Commonwealth v. Predmore

199 A.3d 925

• Court: Superior Court of Pennsylvania
• Decided: November 27, 2018
• Docket: 238 EDA 2017
• Status: Published

Opinion

OPINION BY BENDER, P.J.E.:

The Commonwealth filed this interlocutory appeal from the trial court's order granting Appellee's, Steven Predmore, habeas corpus motion to dismiss a charge of attempted murder. The trial court ruled that the Commonwealth failed to present prima facie evidence of Appellee's specific intent to kill the victim. The Commonwealth argues that it demonstrated Appellee's specific intent to kill under the prima facie standard based solely on evidence that Appellee had taken a substantial step toward the commission of a first-degree murder. After careful review, we affirm.

The trial court summarized the pertinent factual and procedural history of this case as follows:

On December 12, 2015, at or about 12:45 a.m., Alex Marsicano was driving past his ex-girlfriend's residence when he noticed [Appellee]'s vehicle. Mr. Marsicano stopped near [Appellee]'s vehicle. As he was leaving the residence, [Appellee] appeared in the parking lot. A confrontation occurred between [Appellee] and Mr. Marsicano when Cheyenne Eberhart, Mr. Marsicano's ex-girlfriend, broke up the fight. [Appellee] then retrieved a gun from his vehicle. [Appellee] fired 3 shots, two shots struck the back of Mr. Marsicano's calves and the third shot missed. [Appellee] then left the scene in his vehicle. Mr. Marsicano contacted a friend who subsequently took him to the hospital. When interviewed by the police, [Appellee] indicated that he was acting in self-defense and that he just wanted to stop the beating.

On January 15, 2016, the Commonwealth filed a Criminal Information charging [Appellee] with Attempted Criminal Homicide, 18 Pa.C.S.[ ] § 901(a), (F1); Aggravated Assault, 18 Pa.C.S.[ ] § 2702(a)(4), (F2); Simple Assault, 18 Pa.C.S.[ ] § 2701(a)(2), (M2); and Recklessly Endangering Another Person, 18 Pa.C.S.[ ] § 2705, (M2).

Trial Court Opinion (TCO), 12/12/16, at 1-2 (citations omitted).

Appellee filed the at-issue habeas corpus motion on May 16, 2016. Following a hearing held on June 20, 2016, to address the matter, the court granted Appellee's habeas motion on December 12, 2016, thereby dismissing the attempted homicide charge.

The Commonwealth filed a timely notice of appeal on January 3, 2017, and certified its compliance with Pa.R.A.P. 311(d)

(" Commonwealth appeals in criminal cases.-- In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution."). The Commonwealth also filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on January 17, 2017. The trial court subsequently issued a Rule 1925(a) statement on February 7, 2017, indicating that it would rely upon its December 12, 2016 opinion that accompanied the order under review.

On October 4, 2017, a unanimous panel of this Court issued a memorandum decision affirming the trial court's order dismissing the attempted murder charge. The Commonwealth filed a timely application for reargument on October 13, 2017, and, on November 30, 2017, this Court issued an order granting reargument and withdrawing the panel's memorandum. The Commonwealth now presents the following question for our review:

Whether the trial court erred by dismissing count 1 of the criminal information charging attempt to commit criminal homicide after the charge had been bound over following a preliminary hearing and despite the Commonwealth['s] presenting evidence of record that the [Appellee] acted with a specific intent to kill when he retrieved a Ruger 9mm pistol from his vehicle, put a clip in the pistol, aimed and fired three shots at the retreating victim, striking the victim in the legs?

Commonwealth's Substituted Brief for En Banc Reargument (hereinafter "Commonwealth's Brief"), 12/14/17, at 5 (unnecessary capitalization omitted).

