J-S02036-18

                                 2018 PA Super 185



 COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
 ROBERT PALMER                              :
                                            :
                     Appellant              :    No. 3618 EDA 2016

          Appeal from the Judgment of Sentence October 28, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0010047-2015


BEFORE:      BOWES, J., NICHOLS, J., and RANSOM*, J.

OPINION BY BOWES, J.:                                    FILED JUNE 26, 2018

      Robert Palmer appeals from the judgment of sentence of nineteen to

eighteen years incarceration imposed following his convictions for, inter alia,

aggravated assault. We affirm.

      The facts of this case read like a law school exam. A man is captured

on surveillance video extending his arm in a position consistent with firing a

gun. At the same time as indicated on the video, a vehicle carrying three

persons arrives at an intersection near the gunman’s location, and turns down

a road. That vehicle is followed by two more cars. The driver of the first car,

Danielle Kelsey, is struck in the back with a single bullet, causing significant

injuries.   No one else is hit.    There is no forensic or ballistics evidence to

establish the path of the bullet that struck the victim, nor are any other bullets

recovered.    However, police discover ten fired cartridge casings from the



____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S02036-18



location of the gunman as indicated by the video, all of which were fired from

the same weapon. The gunman is identified, arrested, and speaks to police.

He asks what his bail would be if the shooting was an accident. What crimes

have been committed?
                                                 I

                                      Appellant’s charges

       The Commonwealth charged Appellant with, inter alia, two counts of

attempted murder, and two counts of aggravated assault.            The crimes

identified Ms. Kelsey and John Doe as the respective victims.1 The statutory

text for those crimes reads as follows.2 A person is guilty of criminal homicide

“if he intentionally, knowingly, recklessly or negligently causes the death of

another human being.” 18 Pa.C.S. § 2501. A person is guilty of aggravated

assault if he:

       (1) 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). The aggravated assault counts were charged as

lesser included offenses of attempted homicide, as those charges were

____________________________________________


1 The Commonwealth proceeded to trial on eight crimes: the aforementioned
four charges, plus carrying a firearm without a license, carrying a firearm in
Philadelphia, and two counts of recklessly endangering another person.

2  Appellant’s argument attaches significance to the trial court’s judgment of
acquittal on the attempted homicide counts. Since the intent to commit
serious bodily injury is subsumed within the intent to kill, we use the terms
interchangeably for ease of reference.

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predicated on the same acts. See Commonwealth v. Dale, 836 A.2d 150,

154 (Pa.Super. 2003) (“The conviction for aggravated assault, being a lesser

included offense, is supported by the same facts which support Dale’s

conviction for attempted murder, since the elements of aggravated assault

are necessarily included in the offense of attempted murder and merge with

it for sentencing purposes.”).

      Criminal attempt is separately codified at 18 Pa.C.S. § 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. § 901(a).

      Criminal attempt is a specific-intent crime.   Thus, attempted murder

required 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.”). Furthermore, the aggravated assault

statutory language includes attempt within its definition, and we therefore

apply the language contained within § 901 when analyzing the sufficiency of

attempted aggravated assault. See Commonwealth v. Fortune, 68 A.3d

980, 984 (Pa.Super. 2013) (en banc) (“For aggravated assault purposes, an

attempt is found where an accused who possesses the required, specific intent

acts in a manner which constitutes a substantial step toward perpetrating a


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serious bodily injury upon another.”) (quotation marks and citation omitted).

Specific intent, in turn, is defined as follows:

      (b) Kinds of culpability defined.—

            (1) A person acts intentionally with respect to a
            material element of an offense when:

                    (i) if the element involves the nature of
                    his conduct or a result thereof, it is his
                    conscious object to engage in conduct of
                    that nature or to cause such a result; and

                    (ii) if the element involves the attendant
                    circumstances, he is aware of the
                    existence of such circumstances or he
                    believes or hopes that they exist.

18 Pa.C.S. § 302.

      The trial court granted Appellant’s motion for judgment of acquittal at

the two counts of attempted homicide. The jury convicted Appellant of the

remaining six charges, and the trial court imposed an aggregate sentence of

nine to eighteen years incarceration. Appellant filed a timely notice of appeal,

and the trial court ordered him to file a Pa.R.A.P. 1925(b) concise statement

of matters complained of on appeal. The trial court authored its opinion in

response, and the matter is ready for review of Appellant’s two claims:

      A. Is the evidence insufficient as a matter of law to sustain a
      conviction for aggravated assault, attempt to cause serious bodily
      injury to a John or Jane Doe, 18 Pa.C.S. § 2702(a)(1), beyond a
      reasonable doubt because attempt crimes require a specific intent
      and the Commonwealth failed to prove the requisite men[s] rea?

      B. Did the trial court err in permitting Detective Wearing to testify,
      over numerous objections, that the person or persons seen in the
      videos in the area of 17th Street and Susquehanna Avenue on July

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        16, 2015 at 8:12 p.m., 8:19 p.m., 8:22 p.m., 10:00 p.m., 10:27
        p.m., 10:59 p.m., and 11:01 p.m., were the same person
        appearing in the video at the time of the shooting whereas
        Detective Wearing improperly offered lay opinion evidence in
        violation of Pa.R.E. 701 because the testimony was not helpful to
        the jury, was prejudicial, and intruded upon the jury’s
        independent assessment of a video?

