J-A07010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

O’NEAL JAMEL OLIVE

                        Appellant                  No. 609 WDA 2015


          Appeal from the Judgment of Sentence March 10, 2015
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0009029-2014

BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED AUGUST 21, 2017

     Appellant, O’Neal Jamel Olive, appeals from the judgment of sentence

entered on March 10, 2015, as made final by the denial of his post-sentence

motion on March 18, 2015. We affirm in part, vacate in part, and remand

for the sole purpose of resentencing.

     The factual background of this case is as follows. On May 11, 2014,

Appellant fired approximately 11 shots at Jahtae Boyce (“Boyce”) and

Deandre Carter (“Carter”) as they were standing in front of Carter’s

residence. Neither Boyce nor Carter was hit by the gunfire. Three shots,

however, entered Mary Johnston’s (“Johnston’s”) residence, which was

located next to Carter’s residence. Johnston and her husband were in the

residence when one of those bullets struck Johnston in the face. As a result

of that gunshot wound, Johnston suffered brain damage.



* Retired Senior Judge assigned to the Superior Court
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        The procedural history of this case is as follows. On August 12, 2014,

the Commonwealth charged Appellant via criminal information with four

counts of recklessly endangering another person,1 three counts of attempted

murder,2 three counts of aggravated assault,3 two counts of discharging a

firearm into an occupied structure,4 and carrying a firearm without a

license.5   At the conclusion of the Commonwealth’s case-in-chief, the trial

court granted Appellant’s motion for judgment of acquittal on the carrying a

firearm without a license charge.     On December 18, 2014, Appellant was

convicted of the remaining 12 offenses.

        On March 10, 2015, the trial court sentenced Appellant to an

aggregate term of 35 to 70 years’ imprisonment. This aggregate sentence

consisted of consecutive terms of 15 to 30 years’ imprisonment on one

attempted murder conviction (related to Johnston), 10 to 20 years’

imprisonment on two attempted murder convictions (related to Boyce and

Carter), and no further penalty on the remaining ten convictions. On March




1
    18 Pa.C.S.A. § 2705.
2
    18 Pa.C.S.A. § 901, 2502.
3
    18 Pa.C.S.A. § 2702(a)(1).
4
    18 Pa.C.S.A. § 2707.1(a).
5
    18 Pa.C.S.A. § 6106(a)(1).



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13, 2015, Appellant filed a post-sentence motion which was denied on March

18, 2015. This timely appeal followed.6

        Appellant presents three issues for our review:

     1. Was the evidence insufficient to sustain [Appellant’s] convictions
        . . . for [attempted murder] because the Commonwealth failed
        to prove, beyond a reasonable doubt, that [Appellant] had
        specific intent to kill any of the victims?

     2. Was the sentence imposed for [the attempted murder of
        Johnston] illegal because it was greater than the lawful
        maximum permitted for that offense?

     3. Did the trial court fail to adequately consider and apply all of the
        relevant sentencing criteria . . . ?

Appellant’s Brief at 6 (complete capitalization omitted).7

        In his first issue, Appellant argues that the evidence was insufficient to

convict him of attempted murder.         “Whether sufficient evidence exists to

support the verdict is a question of law; our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Giron, 155 A.3d

635, 638 (Pa. Super. 2017) (citation omitted).          In assessing Appellant’s

sufficiency challenge, we must determine “whether, viewing all the evidence

admitted at trial in the light most favorable to the [Commonwealth], there is

sufficient evidence to enable the fact-finder to find every element of the


6
   On May 18, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).     On February 25, 2016, Appellant filed his concise
statement. On June 9, 2016, the trial court issued its Rule 1925(a) opinion.
All issues raised on appeal were included in Appellant’s concise statement.
7
    We have re-numbered the issues for ease of disposition.


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crime beyond a reasonable doubt.” Commonwealth v. Sauers, 159 A.3d

1, 11 (Pa. Super. 2017) (citation omitted). “[T]he evidence established at

trial need not preclude every possibility of innocence and the fact-finder is

free    to   believe   all,   part[,]   or    none     of   the   evidence   presented.”

Commonwealth v. Boniella, 158 A.3d 162, 165 (Pa. Super. 2017)

(citation omitted).

        “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.” Commonwealth v.

Blakeney, 946 A.2d 645, 652 (Pa. 2008) (citation omitted).                     Appellant

argues that in this case the Commonwealth failed to prove that he had the

specific intent to kill. We disagree.