We review a decision to grant a pre-trial petition for a writ of habeas corpus by examining the evidence and reasonable inferences derived therefrom in a light most favorable to the Commonwealth. Commonwealth v. James , 863 A.2d 1179 , 1182 (Pa. Super. 2004) ( en banc ). In Commonwealth v. Karetny , 583 Pa. 514 , 880 A.2d 505 (2005), our Supreme Court found that this Court erred in applying an abuse of discretion standard in considering a pre-trial habeas matter to determine whether the Commonwealth had provided prima facie evidence. The Karetny Court opined, "the Commonwealth's prima facie case for a charged crime is a question of law as to which an appellate court's review is plenary." Id. at 513 , 880 A.2d 505 ; see also Commonwealth v. Huggins , 575 Pa. 395 , 836 A.2d 862 , 865 (2003) ("The question of the evidentiary sufficiency of the Commonwealth's prima facie case is one of law[.]"). The High Court in Karetny continued, "[i]ndeed, the trial court is afforded no discretion in ascertaining whether, as a matter of law and in light of the facts presented to it, the Commonwealth has carried its pre-trial, prima facie burden to make out the elements of a charged crime." Karetny , supra at 513, 880 A.2d 505 . Hence, we are not bound by the legal determinations of the trial court.

Commonwealth v. Dantzler , 135 A.3d 1109 , 1111-12 (Pa. Super. 2016).

A petition for writ of habeas corpus is the correct method for a defendant to test whether the Commonwealth has, before trial, established a prima facie case. Commonwealth v. Karlson , 449 Pa. Super. 378 , 674 A.2d 249 , 251 (1996). To demonstrate that a prima facie case exists, the Commonwealth must produce evidence of every material element of the charged offense(s) as well as the defendant's complicity therein. Commonwealth v. Fowlin , 450 Pa. Super. 489 , 676 A.2d 665 , 673 (1996). In an effort to meet its burden, the Commonwealth may utilize the evidence presented at the preliminary hearing and also may submit additional proof. Id.

Proof beyond a reasonable doubt is not required at the habeas stage, but the Commonwealth's evidence must be such that, if accepted as true, it would justify a trial court in submitting the case to a jury. Id. Additionally, in the course of deciding a habeas petition, a court must view the evidence and its reasonable inferences in the light most favorable to the Commonwealth. Id. Suspicion and conjecture, however, are unacceptable. Id.

Commonwealth v. Carroll , 936 A.2d 1148 , 1152 (Pa. Super. 2007) (abrogation on other grounds recognized in Dantzler , supra ).

We begin our analysis with a summary of the pertinent law concerning the crime of attempted murder. "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) (emphasis added). "Criminal attempt to murder is defined by reading the attempt statute, 18 Pa.C.S. § 901(a), in conjunction with the [first-degree] murder statute, 18 Pa.C.S. § 2502(a)." Commonwealth v. Anderson , 538 Pa. 574 , 650 A.2d 20 , 23 (1994). Thus, a "conviction for attempted murder requires the Commonwealth to prove beyond a reasonable doubt that the defendant had the specific intent to kill and took a substantial step towards that goal." Commonwealth v. Blakeney , 596 Pa. 510 , 946 A.2d 645 , 652 (2008). In sum, attempted murder is composed of two primary elements. The mens rea element of the offense is specific intent to kill, which is identical to the mens rea element of murder in the first degree. 1 The actus reus element of the offense is the commission of one or more acts which collectively constitute a substantial step toward the commission of a killing.

Instantly, the crux of the Commonwealth's argument is as follows:

Here, [Appellee] went to his vehicle and retrieved a pistol from the glove box of the vehicle and put a clip in the pistol, cocked it and then pointed it at Alexander Marsicano. [Appellee] then fired three shots at Alexander Marsicano as Alexander Marsicano was attempting to run away, striking him in both legs. Under the substantial step test, and focusing on the acts [Appellee] completed, not on the acts that remain for the actual commission of the crime, the trial court erred by concluding that the Commonwealth failed to establish a prima facie case for the charge of [a]ttempted [h]omicide. Based on the actions [Appellee] took, the fact finder could have reasonably found that [Appellee] took a substantial step toward the intentional[ ] killing of Alexander Marsicano.

Commonwealth's Brief at 16.

The trial court determined that the Commonwealth failed to establish a prima facie case for the mens rea element of the offense: specific intent to kill. TCO at 4 ("Given these facts, we cannot find that [t]he specific intent to kill has been established."). That ruling was a direct response to Appellee's habeas motion, wherein the defense had argued that the Commonwealth failed, under the prima facie standard, to provide evidence of Appellee's specific intent to kill Marsicano, not that the evidence was insufficient to establish that Appellee had taken a substantial step toward killing him. Appellee's Habeas Corpus Motion, 5/16/16, at 2 ¶ 5 (unnumbered pages).

