Com. v. Black, J.

Superior Court of Pennsylvania

Com. v. Black, J.

DecidedDecember 30, 2021

Docket349 EDA 2021

StatusUnpublished

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Bluebook

Com. v. Black, J., (Pa. Ct. App. 2021).

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Opinion

J-S29015-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JONATHAN BLACK : : Appellant : No. 349 EDA 2021

Appeal from the Judgment of Sentence Entered December 12, 2019 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0004447-2018

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 30, 2021

During a botched illicit commercial interaction, Appellant Jonathan Black

shot at a car full of people while shouting “I’m going to fucking kill this whole

car, like this whole fucking car is going to die.”1 One of the shots shattered

the car’s window and struck passenger Derek Cooper in the face, causing

serious injuries. Appellant challenges the sufficiency of the evidence

supporting his attempted homicide conviction and alleges an abuse of

discretion in the discretionary aspects of his sentence, an aggregate of fifteen

to thirty years of imprisonment.2 We affirm.

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* Former Justice specially assigned to the Superior Court.

1 Trial Ct. Op., 4/23/21, at 7.

2 Id. at 2, Order of Sentence, 12/12/19; Appellant’s Brief at 3-4. J-S29015-21

This matter took a tortured turn, procedurally, and thus we recount only

the relevant period. On October 8, 2020, after multiple motions had been filed,

the trial court reinstated nunc pro tunc Appellant’s ability to file post-sentence

motions and a direct appeal.3 On November 5, Appellant filed post-sentence

motions. On January 11, 2021, the trial court denied those motions. On

February 4, Appellant filed the present timely appeal.

Appellant frames the issues presented as follows:

Was the evidence insufficient as a matter of law to convict Appellant of criminal attempt[ed] homicide where the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] had the specific intent to kill?

Did the [trial] court abuse its discretion by imposing an unreasonable and manifestly excessive sentence that failed to adhere to the general sentencing principles set forth in 42 Pa.C.S.[] § 9721(b), in that the [trial court] imposed a sentence that exceeded what was necessary to protect the public, the complainants, and the community, failed to fully consider [Appellant’s] background and character, and imposed a sentence that was well beyond what was necessary to foster the rehabilitative needs of Appellant, and failed to state adequate reasons for imposing such a lengthy sentence on the record?

Appellant’s Brief at 3-4 (questions reordered).

We review a challenge to the sufficiency of the evidence to determine

whether, when viewed in a light most favorable to the verdict winner, the

3 We note that prior to nunc pro tunc reinstatement, a petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 was filed. Because that filing occurred prior to nunc pro tunc reinstatement of Appellant’s direct appellate rights, the PCRA petition is a legal nullity that will not prevent Appellant from pursuing an initial, timely-filed PCRA petition in the future, should he choose to do so.

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evidence at trial and all reasonable inferences therefrom sufficiently establish

each element of the crimes charged beyond a reasonable doubt. See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003).

Appellant’s only challenge to his conviction raises the issue of whether

the evidence at trial was sufficient to establish specific intent. “The

circumstances of this case do not evidence [Appellant] firing his weapon with

the specific intent to kill; they evince a man who acted with reckless disregard

for the value of human life.” Appellant’s Brief, at 9-10.

“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. Additionally, one “is guilty of

criminal homicide if he intentionally, knowingly, recklessly, or negligently

causes the death of another human being.” 18 Pa.C.S. § 2501. Intentional

killing, for purposes of Pennsylvania law, includes “any . . . kind of willful,

deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). Pennsylvania has

long recognized that “specific intent to kill may be inferred from the use of a

deadly force upon a vital part of the human body.” Commonwealth v.

Meredith, 416 A.2d 481, 485 (Pa. 1980); see also Commonwealth v.

Shank, 883 A.2d 658, 664 (Pa. Super. 2005). Here, Appellant loosed multiple

gunshots, striking one of his victims in the face. This evidence, standing alone,

was sufficient to establish a specific intent to kill.

-3- J-S29015-21

However, though this inference sufficiently supports the conviction, we

need not rely only on this inference. Appellant’s own statement at the time of

the shooting, credited by the factfinder, is also sufficient on its own to support

a finding of specific intent to kill. One who says “I’m going to fucking kill this

whole car, like this whole fucking car is going to die” may be presumed to

intend to do exactly that, especially when, as here, his behavior matches his

words. This claim must fail.

Second and finally, Appellant challenges the discretionary aspects of the

sentence imposed, an aggregate sentence of fifteen to thirty years of

imprisonment. “A challenge to the discretionary aspects of a sentence must

be considered a petition for permission to appeal, as the right to pursue such

a claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004). When challenging the discretionary aspects of the sentence

imposed, an appellant must present a substantial question as to the

inappropriateness of the sentence. See Commonwealth v. Tirado, 870 A.2d

362, 365 (Pa. Super. 2005). “Two requirements must be met before we will

review this challenge on its merits.” McAfee, 849 A.2d at 274. “First, an

appellant must set forth in his brief a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary aspects of a

sentence.” Id. “Second, the appellant must show that there is a substantial

question that the sentence imposed is not appropriate under the Sentencing

Code.” Id. That is, “the sentence violates either a specific provision of the

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sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process.” Tirado, 870 A.2d at

365.

Appellant acknowledges, as he must, that he “must establish that the

sentence imposed is inappropriate under the Sentencing Code and raises a

substantial question.” Appellant’s Brief at 10 (citing Commonwealth v.

Kenner, 784 A.2d 808, 810-11 (Pa. Super. 2001); 42 Pa.C.S. § 9781(b);

Pa.R.A.P. 2119(f)). His brief, which includes a discrete statement of reasons

per Rule 2119(f), is technically compliant. See Appellant’s Brief at 10-13. He

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