analysis is improper because the Majority applies

something    closer   to   a   reasonable   doubt   standard   and   weighs   the

Commonwealth’s evidence, in conflict with our decision in Landis. Indeed, the

Majority points out what it perceives to be a flaw in the Commonwealth’s

evidence in order to discredit the Commonwealth’s evidence. However, it is

not for us to decide if the absence of certain evidence overcomes the evidence

the Commonwealth did, in fact, present. Rather, that is a function of a

factfinder. See Commonwealth v. Greth, 758 A.2d 692, 694 (Pa.Super.

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2000) (“It is the function of the jury to weigh any defense evidence against

the Commonwealth’s prima facie evidence in reaching a verdict.”). So long as

the Commonwealth presented a prima facie case, as I conclude it did, it is for

the factfinder at trial, and not this Court, to determine if other evidence

contrary to the evidence against the defendant creates reasonable doubt.

Landis, 48 A.3d at 448; Hilliard, 172 A.3d at 10.

      The Majority next cites as a reason for its decision the victim’s alleged

instigation of the altercation. Majority Opin. at 16. But any evidence that he

did so would at most support a defense of justification or excuse. Even

assuming arguendo that there is evidence to support all of the elements of

such defenses, once again, we must disregard such evidence at this stage.

Contrary to the Majority’s approach, at the pretrial stage, we must consider

the evidence in the favor of the Commonwealth, and evidence of justification

or excuse does not render the Commonwealth’s prima facie case a nullity.

Rather, justification or excuse “is a matter that is properly raised in defense

at trial.” Commonwealth v. Benz, 565 A.2d 764, 767 (Pa. 1989) (opinion

announcing judgment of the Court). See also Commonwealth v. Lopez,

565 A.2d 437, 440 (Pa. 1989); Greth, 758 A.2d at 694.

      The Majority similarly weighs the evidence when it declares that to

reverse the trial court would be to ask the jury “to rest a verdict on mere

speculation or conjecture that Appellee just happens to be the world’s worst

shot, or that the victim only escaped more serious injury due to divine

intervention.” Id. Respectfully, I believe that reasoning runs counter to a long

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line of cases, including Landis. As we stated in Landis, “it is for the jury to

decide the weight to be given to the location of the bullet and the reasons

Appellee did not succeed in actually shooting” the victim.

      In view of the other evidence in this case, Predmore’s failure to shoot

the victim – even at relatively close range – does not doom the

Commonwealth’s case as a matter of law. Rather, when considered in the

context of the totality of the evidence, the Commonwealth presented evidence

of each element of attempted murder and established sufficient probable

cause that Predmore committed the offense. Santos, 876 A.2d at 363. As I

explain above, a jury could reasonably conclude that a factor such as the

struggle for the gun or the victim’s flight caused the defendant to miss.

      The Majority’s reasoning is also contrary to Hilliard, where we turned

aside a claim that the grant of habeas corpus was proper because the trial

court had appropriately resolved contradictory evidence. Hilliard, 172 A.3d

at 14. We instead made clear in Hilliard that resolution of inconsistencies in

the evidence is for the jury, not this court.

      Applying the standards set forth in Santos, Huggins, Hilliard, Landis,

and the other cases I have cited, I believe that the Commonwealth here

presented sufficient evidence to merit submitting the charge of attempted

murder to a factfinder. Deeming the Commonwealth’s evidence as true for

purposes of our review, and making all reasonable inferences from that

evidence in the Commonwealth’s favor, a factfinder could reconcile the

conflicting evidence and find Predmore guilty of attempted murder. It could

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reasonably find that Predmore’s aiming of the gun at the victim and firing it

showed that he specifically intended to kill the victim, but missed because the

two engaged in a struggle, the victim turned and ran, and the victim was some

distance away. I respectfully dissent.




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