In this context, it is clear that the Commonwealth's argument conflates the actus reus and mens rea elements of attempted murder. Unfortunately, the courts of this Commonwealth may have inadvertently prompted such confusion by occasionally utilizing a short-hand definition of the elements of attempted murder: a substantial step toward an intentional killing . One does not commit the crime of attempted murder by taking a substantial step toward forming or possessing the intent to kill, whatever that would mean. A person commits the crime of attempted murder when, while possessing the intent to kill, he or she takes a substantial step toward killing the victim.

Here, for the purposes of this appeal, it is undisputed that Appellee took a substantial step toward the commission of a killing . As described by the Commonwealth,

[t]he finder of fact could reasonably find that aiming a gun at the victim initially at chest to face level, the victim having to turn to run away when [Appellee] drew his firearm, [Appellee's] firing three shots at the victim, [and] the victim having been shot twice in the calf, establishes that [Appellee] took a substantial step toward the intentional[ ] killing of Alexander Marsicano.

Commonwealth's Brief at 18. The problematic portion of the Commonwealth's argument is the placement of the term, intentional , immediately preceding the term killing . Again, the crime of attempted murder occurs when "the defendant had the specific intent to kill and took a substantial step towards that goal." Blakeney , 946 A.2d at 652 (emphasis added). Here, the Commonwealth only describes its proof of the actus reus element of attempted murder, and then summarily concludes that the mens rea element naturally follows from the proof of the former. Absent invocation of a relevant presumption of law, as discussed below, or some relevant analysis of the manner in which the circumstantial evidence (including, but not limited to, the acts which satisfy the actus reus element), this argument is wholly unconvincing.

The Commonwealth cites Commonwealth v. Jackson , 955 A.2d 441 (Pa. Super. 2008), in support of its claim. However, our decision in Jackson involved the substantial step test, i.e. , the actus reus of the offense of attempted murder, not the mens rea element, further demonstrating the Commonwealth's conflation of the actus reus and mens rea elements of attempted murder in this case, or its misunderstanding of the basis for the trial court's ruling under review. In Jackson , the appellant challenged the sufficiency of the evidence supporting his conviction based on the argument that "the Commonwealth did not prove that [the a]ppellant had a gun or that he aimed or fired it at" the victim, Detective Dove. Id. at 445 . We rejected that claim, because "the finder of fact could have reasonably inferred that [the a]ppellant had his gun in hand at that time[,]" and because "the fact finder could have reasonably found that [the a]ppellant took a substantial step toward intentionally killing the detective" based on the specific circumstances of that case. 2 Id. For the reasons stated above, the inclusion of the term "intentionally" in the Jackson Court's statement was unfortunate, because Jackson had not challenged his conviction for attempted murder by alleging insufficient evidence of his specific intent to kill Detective Dove. Clearly, Jackson was not a specific-intent-to-kill case at all and, therefore, it is not controlling or even informative here.

Despite the Commonwealth's repeated conflation of the elements of attempted murder, it is still incumbent upon this Court to review whether the trial court erred when it determined that the facts and the reasonable inferences derived therefrom, considered in a light most favorable to the Commonwealth, did not justify placing the charge of attempted murder before a jury. Here, the facts themselves are not in serious dispute. The core issue is whether the reasonable inferences derived from those facts would permit a jury to conclude that Appellee possessed the specific intent to kill. More specifically, the question is whether the prima facie evidence produced by the Commonwealth could give rise to a reasonable inference that Appellee intended to kill Marsicano. We agree with the trial court that there is no reasonable inference of specific intent to kill that one can draw from the narrow factual circumstances of this case.