Appellant’s brief at 4.


                                               II

                              Sufficiency of the evidence

              Appellant’s first claim challenges the sufficiency of the evidence

supporting the aggravated assault with respect to John Doe. For purposes of

sufficiency of the evidence review, it is undisputed that the Commonwealth

established that Appellant was the gunman.3 The following principles govern

our review.

        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.
____________________________________________


3   Appellant’s defense at trial was that he was not the shooter.

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Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017)

(citations and quotation marks omitted).


                                      A

           Specific intent, transferred intent, and inchoate crimes

     The crimes at issue all required proof of specific intent.   There is no

dispute that firing ten bullets at a person constitutes a substantial step

towards the commission of attempted homicide if directed at a particular

person.   The debate between the parties focuses on what Appellant was

intending to do when he fired those bullets.     The key point of contention

revolves around the fact that the Commonwealth conceded that Appellant did

not target Ms. Kelsey’s vehicle, based upon his statement to police:

     [Appellant’s] purposeful conduct of extending his arm in a
     shooting position and firing ten shots from a semi–automatic
     weapon into a populated street proved his intent to cause serious
     bodily injury to the unidentified person designated "John Doe."
     That is why he asked Detective Rocks what the consequences
     would be if shooting Ms. Kelsey was an accident.

Commonwealth’s brief at 12.

     The fact that the Commonwealth explicitly alleged that Appellant did not

intend to hit Ms. Kelsey or her vehicle means that he did not, in the

Commonwealth’s view, specifically intend to kill her. Rather, Appellant had

intended to kill someone else, but the Commonwealth could not identify him.

The decision to charge specific intent crimes naming Ms. Kelsey as a victim

despite the presence of only one purported victim is permissible under

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Pennsylvania law. The dissonance is resolved by the doctrine of transferred

intent.4

       In Commonwealth v. Thompson, 739 A.2d 1023 (Pa. 1999), our

Supreme Court held that transferred intent applies to inchoate crimes.

Therein, Donovan Aitken exited his apartment along with his girlfriend and

another man, Francisco Forbes.           As Forbes crossed the street towards his

vehicle, he observed Thompson pull out a gun and shoot in his direction.

Forbes, thinking that Thompson was firing at him, ran in a zig-zag pattern to

____________________________________________


4   The doctrine is codified at 18 Pa.C.S. § 303:

       § 303. Causal relationship between conduct and result

              ....

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

18 Pa.C.S. § 303(b).


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avoid being shot. As it turned out, Thompson was targeting Aitken, who fell

to the ground during the melee. Forbes then saw Thompson shoot Aitken

several more times, killing him. Thompson was convicted of, inter alia, first-

degree homicide for killing Aitken, and attempted aggravated assault with

respect to Forbes.

      The theory supporting the attempted aggravated assault conviction was

that Thompson’s specific intent to murder Aitken transferred to Forbes, even

though Forbes did not suffer serious bodily injury. Thompson asserted that

the evidence was legally insufficient, and claimed that the trial court

erroneously issued a transferred intent instruction over his objection since he

did not intend to cause any injury to Forbes. Our Supreme Court disagreed:

      Appellant claims that the transferred intent instruction was not
      warranted because Forbes was never actually shot and because
      Forbes was not an intended victim. As noted above, however, in
      order to sustain the conviction for aggravated assault, the
      Commonwealth only needed to establish that appellant attempted
      to cause serious bodily injury. There is no requirement that the
      victim actually be injured. Moreover, appellant's argument that
      the transferred intent instruction was not warranted because he
      did not intend to shoot Forbes ignores the essence of the
      transferred intent doctrine, that is, the person who ultimately is
      the victim not be the original intended victim. The transferred
      intent theory provides that if the intent to commit a crime exists,
      this intent can be transferred for the purpose of finding the intent
      element of another crime. The evidence here demonstrated that
      appellant shot in the direction of Forbes even though he may have
      only intended to shoot Aitken. This evidence was sufficient to
      warrant the transferred intent instruction.

Id. at 1029–30 (footnote, quotation marks, and citations omitted) (emphasis

in original). Since Thompson sustained a conviction of attempted aggravated


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assault, an inchoate crime, its analysis categorically applies to other inchoate

crimes such as attempted murder.

                                       B

                   Transferred intent – aggravated assault

      Since attempted aggravated assault and attempted homicide both

require specific intent, there was no legal impediment to charging two counts

of each crime. An additional complexity arises, however, due to the fact that

the aggravated assault crime is disjunctive. Thus, with respect to victim Ms.

