Com. v. Mitchell, S. (memorandum)

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J-S19023-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. STEFAN MITCHELL Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2243 EDA 2021 Appeal from the Judgment of Sentence Entered September 23, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001086-2019 BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.* MEMORANDUM BY OLSON, J.: FILED JUNE 27, 2022 Appellant, Stefan Mitchell, appeals from the judgment of sentence entered on September 23, 2021, in the Criminal Division of the Court of Common Pleas of Philadelphia County. We affirm. On January 26, 2019, Appellant was arrested and charged with attempted murder, aggravated assault, several firearms offenses, and other related crimes for shooting Tyquan Pate (Pate) 10 times after Pate refused to purchase a firearm for Appellant.1 At the conclusion of trial on June 6, 2021, Appellant was found guilty of attempted murder, aggravated assault, possession of a firearm without a license, possession of an instrument of ____________________________________________ * Former Justice specially assigned to the Superior Court. We incorporate the trial court’s thorough recitation of the facts of this case as if it were set forth in full in this memorandum. See Trial Court Opinion, 12/2/21, at 1-12. 1 J-S19023-22 crime, possession of a firearm on the public streets of Philadelphia, and burglary.2 On June 16, 2021, defense counsel presented a motion for judgment of acquittal on certain charges that were not addressed at trial. The trial court granted this motion and discharged Appellant on the following offenses: discharge of a firearm into occupied structure, terroristic threats, simple assault, recklessly endangering another person, and criminal trespass. On September 23, 2021, the court imposed the following sentence: 10-20 years’ incarceration for attempted murder; 10-20 years’ incarceration for burglary (concurrent to attempted murder); two and one-half to five years’ incarceration for carrying a firearm on the public streets of Philadelphia (consecutive to attempted murder); seven years of reporting county probation for possession of a firearm without a license (consecutive to attempted murder); and, no further penalty for possessing an instrument of crime and for aggravated assault. See Trial Court Opinion, 12/2/21, at 1-2. Appellant filed a timely notice of appeal on October 5, 2021. The following day, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on October 27, 2021. The trial court issued its Rule 1925(a) opinion on December 2, 2021. Appellant’s brief raises the following questions for our review. ____________________________________________ 18 Pa.C.S.A. §§ 2502 and 901, 2702(a), 6106(a)(1), 907(a), 6108, and 3502(a)(1), respectively. 2 -2- J-S19023-22 Was the evidence insufficient to sustain the charges of attempted murder and aggravated assault because the testimony of complainant and witness, Aigner Cherry, were inconsistent? Was the evidence insufficient to sustain the charges of attempted murder and aggravated assault because there was no testimony of a medical professional to injuries sustained by the complainant? Was the evidence insufficient to sustain the firearms charges of firearms not to be carried without a license, carrying firearms in public, and possession of an instrument of crime because no firearm was recovered, and no gunshot residue was located on any recovered clothing[?] Appellant’s Brief at 8 (complete capitalization omitted). In his first issue, Appellant argues that “[t]here was insufficient evidence to sustain the conviction[s for] attempted murder and aggravated assault because of inconsistent testimony of Aigner Cherry [(Cherry), Appellant’s girlfriend and sister of the complainant,] and [Pate, the complainant].” See Appellant’s Brief at 12. The trial court rejected this argument in its Rule 1925(a) opinion and concluded that the Commonwealth introduced sufficient evidence to prove the elements of attempted murder and aggravated assault beyond a reasonable doubt. See Trial Court Opinion, 12/2/21, at 13-17. After setting forth the correct standard of review, as well as the principles of law identifying the legal elements of attempted murder and aggravated assault, the trial court determined that the trial testimony of Cherry and Pate provided sufficient evidentiary support to sustain Appellant’s convictions. After careful review, we agree with the trial court’s conclusions and adopt its rationale as our own. Accordingly, Appellant’s first issue fails. -3- J-S19023-22 In his second claim, Appellant contends that “[t]here was insufficient evidence to sustain [Appellant’s] conviction[s for] attempted murder and aggravated assault because there was no testimony of a medical professional giving their expert opinion of ‘serious bodily injury.’” Appellant’s Brief at 12. This claim is meritless. We have described the elements of attempted murder as follows. Criminal attempt is separately codified at 18 Pa.C.S.A § 901, which states, “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). Criminal attempt is a specific-intent crime. Thus, attempted murder require[s] a specific intent to kill. Commonwealth v. Robertson, 874 A.2d 1200, 1207 (Pa. Super. 