Com. v. Nascimento, A.

Opinion

J-S20034-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AVERY MICHAEL NASCIMENTO : : Appellant : No. 2569 EDA 2022

Appeal from the Judgment of Sentence Entered September 20, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0001096-2022

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JULY 31, 2023

Appellant, Avery Michael Nascimento, appeals from the judgment of

sentence of 10 to 20 years’ incarceration imposed on him after he was

convicted by a jury of attempted murder with serious bodily injury and

aggravated assault.1 For the reasons set forth below, we affirm.

In the early morning hours of January 23, 2022, Appellant shot and

injured his girlfriend (Victim) and fatally shot her former boyfriend (Decedent).

Appellant was charged with first-degree murder and third-degree murder for

the shooting of Decedent, attempted murder with serious bodily injury and

aggravated assault for shooting Victim, and possession of an instrument of

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 901(a), 2502(a), and 1102(c), and 2702(a)(1), respectively. J-S20034-23

crime. These charges were tried to a jury from July 11 to July 13, 2022. At

trial, nine witnesses testified for the Commonwealth: Victim, six police officers

and detectives who investigated the case, and two medical witnesses.

Appellant testified in his own defense and two character witnesses testified on

his behalf.

Victim testified that Appellant was at her house on the night of January

22 to 23, 2022 and that Appellant began pushing her and throwing her into

things when she would not let him look at her cell phone. N.T. Trial, 7/11/22,

at 68-72. She testified that later in this fight, Appellant grabbed her by the

hair, hit her in the head with a gun, choked her, and said to her, “Tonight’s

the night you’re going to die, bitch.” Id. at 74-75, 77-79. Victim testified

Appellant took the phone from her, that Decedent called her, that Appellant

picked up the call and argued with Decedent, and that after Appellant hung

up, Decedent came to her house. Id. at 80-81, 83-88. She testified that

Appellant and Decedent sat down and talked at first, but later began hitting

and punching each other. Id. at 88-97. Victim testified that Decedent wound

up on top of Appellant and that Appellant pulled out his gun and shot Decedent

twice while they were wrestling each other on the floor. Id. at 97-103, 161-

65. Victim testified that she ran out of the house to the house next door and

that while she was on the neighbor’s porch pounding on the door, Appellant

came up to her with the gun and shot her in the hand. Id. at 102-05. She

testified that she said to him, “Avery, stop” and “Why are you doing this?” and

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that he responded “Shut up, bitch” and kept coming toward her and pointing

the gun at her. Id. at 105. Victim testified that she attempted to hide under

furniture on the porch, that Appellant tried to move the furniture away to get

a better view of her and shot her again in her right thigh, and that this bullet

lodged in her thigh and is still in her thigh. Id. at 105-06, 113. Victim testified

that after Appellant shot her the second time, she played dead and that

Appellant shot her a third time, grazing her buttock, and left. Id. at 105-08,

114.

One of the detectives who investigated the scene of the shootings

testified that two fired bullets were found on the neighbor’s porch under the

porch furniture, one of which had human tissue and bone on it and the other

of which had human tissue on it. N.T. Trial, 7/12/22, at 38-42, 49-50. He

testified that live rounds were found on the sidewalk in front of the neighbor’s

porch where a shooter firing at the porch would have been standing and that

this indicated that the gun had jammed and the shooter had to eject those

live rounds in order to be able to shoot again. Id. at 16, 42-44, 51-52;

Commonwealth Ex. 64. A firearms expert also testified that the presence of

live rounds among fired cartridge casings shows that the firearm had

malfunctioned and the shooter had ejected live rounds to keep shooting. N.T.

Trial, 7/12/22, at 136, 139.