Kelsey, the Commonwealth could satisfy the elements of the crime by

establishing, via transferred intent, that Appellant attempted to cause serious

bodily to her, or, in the alternative, that he “caused [serious bodily] injury

intentionally, knowingly or recklessly[.]”   For purposes of sustaining that

charge, the jury was required to answer this question: was the bullet that

struck Ms. Kelsey actually meant to strike another person? If so, then the

intent transfers, and the Commonwealth would not even have to establish

serious bodily injury.   If, on the other hand, that bullet was fired with no

specific intent to hit a person, then Appellant could be found guilty based on

the fact he actually caused serious bodily injury via reckless behavior

manifesting extreme indifference to the value of human life. Appellant avers

that the jury could not have determined that the bullet was meant for a person

under these circumstances.     See Appellant’s brief at 16-17 (“The shooting

could have occurred for any myriad of reasons - trying to stop a moving car


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by shooting the tires, shooting at an attacking stray dog, target practice on a

stop sign, firing warning shots, or even shooting at imagined flying monkeys

during an intoxicated state.”).

      Appellant does not contest the sufficiency of the evidence regarding Ms.

Kelsey. At this juncture, we note that the Commonwealth argued, with respect

to Ms. Kelsey, that either theory applied:

      Everyone agrees it is the fundamental principle of this case that
      Danielle Kelsey was a completely innocent victim, that she had
      nothing to do with it, that Mr. Palmer was not trying to shoot her.
      And I have to be honest, Mr. Krouse said and he's right, we will
      never know who Mr. Palmer was trying to shoot that night, we
      won't.

      Ladies and gentlemen, that doesn't change what we saw and that
      doesn't change what happened. He's charged with shooting
      someone, shooting at someone and hitting Danielle Kelsey. The
      reason he's responsible for Danielle Kelsey, even though he
      wasn't shooting at her it's transferred intent.

      The Judge will instruct you on this because what it says is you
      don't get to miss and get one for free. Right? If Mr. Krouse is
      stands up [sic] and tries to shoot me and shoots Sam, we don't
      get to say, oh, but I was shooting for Mr. Krouse. It doesn't count
      that way. It's ridiculous, that's what we are talking about here. He
      is shooting at someone, we will never know who. It doesn't matter
      who because we know what he's doing. We know what he's trying
      to do. He's trying to very seriously hurt someone. He happens to
      very seriously hurt Danielle Kelsey. It is aggravated assault on the
      person Jane Doe or John Doe, we don't know. Maybe an ex-
      girlfriend, maybe an ex-friend, maybe a rival, I have no idea.
      Whoever it is he's charged with trying to shoot them and cause
      them serious bodily injury and he's charged with hitting Danielle
      Kelsey and causing her serious bodily injury. That's the standard
      for aggravated assault, that's what I want you to focus on.
      Attempting to cause serious bodily injury and causing
      injury.




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N.T., 8/18/16, at 62-63 (emphases added).5

        The trial court instructed the jury on both theories.      Id. at 85-89.

Accordingly, the jury could have determined that Appellant specifically

intended to cause serious bodily injury to John Doe, but hit Ms. Kelsey instead.

Alternatively, it could have decided that Appellant, while doubtlessly causing

serious bodily injury, did so recklessly.

                                               III

                Specific intent as applied to an unidentified victim

       As in Thompson, the theory in this case was that Appellant’s specific

intent transferred to Ms. Kelsey. This case is distinguishable from Thompson,

however, in that there is no readily identifiable victim at whom Appellant was

firing. Appellant emphasizes that distinction. “[O]ne can infer that by firing

a gun at a crowd of people, the intent is to hit or kill at least someone in the

crowd. However, that law does not apply here where there are no facts to

support the existence of a single possible human target, let alone a crowd.”

Appellant’s brief at 19-20 (citation omitted).6 Thus, Appellant argues that he

could not possess a specific intent to cause serious bodily injury directed



____________________________________________


5As indicated by the last sentence, the Commonwealth referenced both types
of aggravated assault with respect to Ms. Kelsey: an attempt to cause serious
bodily injury via transferred intent, and causing actual serious bodily injury.

6  If there is no intended victim, then the Commonwealth’s theory of
transferred intent as to Ms. Kelsey fails, at least in the absence of evidence
that Appellant believed or hoped that a potential victim was present.

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towards anyone. For the following reasons, we disagree and find that the

jury could have determined that Appellant fired into a crowd of people, and,

in turn, possessed the specific intent to cause serious bodily injury to someone

in that crowd.


                                       A

                 The trial court’s ruling on attempted homicide


      We now briefly discuss the trial court’s granting of Appellant’s motion of

acquittal on the attempted homicide charges, since the court’s remarks are

significant to Appellant’s argument. Appellant’s brief at 18-19 (“Not only is

there no evidence that the street was ‘crowded,’ the trial court even

recognized as much when Appellant moved for a judgment of acquittal on the

charge of attempted murder.”). The trial court ruled as follows:

      THE COURT: We did have this argument at the motion to quash
      and at that time I disagreed and found that there was prima fascia
      [sic] evidence based on the ten shots. We are at a different level
      now. We are at a point where you would be asking this jury based
      on the firing of ten shots and the firing of ten shots only --

      [COMMONWEALTH]: And the location of the shots which I think
      is particularly significant.

      THE COURT: I didn't finish my sentence.

      [COMMONWEALTH]: I apologize.