What is reasonable in any given case is not easily susceptible to bright-line rules, as no such rule could ever hope to encompass all potential circumstances. However, the courts of this Commonwealth have established some touchstones to guide us with respect to intent-to-kill jurisprudence. For instance, it is axiomatic that "[s]pecific intent to kill may be inferred from the use of a deadly weapon on a vital part of the victim's body." Commonwealth v. Uderra , 550 Pa. 389 , 706 A.2d 334 , 338 (1998) (emphasis added). More specifically, the "use of a deadly weapon directed at a vital organ of another human being justifies a factual presumption that the actor intended death unless the testimony contains additional evidence that would demonstrate a contrary intent." Commonwealth v. Alston , 458 Pa. 412 , 317 A.2d 229 , 231 (1974). This axiom clearly does not directly apply in the circumstances of this case, as Appellee did not shoot Marsicano in a vital organ of his body, or thereabouts. Instead, Marsicano only suffered injury in the lower part of his legs. 3 If Appellee intended that result, then he necessarily did not shoot with the specific intent to kill Marsicano, absent extraordinary and unique factual circumstances not present in this case. If Appellee nevertheless intended to kill Marsicano, but simply failed to accomplish his goal, the Commonwealth bears the burden to demonstrate that the evidence supports that inference with something more than "[s]uspicion and conjecture[.]" Carroll , 936 A.2d at 1152 .

To be clear, the absence of the use of a deadly weapon against a vital part of a victim's body does not preclude a finding of intent to kill, it only precludes the use of the presumption. See Commonwealth v. Kluska , 333 Pa. 65 , 3 A.2d 398 , 402 (1939) (noting that the absence of the presumption does not comprehensively rebut a finding of intent to kill, especially in cases where a killing is accomplished by "strangulation or drowning"). In the absence of that presumption, however, the Commonwealth must still produce some evidence of specific intent to kill. Carroll , 936 A.2d at 1152 .

For instance, in Commonwealth v. Cross , 231 Pa.Super. 148 , 331 A.2d 813 (1974), the defendant argued that the Commonwealth failed to offer evidence of his intent to kill when he fired a gun at a victim's vehicle. The victim did not sustain any injuries, as the bullet fortunately lodged in the door of his car. However, this Court affirmed Cross's conviction for attempted murder, because the evidence demonstrated a "long standing feud" between him and the victim's brother. Id. at 814 . Additionally, immediately prior to firing the shot at the victim, Cross yelled out, "This is for your brother." Id. Moreover, the bullet had "penetrated the outer panel of the automobile door at a height near the stomach of" the victim. Id. at 815 .

In the case sub judice , by contrast, the Commonwealth did not proffer any evidence that Appellee verbally indicated, directly or indirectly, his intent to kill Marsicano, nor did any other circumstantial evidence suggest such an intent. In Cross , the victim escaped grave harm only by an intervening metal car door. Here, the Commonwealth offers no theory regarding why Appellee would shoot Marsicano in the lower leg if he had formed the intent to kill. In the narrow factual circumstances of this case, poor aim is not a reasonable inference. According to Marsicano's own testimony, Appellee fired all three shots from "2 and [a] half, 3 feet away at the max ." N.T. Preliminary Hearing, 1/8/16, at 12-13 (emphasis added). 4

Thus, in a light most favorable to the Commonwealth, the facts demonstrate that Appellee fired at Marsicano from less than a yard away, yet only struck him in the calf, despite having initially aimed the gun much higher. These facts, without more, cannot support a reasonable inference that Appellee intended to kill Marsicano.

In Commonwealth v. Jackson , 481 Pa. 426 , 392 A.2d 1366 (1978), the defendant argued that the Commonwealth had not offered sufficient evidence of specific intent to kill where, during the course of a robbery of a service station, he had shot an attendant in the shoulder. The attendant later died from his injuries. The Jackson Court first rejected the notion that the deadly-weapon/vital-body-part presumption cannot arise unless a vital organ is struck, instead concluding that the "firing of a bullet in the general area in which vital organs are located can in and of itself be sufficient to prove specific intent to kill beyond a reasonable doubt." Id. at 1368 (emphasis added) (quoting Commonwealth v. Padgett , 465 Pa. 1 , 348 A.2d 87 , 88 (1975) ). Furthermore, other circumstances demonstrated Jackson's intent to kill. Id. at 1369 (holding that Jackson's "statement to [his accomplice] ('He knows me'), followed by his shooting, in the dark, one shot at the attendant and three at the customer, and the bullet's striking the attendant only several inches away from a vital area, all reasonably support a specific intent to kill on the part of" Jackson).