The physician who treated Victim’s injuries testified that Victim had

gunshot wounds to her right thigh and right hand and abrasions on her

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buttocks. N.T. Trial, 7/12/22, at 68-72, 85-86. This physician testified that

the hand wound was a significant injury that required hospitalization and

treatment by a hand surgeon and that a gunshot to the thigh can be life

threatening, but that Victim’s thigh wound was not because the bullet did not

hit any major blood vessels. Id. at 70-76, 83. The pathologist who performed

the autopsy on Decedent testified that Decedent had three gunshot wounds,

one from a bullet that entered the left side of the chest, went through the left

lung and heart, exited from the front of the chest and lodged in the right arm,

one from a bullet that entered the front pelvic area and lodged in pelvic bone,

and one from a bullet that entered the back of the neck and exited on the left

side of the neck. Id. at 153, 155-61. The pathologist testified that the chest

wound had darkened area around the entry point that showed that the gun

was against Decedent’s body when it was fired, but that he found no

gunpowder or stippling on the other two wounds that would be present if those

shot were fired within three feet of Decedent. Id. at 157-58, 161-62, 164-

65. The pathologist testified that each of the three gunshot wounds was

sufficient by itself to cause Decedent’s death. Id. at 166, 168-73.

Appellant testified that on the night of January 22 to 23, 2022, he and

Victim argued about her phone, that Victim slapped and kicked him, and that

he pushed her in response. N.T. Trial, 7/12/22, at 263-65, 267-75. Appellant

denied that he choked Victim when they were arguing and fighting and denied

that he grabbed her by the hair or hit her with his gun. Id. at 280-81, 287-

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88. He testified that Decedent called Victim’s phone while he and Victim were

arguing, that he picked up the call, and that Decedent told him to “stop playing

with” him and that Victim was Decedent’s “bitch.” Id. at 277-78. Appellant

testified that after he hung up the phone, Decedent arrived at the house and

pounded on the door. Id. at 278, 281-82. He testified that Victim let

Decedent in, that he and Decedent argued, and that Decedent, who smelled

of alcohol, became angry and started hitting him. Id. at 282-92. Appellant

testified that Decedent knocked him down and landed on top of him, that

Decedent tried to get Appellant’s gun and that two shots went off during the

struggle for the gun, the second of which hit Victim in the hand. Id. at 291-

93. Appellant testified that Decedent continued attacking him and that he

thought Decedent would kill him and shot Decedent in the pelvis. Id. at 293-

94. He testified that he tried to get away, but Decedent was still fighting him

and trying to get the gun, and that he accidently shot Decedent again while

Decedent was grabbing him. Id. at 294, 315, 320-21 335-36. Appellant

testified that he got away after Decedent rolled on his side vomiting, that he

ran out of the house to the neighbor’s house, and that when he saw Victim

jump up from underneath furniture on the neighbor’s porch, he shot at her

once and ran away. Id. at 294-95, 323.

On July 13, 2022, the jury convicted Appellant of attempted murder with

serious bodily injury and aggravated assault and acquitted Appellant of first-

degree murder, third-degree murder, voluntary manslaughter (on which the

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jury was also charged), and possession of an instrument of crime. N.T. Trial,

7/13/22, at 141-43. On September 20, 2022, the trial court sentenced

Appellant to 10 to 20 years’ incarceration for attempted murder and imposed

no sentence for the aggravated assault conviction on the grounds that that

charge merged with the attempted murder conviction. N.T. Sentencing at 12,

45; Disposition-Sentencing Order at 2. This timely appeal followed.

Appellant raises the following single issue in this appeal:

Whether there was sufficient evidence presented at trial to sustain Appellant’s conviction for attempted first-degree murder where he shot the victim in non-vital parts of her body from a very close range and the circumstances surrounding the shooting do not allow for an inference that he had the requisite intent to kill?

Appellant’s Brief at 4. Our standard of review in a challenge to the sufficiency

of the evidence is well-settled:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

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Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (quoting

Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011)) (brackets

omitted).

A conviction for attempted murder requires the Commonwealth to prove

beyond a reasonable doubt two elements: 1) that the defendant had the

specific intent to kill and 2) that he took a substantial step towards that goal.

Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008);

Commonwealth v. Ligon, 206 A.3d 515, 519 (Pa. Super. 2019);

Commonwealth v. Predmore, 199 A.3d 925, 929 (Pa. Super. 2018) (en

banc). The only element of the offense of attempted murder that Appellant

argues that the evidence was insufficient to prove is the mens rea of specific

intent to kill. Specific intent to kill may be proven from circumstantial

evidence alone. Commonwealth v. Cannavo, 199 A.3d 1282, 1292 (Pa.