      THE COURT: That that shows specific intent to kill. There is no
      intended victim here, there is no evidence of an intended victim,
      it could just as easily be that the shooter was shooting down the
      street of an empty block as it could be, or shooting randomly as
      it could be that there was some specific intent [to] kill some


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      person. I just find that the Commonwealth's case falls short of
      that.

N.T., 8/18/16, at 12-13.

      If it were equally likely that Appellant was shooting down an empty

street as it was he fired down a crowded street, then any conviction based on

specific intent to a hit a person would be based on speculation. “When two

equally reasonable and mutually inconsistent inferences can be drawn from

the same set of circumstances, a jury must not be permitted to guess which

inference it will adopt, especially when one of the two guesses may result in

depriving a defendant of his life or his liberty.” Commonwealth v. Hubbard,

372 A.2d 687, 692 (Pa. 1977) (quoting Commonwealth v. Woong Knee

New, 47 A.2d 450, 468 (Pa. 1946)); Commonwealth v. Johnson 818 A.2d

514 (Pa.Super. 2003) (reversing judgment of sentence where “two opposing

and mutually inconsistent inferences could be drawn from the facts presented

herein”).

      Appellant presented this argument in his concise statement.      “Is the

evidence insufficient as a matter of law . . . because attempt crimes require a

specific intent and in the trial court’s own words, the Commonwealth

presented ‘no evidence of an intended victim[?]’”         Concise Statement,

2/17/17, at 2. The trial court responded in its opinion as follows:

      In granting Appellant's motion for acquittal on the attempted
      murder charges, this Court did not state that the Commonwealth
      lacked sufficient evidence to prove a specific intent "to cause
      serious bodily injury" to someone. This Court stated that the
      Commonwealth lacked sufficient evidence to prove "some specific

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       intent to kill some person." Although the specific intent to kill
       necessarily includes the intent "to cause serious bodily injury," the
       reverse is not necessarily true. The "intent to kill" that is necessary
       to prove attempted murder is "greater" than the intent required
       to prove attempted aggravated assault - i.e., intent to cause
       serious bodily injury. Thus the jury could properly find that the
       evidence established a specific intent to commit aggravated
       assault but did not establish the "greater" specific intent to kill
       someone.

Trial Court Opinion, 4/10/17, at 8 n.10 (emphasis added).

       We disagree with the learned trial court’s analysis. There is no doubt

that some acts which are intended to cause serious bodily injury fall short of

an intent to kill.    However, the trial court did not grant the judgment of

acquittal on the basis that the evidence was insufficient to find, as a matter of

law, that Appellant’s actions could establish an intent to inflict serious bodily

injury on an unknown person, yet somehow those some acts could not

establish the intent to kill that same person.7 Rather, the trial court explicitly

stated that the Commonwealth failed to produce sufficient evidence that there

was any victim as a matter of fact.

                                               B

                                  Presence of a crowd

       Appellant claims that the trial court’s ruling is definitive on this point,

writing:

       Here, there was no person or persons present to whom specific
       intent could apply. The trial court even believed the block was
____________________________________________


7 We do not discern any difference between an intent to kill and an intent to
inflict serious bodily injury under these facts.

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      empty. How its conclusion transformed from "empty" to "crowded"
      when the only change was Palmer's challenge to the conviction is
      confusing at best. It is also unsupported by the record.
      Speculation about intent cannot suffice to establish guilt. The
      conviction for aggravated assault on a John or Jane Doe is
      insufficient.

Appellant’s brief at 21.

      That argument claims that the trial court’s ruling requires this Court to

accept that Appellant was shooting at an empty street as a matter of fact to

which we apply our conclusions of law. “Here, the Commonwealth did not

establish the presence of a person nor that Appellant knew or incorrectly

believed that someone was the target of his assault.” Id. at 12.

      We disagree, as that argument misapplies our standard of review. As

the Commonwealth observes, the trial judge was not the finder of fact. We

view the relevant inquiry as encompassing three separate but related

questions: Could the jury find that: (1) A group of people was present; (2)

Appellant fired into that group; and (3) Appellant fired into the group with the

specific intent to inflict serious bodily injury?

      Assessed in the light most favorable to the Commonwealth as verdict

winner, the facts establish that there was a group of people and that Appellant

shot in its direction. Appellant fired ten bullets towards the intersection of

17th Street, which runs north to south, and Susquehanna Avenue, which runs

east to west. At the time he fired those bullets, Ms. Kelsey, who was driving

two friends in her vehicle, turned left at the intersection of Susquehanna and

17th Street. Her vehicle was followed by two other cars containing more of

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her friends. Approximately five seconds after making a turn onto 17th Street,

she heard gunshots. N.T., 8/16/16, at 49.          She heard the gunshots from

behind her, and felt pain in her back shortly thereafter. These facts constitute

sufficient circumstantial evidence that numerous people were present and that

Appellant fired in their direction.

                                             C

            Firing into that group sufficiently establishes the requisite intent

      Since we have determined that the jury could find that Appellant fired

into a group of people, the remaining question is whether the jury could

conclude that Appellant did so with the specific intent to cause serious bodily

injury.     We discuss the following precedents discussing closely-related

circumstances:       Commonwealth v. Lopez, 654 A.2d 1150 (Pa.Super.