Instantly, there is no similar verbal evidence of Appellee's intent to kill. There are also no circumstances that naturally provide a motive to kill, from which the inference of an intent to kill can reasonably arise, such as are present when a robber suddenly discovers that his victim could identify him by name. Moreover, in Jackson , the Court noted that the shots had been fired in the dark, thereby providing some reasonable explanation as to why Jackson, possessing the intent to kill, shot the victim in the shoulder.

Our decision today does not conflict with our panel decisions in Commonwealth v. Manley , 985 A.2d 256 (Pa. Super. 2009), and Commonwealth v. Wyche , 320 Pa.Super. 483 , 467 A.2d 636 (1983). While some factual circumstances in Manley were similar to the facts in this case (the shooter fired from a close distance as the victim ran away), the victim in Manley , Taaqi Brown, was struck by five of six shots fired, in locations all about his body, including "the groin, thigh, shoulder and twice in the hand." Manley , 985 A.2d at 272 . The Manley Court cited our Supreme Court's decision in Padgett , where that court held that it was

not persuaded that it must be shown that the bullet fired from a revolver, a deadly weapon, initially entered a vital organ before the inference of specific intent to kill can arise. The firing of a bullet in the general area in which vital organs are located can in and of itself be sufficient to prove specific intent to kill beyond a reasonable doubt.

Padgett , 348 A.2d at 88 . In the instant case, not only are the victim's calves not vital parts of his body, but they are also not in the general area of any vital organs .

Moreover, in Manley , additional testimony was offered to prove intent that was not present in the instant case. Following his arrest, Manley had confessed to another inmate that he shot Taaqi Brown to avenge the shooting death of his friend at the hands of one of Brown's associates. Manley , 985 A.2d at 260 . Thus, additional evidence, beyond the mere circumstances of the shooting itself and locations of the wounds, tended to demonstrate Manley's specific intent to kill. No such evidence is present in the instant case.

In Wyche , another case upon which the Manley Court relied, the victim died after being shot in the hand, thigh, and pelvic area, the latter bullet having caused "damage[ to] major blood vessels and internal organs after entry." Wyche , 467 A.2d at 637 . Citing Padgett , the Wyche Court concluded that, "[a]lthough the fatal slug entered the victim through the buttock, the jury could properly infer the specific intent to kill from these circumstances." Id. It should be obvious that damage to major blood vessels and internal organs caused by a gunshot constitutes a wound to vital parts of the victim's body. Nevertheless, by citing Padgett , the Wyche Court indicated that it was close enough for purposes of invoking the vital wound inference, as it was in the "general area in which vital organs are located." Padgett , 348 A.2d at 88 . Again, no such evidence exists in this case.

Manley , Padgett , and Wyche all involve determinations that the deadly-weapon/vital-body-part presumption was properly invoked. That presumption cannot be raised under the facts of this case and, therefore, those decisions are not controlling here.

When we review evidence in a light most favorable to the Commonwealth, we are not obliged to outright ignore undisputed evidence so as to strengthen the reasonableness of inferences we draw from the remaining evidence. Instead, we review all of the evidence, and ascertain whether certain inferences suggested by the Commonwealth are reasonable; that is, whether it is reasonable to permit a jury to conclude that Appellee possessed the specific intent to kill Marsicano in the unique circumstances of this case. In this regard, the Commonwealth essentially asks this Court to ignore: the victim's unprovoked instigation of a confrontation with the new boyfriend of his ex-girlfriend, the complete lack of any verbal expression of intent to kill by Appellee despite the scuffle that occurred before the shooting, 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, but for an intent to scare or harm that fell short of specific intent to kill. To ask a jury to find that Appellee possessed the specific intent to kill in these circumstances is tantamount to asking them 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. While not impossibilities in the strictest sense, such inferences are simply not reasonable in the unique circumstances of this case.

Thus, we conclude that the Commonwealth failed to produce "evidence of every material element of the charged offense[,]" attempted murder, namely, the mens rea element of specific intent to kill. Carroll , 936 A.2d at 1152 . Accordingly, we ascertain no error in the trial court's granting Appellee's habeas motion striking the charge of attempted murder.

Order affirmed . Case remanded . Jurisdiction relinquished .

President Judge Gantman, Judge Panella, Judge Shogan, Judge Lazarus, Judge Dubow and Judge Nichols join this opinion.

Judge Stabile files a dissenting opinion.

Judge McLaughlin files a dissenting opinion.