2005) (“For the Commonwealth to prevail in a conviction of criminal attempt to commit homicide, it must prove beyond a reasonable doubt that the accused with a specific intent to kill took a substantial step towards that goal.”). Commonwealth v. Palmer, 192 A.3d 85, 88 (Pa. super. 2018), appeal denied, 204 A.3d 924 (Pa. 2019). Moreover, our Supreme Court requires the following proof to convict a defendant of aggravated assault. A person may be convicted of aggravated assault graded as a first degree felony 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.A. § 2702(a)(1). “Serious bodily injury” means “[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.A. § 2301. “A person commits an attempt when, with intent to commit a specific crime, he does any -4- J-S19023-22 act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S.A. § 901(a). An attempt under § 2702(a)(1) requires a showing of some act, albeit not one causing serious bodily injury, accompanied by an intent to inflict serious bodily injury. Commonwealth v. Alexander, 383 A.2d 887, 889 (Pa. 1978). “A person acts intentionally with respect to a material element of an offense when ... it is his conscious object to engage in conduct of that nature or to cause such a result[.]” 18 Pa.C.S.A. § 302(b)(1)(i). . . . The intent to cause serious bodily injury may be proven by direct or circumstantial evidence. Commonwealth v. Hall, 830 A.2d 537, 542 (Pa. 2003). Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006) (parallel citations omitted). In this case, Pate testified that Appellant shot him multiple times and the Commonwealth presented to the jury a stipulation between the parties reflecting the gunshot injuries Pate sustained following Appellant’s armed assault. Moreover, during his testimony, Pate showed the trial court and the jury the gunshot wounds he sustained in his forearm, his left bicep, left torso, back, left leg, hip, groin, buttocks, shin, and right leg. See Trial Court Opinion, 12/2/21, at 6, citing N.T. Trial, 6/3/21, at 204-213. Pate’s testimony easily established, beyond a reasonable doubt, that Appellant acted with an intent to kill and inflicted serious bodily injury when he carried out his near-lethal attack on Pate.3 ____________________________________________ Pate explained during his testimony that a bullet fired by Appellant remains lodged near Pate’s spine and that he could become paralyzed if it is dislodged. See Trial Court Opinion, 12/2/21, at 6, citing N.T. Trial, 6/3/21, at 214-213 and 224-232. 3 -5- J-S19023-22 Our rules of evidence permit opinion testimony where a witness, qualified as an expert, possesses specialized knowledge beyond that of an average person, where the expert’s specialized knowledge will assist the factfinder to understand the evidence or determine a fact in issue, and where the expert’s methodology is generally accepted in the relevant field. Pa.R.E. 702(a)-(c). See These rules are understood to be permissive, not mandatory, and Appellant has not cited case law that compels expert testimony in this context. Where, as here, the facts in issue do not involve specialized knowledge, expert testimony is not required. Pate’s testimony, together with the display of his wounds at trial, provided a sufficient evidentiary basis for the jury to find both an intent to kill and serious bodily injury. Consequently, Appellant is not entitled to relief on his second claim. In his third issue, Appellant asserts that the evidence is insufficient to support his firearms convictions because the Commonwealth failed to prove that he constructively possessed a firearm. See Appellant’s Brief at 17. In its Rule 1925(a) opinion, the trial court carefully reviews the testimony at trial and concludes that, “the evidence was sufficient [] to show that [Appellant] constructively possessed a gun.” Trial Court Opinion, 12/2/21, at 19. We concur in the trial court’s determination and adopt its rationale as our own. Hence, Appellant’s third issue fails. We have carefully reviewed the certified record, the submissions of the parties, and the opinion of the trial court. Based upon our review, we conclude -6- J-S19023-22 that Appellant is not entitled to relief. We have adopted the trial court’s opinion as our own as to issues one and three and concluded separately that Appellant cannot prevail on issue two. Because we have adopted the trial court’s opinion in part, the parties are instructed to include a copy of the trial court’s opinion with all future filings that pertain to our disposition of this appeal. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/27/2022 -7- Circulated 06/03/2022 12:12 PM

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