1995); Commonwealth v. Fierst, 620 A.2d 1196 (Pa.Super. 1993); and

Commonwealth v. Jackson, 955 A.2d 441 (Pa.Super. 2008). None is on

point; however, we find that elements of these cases apply to the facts herein.

          In Lopez, the defendant fired shots into the residence of his ex-

girlfriend, which, unbeknownst to him, was unoccupied at the time. Other

evidence indicated that Lopez wished to kill her.        We determined that the

Commonwealth established prima facie evidence of attempted aggravated

assault. Lopez establishes that impossibility is not a defense. “[A] person

who discharges a weapon into an empty residence can commit an aggravated

assault if he possesses the requisite intent to cause serious bodily injury . . .


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even though it is impossible for that person to actually cause such injury

because of the absence of a person inside[.]” Id. at 1152. Herein, unlike

Lopez, there is no evidence that Appellant hoped or believed that a person,

let alone any particular person, was on the street.

      In Fierst, the appellant intentionally drove into an oncoming vehicle.

The case establishes that the harm need not be directed at a specific person.

Fierst is distinguishable on the grounds that Fierst knew that there was a

person inside the vehicle, even if he did not know the identities of the

particular occupants.

      Finally, in Jackson, this Court applied Thompson, supra.        Therein,

three police officers were investigating a shooting that occurred earlier that

day. The victim of that shooting, Charles Wesley, was walking nearby. Five

men, including Jackson, approached Wesley and commenced shooting. The

three officers plus four other bystanders took cover. We concluded that the

evidence was insufficient to sustain seven aggravated assault convictions for

those seven persons.

      In his second issue, Appellant questions the sufficiency of the
      evidence to sustain his convictions for the aggravated assaults of
      Detective Waring, Officer Hood, Officer Allen, Sharee Norton,
      Sharron Norton, Shanya Wesley, and Gene Palmer. While
      Appellant admits that he intended to shoot Wesley, Appellant
      contends that these other persons were simply in the way.
      Appellant argues that the Commonwealth failed to establish that
      he had the specific intent to cause serious bodily injury to any of
      these persons, and thus, the requisite intent for his aggravated
      assault convictions is lacking.

            ....

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      [T]he evidence shows that Detective Waring, Officer Hood, Officer
      Allen, Sharee Norton, Sharron Norton, Shanya Wesley, and Gene
      Palmer were near Appellant's intended victim. The evidence also
      shows that Appellant fired a deadly weapon toward them. There
      is, however, no other evidence, in the form of circumstances,
      actions or words, occurring before, during, or after the shooting,
      that tends to demonstrate that Appellant specifically intended to
      inflict injury upon these particular persons. Therefore, the only
      circumstance in the record from which it may be inferred that
      Appellant had the intent to cause these persons serious bodily
      injury was his firing a deadly weapon in their direction. Based on
      the totality of the circumstances, we conclude that the evidence
      was insufficient to establish beyond a reasonable doubt that
      Appellant harbored the specific intent to cause serious bodily
      injury with a deadly weapon to any of these persons.

Jackson, supra at 445-48.

      We   nevertheless    upheld    the   convictions   based     on   attempted

aggravated assault, relying on Thompson.         “It is an established fact that

Appellant specifically intended to cause serious bodily injury to Wesley with a

deadly weapon. Under the doctrine, Appellant's intent in this regard is

transferred to [the others].” Id. at 450. This case differs from Jackson in

that there was an actual victim therein at whom the shots were directed.

Additionally, in that case, the other victims were identifiable.

      There is 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. The 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. See Commonwealth v. Matthew,

909 A.2d 1254 (Pa. 2006) (applying totality of the circumstances to determine

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if actions constituted aggravated assault). The most significant circumstantial

evidence in this regard is the fact that Appellant fired ten bullets.

       Additionally, Lopez establishes that the focus is on what Appellant

sought to do, as neither legal impossibility nor factual impossibility are

defenses.     While Lopez is readily distinguishable in that the evidence

established that Lopez clearly sought to kill a particular person, the focus must

be on what Appellant failed to do as opposed to what he did do. We find that

the jury could infer that Appellant hoped to or believed that he hit someone

in that crowd with one or more bullets. Fierst. It is difficult to accept that

this behavior was designed to do anything other than kill or inflict serious

bodily injury, and the jury was permitted to attach significance to the natural

and probable outcome of that behavior when assessing intent.8                   See

____________________________________________


8A number of our cases have discussed similar circumstances in analyzing
whether behavior was sufficiently reckless for purposes of establishing the
completed crime of aggravated assault:

       [F]or the degree of recklessness contained in the aggravated
       assault statute to occur, the offensive act must be performed
       under circumstances which almost assure that injury or death will
       ensue. The recklessness must, therefore, be such that life
       threatening injury is essentially certain to occur. This state of mind
       is, accordingly, equivalent to that which seeks to cause injury.
       Examples of such behavior make the distinction clear.
       In Commonwealth v. Daniels, 467 Pa. 35, 354 A.2d 538
       (1976), appellant       had fired a         gun into       a crowd;
       in Commonwealth v. Laing, 310 Pa.Super. 105, 456 A.2d 204
       (1983), appellant drove his car into a crowd, after having aimed
       it at an individual; in Scofield, the appellant drove at a
       pedestrian. See also, Commonwealth v. Hlatky, 426 Pa.Super.