DISSENTING OPINION BY STABILE, J.:

I respectfully dissent from the Majority's decision to affirm the trial court's order granting the pretrial petition for writ of habeas corpus of Appellee/defendant, Stephen Predmore, on the charge of attempt to commit criminal homicide. 1 The trial court found the Commonwealth failed to present sufficient prima facie evidence that Appellee had a specific intent to kill the victim, Alexander Marsicano. The Majority agrees, but does so by failing to view the Commonwealth's prima facie evidence in the best light to which it is entitled and by impermissibly weighing the prima facie evidence as if it were a jury deciding this case.

The Majority appropriately recognizes that our standard of review of a decision to grant a pretrial petition for a writ of habeas corpus is to examine the evidence and reasonable inferences derived therefrom in a light most favorable to the Commonwealth, and that as a question of law, this Court's review is plenary. Majority Opinion at 928-29, citing Commonwealth v. Dantzler , 135 A.3d 1109 , 1111-12 (Pa. Super. 2016). In the pretrial setting, the focus of a habeas corpus hearing is to determine whether sufficient evidence exists to hold a defendant in government custody until he may be brought to trial. Commonwealth v. Fowlin , 450 Pa.Super. 489 , 676 A.2d 665 (1996), citing Commonwealth v. Owen , 397 Pa.Super. 507 , 580 A.2d 412 , 413 (1990). The habeas corpus petition is similar in purpose to a preliminary hearing. Id. In making a pretrial determination, a court is not limited to reviewing the evidence presented at a preliminary hearing. Id. The Commonwealth also may present additional evidence at the habeas corpus stage in an attempt to establish a prima facie case that a crime has been committed and that the accused is the person who committed the crime. Id. A pretrial petition for a writ of habeas corpus is the procedure for testing whether the Commonwealth has furnished prima facie evidence against the defendant at his preliminary hearing. Commonwealth v. Carroll , 936 A.2d 1148 , 1152 (Pa. Super. 2007), appeal denied , 596 Pa. 752 , 947 A.2d 735 (Pa. 2008).

The prima facie hurdle is less demanding than the Commonwealth's burden at trial of proving guilt beyond a reasonable doubt. Commonwealth v. McBride , 528 Pa. 153 , 595 A.2d 589 , 591 (1991). A prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense. Id. The evidence need only be such that, if presented at trial and accepted as true, a judge would be warranted in permitting the case to go to a jury. Commonwealth v. Hilliard , 172 A.3d 5 , 10 (Pa. Super. 2017). Further, as stated, "the evidence must be considered in the light most favorable to the Commonwealth so that inferences that would support a guilty verdict are given effect." Id. "The weight and credibility of the evidence is not a factor at this stage." Id.

Here, at the habeas hearing, the Commonwealth presented testimony from the investigating State Police trooper in addition to admitting into evidence the transcript from the preliminary hearing. Therefore, to comply with our appropriate standard of review, I initially shall set forth the prima facie evidence, before considering the legal question raised, viewing it in a light most favorable to the Commonwealth.

Marsicano, the victim, was the first witness called by the Commonwealth at the preliminary hearing held on January 8, 2016. He testified that Cheyenne Eberhart was his ex-girlfriend as of December 12, 2015, the date of the incident in question. N.T. Preliminary Hearing, 1/8/16, at 5. He was on his way home and driving past her residence. Id. at 5-6 . He stopped in the parking lot by Eberhart's apartment next to a truck owned by Appellee with whom he used to be friends. Id. at 6-7 . He got out of his vehicle and at some point Appellee appeared. Appellee walked to his truck and got into an argument with Marsicano that then escalated into a fight. Id. at 7 . Before fighting, Marsicano said to Appellee that it was "messed up how he was talking to [Eberhart] behind my back." Id. at 8 . At that point, the argument ensued and Appellee shoved Marsicano, who then shoved him back before the two broke out into a fight. Id. They were both shoving and punching each other in the face and chest. Id. at 9 . Eberhart came out of her apartment and tried to break up the fight by getting between the two of them and pushing them away. Id. at 9-10 . At that point, Marsicano backed up. Appellee went to his truck. Id. at 10 . Marsicano was about a foot away from the truck, but about 3 or 4 feet away from Appellee. Id. at 11 . Appellee opened the door to his vehicle, opened the glove box, put a clip into a pistol, cocked it, and then pointed it at Marsicano. Id. at 11 . Marsicano testified he was approximately 2½ to 3 feet away at the time Appellee pointed the gun at him and let off 3 shots. Id. at 12-13 . When the first shot was fired Marsicano had his back to Appellee and was in the process of running away when Appellee let off two more shots. Id. at 12-13 . He attempted to turn and run away when he first saw the firearm. Id. at 13 . He was hit in the back of both calves. Id. at 13 .

