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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
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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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