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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.”).

                                               D

                                     Analogous authority

       Finally, we note that a number of States have adopted a “kill zone”

theory.    Briefly stated, the kill zone theory addresses scenarios such as

Thompson and Jackson wherein an assailant specifically intends to kill a

particular person, but in so doing exposes other, unintended targets to the

same risk of death. That theory describes the intent as concurrent instead of

transferred:

       California cases that have affirmed convictions requiring the intent
       to kill persons other than the primary target can be considered
       “kill zone” cases even though they do not employ that term.
       In People v. Vang (2001) 87 Cal.App.4th 554, 563–565, 104
       Cal.Rptr.2d 704, for example, the defendants shot at two occupied
       houses. The Court of Appeal affirmed attempted murder charges
       as to everyone in both houses—11 counts—even though the
____________________________________________


       66, 626 A.2d 575 (1993); Commonwealth v. Rohach, 344
       Pa.Super. 229, 496 A.2d 768 (1985). In each of these instances,
       the defendant could reasonably anticipate that serious bodily
       injury or death would be the likely and logical consequence of his
       actions. In each case, the consequence was ignored.

Commonwealth v. O'Hanlon, 653 A.2d 616, 618 (Pa. 1995). As discussed
at length supra, the aggravated assault statute is disjunctive. We do not
interpret the cases describing recklessness as applied to completed crimes of
aggravated assault to foreclose the possibility that some behavior is so
manifestly reckless that a jury could determine the behavior was specifically
intended to commit serious bodily injury when examining the inchoate crime
of attempted aggravated assault.

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       defendants may have targeted only one person at each house.
       “The jury drew a reasonable inference, in light of the placement
       of the shots, the number of shots, and the use of high-powered,
       wall-piercing weapons, that defendants harbored a specific intent
       to kill every living being within the residences they shot up.... The
       fact they could not see all of their victims did not somehow negate
       their express malice or intent to kill as to those victims who were
       present and in harm's way, but fortuitously were not killed.”

       This case permits—virtually compels—a similar inference. Even if
       the jury found that defendant primarily wanted to kill Wilson
       rather than Wilson's passengers, it could reasonably also have
       found a concurrent intent to kill those passengers when defendant
       and his cohort fired a flurry of bullets at the fleeing car and thereby
       created a kill zone. Such a finding fully supports attempted murder
       convictions as to the passengers.

People v. Bland, 48 P.3d 1107, 1118–19 (Ca. 2002) (footnote and some

citations omitted, emphasis in original).

       The “kill zone” theory thus rejects Thompson and the notion that

transferred intent applies to inchoate crimes.9 But see State v. Dean, 54


____________________________________________


9 In Jackson, we urged our Supreme Court to revisit the application of
transferred intent to specific intent crimes. We add our voice to that request.
As discussed at length supra, the application of transferred intent to inchoate
crimes is confusing. Herein, the Commonwealth charged Appellant with
specifically intending to kill Ms. Kelsey, while admitting that Appellant did not
specifically intend to kill Ms. Kelsey.

In this respect, we believe that the kill zone theory may represent a more
logical approach to situations such as Thompson and Jackson. Relatedly,
transferred intent can still supply the necessary intent for a completed crime,
i.e., where the unintended target actually dies, and that remains true even
when the actual target is murdered. See Henry v. State, 19 A.3d 944, 951
(Md. 2011) (rejecting notion that transferred intent is “used up” after the
intended target is killed; “We agree with the Supreme Courts of California,
Connecticut, and New Jersey, as well as with the above cited federal courts,
that the doctrine of transferred intent is fully applicable where both the
intended victim and an unintended victim are killed.”)

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N.E.3d 80 (Oh. 2015) (rejecting Bland; “We hold that the doctrine of

transferred intent was properly applied to the attempted-murder charges.”).

Under the logic of the kill zone theory, the prosecution may only charge the

inchoate crime of attempted murder for each targeted victim:

     One difference regarding intent to kill does exist between murder
     and attempted murder. A person who intends to kill can be guilty
     of the murder of each person actually killed, even if the person
     intended to kill only one. The same is not necessarily true
     regarding attempted murder. Rather, guilt of attempted murder
     must be judged separately as to each alleged victim. But this is
     true whether the alleged victim was particularly targeted or
     randomly chosen. As the district attorney aptly summarizes in this
     case, “A defendant who intends to kill one person will be
     liable for multiple counts of murder where multiple victims
     die, but only one count of attempted murder where no one
     dies.” But when no one dies that person will be guilty of
     attempted murder even if he or she intended to kill a random
     person rather than a specific one.

People v. Stone, 205 P.3d 272, 278–79 (Ca. 2009) (emphasis added,

quotation marks and citations omitted).