Super. 2018); Tucker, 143 A.3d at 964; Commonwealth v. Jackson, 955

A.2d 441, 444 (Pa. Super. 2008).

Here, the evidence showed that Appellant hunted Victim down, walked

up to her, and fired his gun directly at her three times from only a few feet

away, hitting her in the hand, thigh, and buttock. N.T. Trial, 7/11/22, at 104-

08, 110. That evidence was sufficient to satisfy the Commonwealth’s burden

of proof. Aiming a gun directly at a person and firing multiple shots at close

range is sufficient to prove specific intent to kill. Commonwealth v. Holt,

273 A.3d 514, 529-30 (Pa. 2022). Appellant’s argument that this evidence

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was insufficient because his bullets did not hit a vital part of Victim’s body is

without merit. The fact that Appellant did not succeed in hitting Victim in the

chest or head does not make the evidence that he pointed a gun directly at

Victim and fired at her three times insufficient to show intent to kill.

Commonwealth v. Jackson, 392 A.2d 1366, 1368-69 (Pa. 1978) (specific

intent to kill shown where defendant fired a gun at victim in the dark hitting

him in the shoulder); Tucker, 143 A.3d at 964-65 (evidence of specific intent

to kill sufficient where defendant fired three shots at victim and only shot that

hit victim struck him in the thigh); Commonwealth v. Wyche, 467 A.2d 636,

637 (Pa. Super. 1983) (specific intent to kill shown where defendant fired a

gun at the victim multiple times, hitting him in the thigh, hand, and buttock).

Evidence that the defendant shot the victim in the lower legs is

insufficient by itself to prove specific intent to kill where there was no

obstruction or distance that could have adversely affected the defendant’s

aim. Predmore, 199 A.3d at 931-34. That situation, however, is not present

here for two reasons. First, the evidence at trial showed that Appellant’s

ability to shoot Victim was obstructed when he fired the second and third shots

because Victim attempted to protect herself by getting under porch furniture.

N.T. Trial, 7/11/22, at 105-06. Second, unlike the lower legs, the places

where Victim was shot, the hand, thigh, and buttock, are not far from vital

areas of her body. Commonwealth v. Padgett, 348 A.2d 87, 88 (Pa. 1975)

(shot to victim’s arm was “in the general area in which vital organs are

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located” and by itself was sufficient to prove specific intent to kill); Wyche,

467 A.2d at 637.

Moreover, there was other evidence in this case that supported an

inference that Appellant acted with specific intent to kill Victim. Appellant

made efforts to shoot Victim beyond merely firing the gun in her direction.

Victim testified that when she asked Appellant to stop after he shot her in the

hand, he replied “Shut up, bitch” and kept coming toward her pointing the gun

at her and that when she hid under porch furniture, Appellant tried to move

the furniture out of the way to get a better shot at her. N.T. Trial, 7/11/22,

at 104-06. There was also evidence from the live rounds found at the scene,

that Appellant had to eject cartridges from the gun to continue shooting at

Victim. N.T. Trial, 7/12/22, at 16, 42-44, 51-52, 136, 139; Commonwealth

Ex. 64. In addition, Victim testified that Appellant did not leave the scene

until she played dead and that when she and Appellant were fighting earlier

that night, Appellant said “Tonight’s the night you’re going to die, bitch.” N.T.

Trial, 7/11/22, at 75, 105-08. Indeed, Appellant admitted that he felt

disrespected by Victim on the night that he shot her. N.T. Trial, 7/12/22, at

274-75, 302-05.

Because the evidence was sufficient to prove that Appellant acted with

specific intent to kill Victim when he shot her, the Commonwealth satisfied its

burden of proving the elements of attempted murder. Appellant’s sole issue

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in this appeal therefore fails. Accordingly, we affirm Appellant’s judgment of

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/31/2023

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