        It is well-settled that when a defendant fires multiple gunshots at an

individual (or group of individuals), the jury may reasonably conclude that

the defendant had the specific intent to kill.               See Commonwealth v.

Kennedy, 151 A.3d 1117, 1122 (Pa. Super. 2016), citing Commonwealth

v.     Hughes,   865     A.2d    761,    793    (Pa.    2004);     Commonwealth       v.

Chamberlain, 30 A.3d 381, 394 (Pa. 2011) (citations omitted).                    In this

case, Appellant fired 11 shots at Boyce and Carter.                 From this evidence

alone, the jury could reasonably infer that Appellant had the specific intent

to kill Boyce and Carter.




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      All of Appellant’s arguments go to the weight of the evidence and not

its sufficiency. For example, Appellant notes that Boyce and Carter differed

on how far they were from Appellant when he fired the shots.           What is

important, however, is that both testified that Appellant was across the

street when he began firing at them.       The exact distance is immaterial to

whether Appellant had the specific intent to kill.        Similarly, Appellant

contends that there was no motive for him to kill Boyce and Carter. “It is

well established that the Commonwealth is not required, as a matter of law,

to prove the accused’s motive.” Commonwealth v. Briggs, 12 A.3d 291,

340 n.44 (Pa. 2011) (citation omitted). As such, we conclude that there was

sufficient evidence for the jury to find that Appellant had the requisite

specific intent to kill Boyd and Carter.

      With respect to Johnston, Appellant’s specific intent to kill Boyce and

Carter   transferred   to   Johnston.       See   18   Pa.C.S.A.   §   303(b);

Commonwealth v. Padilla, 80 A.3d 1238, 1247 (Pa. 2013) (citation

omitted). Accordingly, there was sufficient evidence for all three attempted

murder convictions.

      In his second issue, Appellant argues that the trial court imposed an

illegal sentence of 15 to 30 years’ imprisonment for the attempted murder of

Johnston. “Issues relating to the legality of a sentence are questions of law.

Our standard of review over such questions is de novo and our scope of




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review is plenary.” Commonwealth v. Libengood, 152 A.3d 1057, 1061-

1062 (Pa. Super. 2016) (citation omitted).

     The Crimes Code provides:

     [A] person who has been convicted of attempt, solicitation[,] or
     conspiracy to commit murder, murder of an unborn child[,] or
     murder of a law enforcement officer where serious bodily injury
     results may be sentenced to a term of imprisonment which shall
     be fixed by the court at not more than 40 years. Where serious
     bodily injury does not result, the person may be sentenced to a
     term of imprisonment which shall be fixed by the court at not
     more than 20 years.

18 Pa.C.S.A. § 1102(c). “Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Commonwealth v. Conaway, 105 A.3d 755, 761 (Pa. Super.

2014), quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Thus,

under section 1102(c), the jury must determine that a victim suffered

serious bodily injury in order to increase the maximum penalty from 20 to

40 years’ imprisonment.

     In this case, the jury did not make an explicit finding that Appellant

caused serious bodily injury when he attempted to murder Johnston.

Nonetheless, the Commonwealth argues that the jury’s guilty verdict on the

aggravated assault charge, which required a finding that Appellant caused

Johnston serious bodily injury, was sufficient under Apprendi to increase

the maximum sentence to 40 years’ imprisonment.        Recently, this Court

rejected this same argument and held that “any finding by the jury of


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serious bodily injury for aggravated assault [can] not be used to infer that

the jury found serious bodily injury for the attempted murder charge.”

Commonwealth v. Barnes, 2017 PA Super 215, 12 (July 10, 2017) (en

banc) (citations omitted).         Therefore, under Barnes, Appellant was only

subject to a maximum sentence of 20 years’ imprisonment for the attempted

murder of Johnston.            As he was sentenced to a maximum of 30 years’

imprisonment on that count, his sentence was illegal.              Moreover, as we

conclude that vacatur of Appellant’s sentence for the attempted murder of

Johnston upsets the trial court’s overall sentencing scheme, we vacate the

entire     judgment     of     sentence   and   remand   for   resentencing.   See

Commonwealth v. McCamey, 154 A.3d 352, 359 (Pa. Super. 2017)

(citation omitted).

         As we vacate Appellant’s sentence and remand for resentencing, we

need not address Appellant’s discretionary aspects claim.             See Barnes,

2017 PA Super 215 at 24 n.13.

         Judgment of sentence affirmed in part and vacated in part.            Case

remanded. Jurisdiction relinquished.

         Stabile, J., joins.

         Strassburger, J., files a Concurring Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2017




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