     In Stone, the Supreme Court of California addressed a factual situation

similar to the circumstances herein, in that the prosecutor, like the

Commonwealth here, informed the jury that the person Stone intended to kill

was unknown. “[I]n his argument to the jury, the district attorney agreed he

had not proven that defendant intended specifically to kill [the victim named

in the charges] rather than someone in the group of 10 persons.” Id. at 277.

(emphasis in original). Stone noted that the kill zone theory would thus not

apply since that theory requires that there be a particular target.   Stone




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nevertheless concluded specific intent to kill could be found.     We find the

following discussion persuasive:

      Can a person who shoots into a group of people, intending to kill
      one of the group, but not knowing or caring which one, be
      convicted of attempted murder? Yes. The mental state required
      for attempted murder is the intent to kill a human being, not
      a particular human being.

                   ....

      Now that we consider the question, we conclude that a person who
      intends to kill can be guilty of attempted murder even if the person
      has no specific target in mind. An indiscriminate would-be killer is
      just as culpable as one who targets a specific person. One
      of Bland's kill zone examples involved a bomber who places a
      bomb on a commercial airplane intending to kill a primary target
      but ensuring the death of all passengers. We explained that the
      bomber could be convicted of the attempted murder of all the
      passengers. But a terrorist who simply wants to kill as many
      people as possible, and does not know or care who the victims will
      be, can be just as guilty of attempted murder.

            ....

      We explained in Bland that difficulties can arise when deciding
      whether a person can be convicted of the attempted murder of an
      untargeted person in addition to the murder or attempted murder
      of the target, and regarding how many attempted murder
      convictions are permissible. After all, the world contains many
      people a murderous assailant does not intend to kill. But this case
      does not involve such difficulties. Defendant was not charged with
      the attempted murder of all the world, or even everyone in the
      group at which he fired, but only of one attempted murder.
      Whatever difficulties exist in deciding how many attempted
      murders a would be indiscriminate killer has committed do not
      exist here.

Id. at 274; 278 (emphases in original; quotation marks and citations omitted).

      For the reasons set forth supra, we find that the jury could determine

that Appellant was guilty of one attempted aggravated assault.        Whatever

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difficulties there may be in deciding exactly how many attempt crimes may lie

in these scenarios, that problem does not exist here.10 It does not matter

whether Appellant’s intent was generalized or specific with respect to his

target. It matters only that he had a specific intent to inflict serious bodily

injury upon someone. The jury could determine that he did, and Appellant’s

first claim fails.

                                               IV

       We now address Appellant’s second claim, which concerns the trial

court’s overruling his objections to testimony by Detective Wearing during the

presentation of video surveillance testimony. Appellant urges this Court to

find that “the trial court allowed a detective to offer lay opinion evidence in

violation of Pa.R.E. 701 regarding the identity of individuals seen in a video

because it was not based upon his own perceptions, not helpful to the jury,

and prejudicially altered the independent determination by the jury.”

Appellant’s brief at 22.

       The admission of evidence is committed to the sound discretion of
       the trial court, and a trial court’s ruling regarding the admission
       of evidence will not be disturbed on appeal unless that ruling
       reflects manifest unreasonableness, or partiality, prejudice, bias,
       or ill-will, or such lack of support to be clearly
       erroneous.




____________________________________________


10For example, under Thompson the facts would presumably support, at
minimum, attempt charges for the other two passengers in Ms. Kelsey’s
vehicle, plus the occupants of the vehicles following Ms. Kelsey.

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Commonwealth v. Akrie, 159 A.3d 982, 986–87 (Pa.Super. 2017) (citation

omitted).

        Here, Appellant claims that, during trial, Detective Wearing “narrated

the video” recovered from the deli and “opine[d] on the similarity and identity

of the person seen in each video clip.”               Appellant’s brief at 22.   Appellant

maintains that, instead, “[t]he correct method would have been to play the

portion of the video showing the shooting, and have the detective describe

the time, date, locations, and the directions of movements of the person seen

in the video. . . . That is not what the Commonwealth did.” Id. at 23. The

Commonwealth answers that “Detective Wearing’s testimony about the video

. . . was not opinion evidence, but merely explained the basis for [Appellant]’s

arrest, the DNA testing of the drugs, and [Appellant]’s question about what

would     the   consequences       be   if     the    shooting   were   an   accident.”11

Commonwealth’s brief at 16.          The trial court responded to the claim in its

opinion as follows:

        Detective Wearing testified that he physically investigated the
        shooting scene and surrounding neighborhood, and obtained
        video footage of the area from the time of the shooting. While the
        jury viewed the videos, Detective Wearing placed the footage in
        context by describing the intersection that was videotaped, the
        camera locations, the location of Ms. Kelsey when she was shot,
        the location of the fired cartridge casings, the location of the
        narcotics, and the location of the “suspect” alleged to be
        Appellant. Defective Wearing further testified that immediately
        after viewing the videos on the day following the shooting, he saw
____________________________________________


11Drugs were found near the location of the bullet casings. Appellant’s DNA
was discovered on the drugs.

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     Appellant in the shooting area and determined he was the shooter
     shown in the videotapes.

     Overall, Detective Wearing’s testimony was relevant to the jury’s
     understanding of the timing of events shown on the videos, the
     location of the shooter when he fired the gun, the location of the
     victim (Ms. Kelsey) in relation to the shooter, and the location of
     Appellant’s DNA in relation to where the gun was fired. See e.g.
     [Commonwealth v. Cole], 135 A.3d 191, 196 [(Pa. Super.
     2016)] (finding that a detective’s video narration “was relevant to
     the jury’s understanding of the timing, the actors, and the location
     of events depicted in the video.”). Detective Wearing’s testimony
     also was relevant as an explanation to the jury of how and why
     the detectives developed Appellant as the prime suspect on the
     day after the shooting; why they compared his DNA to the DNA
     on the narcotics baggie recovered near the cartridge casings; and
     why they interviewed Appellant about the shooting and the videos.

     “Once evidence is found to be relevant, it will be inadmissible only
     if its probative value is substantially outweighed by the danger of
     unfair prejudice or confusion.” Commonwealth v. McFadden,
     [156 A.3d 299] (Pa. Super. []) (citations omitted here)[, appeal
     denied, 170 A.3d 993 (Pa. 2017)]. “Unfair prejudice is a tendency
     to suggest a decision on an improper basis or to divert the jury’s
     attention away from its duty of weighing the evidence impartially.”
     Id. (citing Pa. R.E. 403). “The trial court will be reversed only if
     an error in the admission of evidence contributed to the verdict.”
     Id.

     The core dispute in this case was not whether Appellant ever
     appeared on the video footage from the evening of the shooting.
     [Detective] Rocks testified that although Appellant denied he was
     shown on video shooting a gun, Appellant admitted the videos
     showed him earlier that evening in the shooting area. DNA
     evidence also placed Appellant at the location of the fired cartridge
     casings, and the videos themselves convincingly demonstrate that
     Appellant was captured on camera in several of the videos’
     timeframes.

     The central dispute was whether it was Appellant, wearing a dark-
     colored jacket, who appeared on video around 11:00 p.m. when
     the shooting occurred. [Detective] Rocks testified that Appellant
     denied he was the “suspect” who allegedly shot Ms. Kelsey in the
     11:00 p.m. portion of the videos, and Appellant’s trial counsel

                                    - 26 -
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      effectively cross-examined Detective Wearing regarding his
      testimony that the videos showed the “same suspect” shooting a
      gun. During closing arguments, defense counsel again contested
      that the person captured on video around 11:00 p.m., allegedly
      shooting a gun, was Appellant.

      When viewing the testimony in its overall context, it is clear that
      the jury knew exactly what issue it was charged with determining;
      in fact the very first question from the jury was a request to view
      the video again. Detective Wearing did not induce a verdict on any
      improper basis nor did his testimony “divert the jury’s attention
      away from its duty of weighing the evidence impartially.” Pa. R.E.
      403 (comment). Rather, the issue of the shooter’s identity was
      fairly placed before the jury for its impartial determination[.]

Trial Court Opinion, 4/10/17, at 11-14 (citations to the record omitted).

      We agree with the trial court’s assessment of Detective Wearing’s

testimony and therefore must decide whether it is properly classified as

opinion testimony. “Concededly, the division whether testimony constitutes

fact or opinion may be difficult, for ‘there is no litmus test for fact versus

opinion.” Bucchianeri v. Equitable Gas Co., 491 A.2d 835, 839 (Pa.Super.

1985) (citations and internal quotation marks omitted). “Fact testimony may

include opinion or inferences so long as those opinions or inferences are

rationally based on the witness’s perceptions and helpful to a clear

understanding of his or her testimony.” Crespo v. Hughes, 167 A.3d 168,

182 (Pa.Super. 2017).

      Herein, Detective Wearing merely testified that he identified the shooter

by finding and watching the video surveillance of the shooting, then examining

earlier portions of the video for other instances where the suspect appeared.

As the Commonwealth asserted, Detective Wearing’s testimony about the

                                    - 27 -
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surveillance videos explained the basis for Appellant’s arrest, the DNA testing

of the drugs, and Appellant’s question about what the consequences would be

if the shooting were accidental. Thus, Detective Wearing’s testimony about

the videos was based upon his perception of them, placed his subsequent

actions in context, and was helpful in allowing the jury to reach a clear

understanding of all his testimony. Crespo, supra at 182. Hence, his fact

testimony permissibly included non-expert opinions and was properly

admitted.

      Furthermore, we note that the videos had little relevance if Appellant

was not the person appearing at the times highlighted by the Commonwealth.

The jury was obviously aware that the Commonwealth believed that the

person was Appellant, and it was the jury’s duty to determine if the

Commonwealth proved that fact beyond a reasonable doubt. The jury itself

watched the videos, and was free to reach a different conclusion if it disagreed

with Detective Wearing’s conclusion that it was Appellant depicted on the

video at specific moments in the footage.      We therefore find no abuse of

discretion.

      Judgment of sentence affirmed.

      Judge Nichols joins the opinion.

      Judge Ransom files a concurring dissenting opinion.




                                     - 28 -
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




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