Upon cross-examination, Marsicano reiterated that he dated Eberhart for about six months and that their relationship ended a couple months before the incident in question. Id. at 17 . Eberhart lived right off the Route 115 on Valley Road. Id. He could see her house from Route 115. Id. He left Route 115 in order to go by Eberhart's home. Id. He did so at approximately 12:45 a.m. Id. He went to Eberhart's home because he saw Appellee's truck in the parking lot of her apartment complex. Id. He found this problematic because Appellee was always trying to talk to Eberhart behind his back when they were together. Id. at 18-19 . He got out of his vehicle in the parking lot to verify if what he saw was Appellee's vehicle. Id. at 20 . He was going to go back to his car and proceed home when Appellee came outside. Id. It was at that point Appellee approached him and started having a conversation with him. Id. at 20-21 . They then wound up fighting and Eberhart came out of the apartment to break up the fight. Id. at 21 . She pushed them apart. Id. He did not know at the time why Appellee went to his truck, but he heard a gun being loaded and cocked and watched it being pointed at him. Id. at 22 . Appellee turned towards Marsicano and Marsicano then went to run before Appellee let off three shots. Id. He claimed that Appellee did not say anything to him; he just shot. Id. at 22, 24 . He had his back to Appellee when he was shot while running. Id. at 22-23 . When Marsicano saw the gun being pointed at him it was pointing at his chest to face level. Id. at 24 . It was at that point he turned and started running and was shot while his back was to Appellee. Id. at 24 . Marsicano admitted that he did have past altercations with Appellee and engaged in arguments and fights that involved Eberhart when Marcicano was dating her. Id. at 27 . Specifically, he and Appellee argued over Appellee trying to talk to Eberhart when Marsicano was dating her. Id. at 27 . This occurred approximately two months before they broke up. Id.

Eberhart testified next on behalf of the Commonwealth. She testified that on December 12, 2015, she was at her apartment with Appellee watching a movie. Id. at 29 . Appellee left her residence to go outside after she received a phone call from a blocked ID put in place after previous harassment from Marsicano. Id. at 29-30 . She watched Appellee walk to the end of a sidewalk, make a right to the parking lot, and immediately heard fighting. Id. at 30 . At that point, she could not see what was taking place, but ran to the side of the building and witnessed Marsicano and Appellee fighting. Id. at 30-31 . She attempted to break up the fight by stepping between them when they were arguing as she was yelling at them. Id. at 31 . She did not see Appellee go to his truck or anything in his hands. Id. at 32 . After she broke the men apart the first time, they again began to argue, leading to a second fight. Id. at 32 . She testified that the fighting did not break then because a gun was visible to her at which time she saw Marsicano grab Appellee's arms telling him to shoot him while the gun was flailing in the air. Id. The last thing she saw was Marsicano grabbing Appellee's arms and Appellee stating to Marsicano "the gun is loaded, you idiot." Id. at 32-33 . She then heard the gun go off and observed Marsicano facing Appellee from approximately 5 feet away. Id. at 33 . The men were not touching each other. Id. She testified the first shot she saw was aimed at the pavement. Id. While she heard a second shot, she never saw it. Id. Appellee then got into his vehicle to leave while Marsicano was still standing before Marsicano then laid down on the ground and started vomiting. Id. at 33-34 .

Upon cross-examination, Eberhart again testified that she and Appellee were watching a movie at her residence and that she previously had a relationship with Marsicano for about four months that ended about mid-October before the December incident. Id. at 35-36 . Marsicano had been in constant contact, harassing her from mid-October to December 12, 2015. Id. at 36 . Consequently, she blocked him on all social media and had his phone number blocked. Id. Nonetheless, Marsicano continued to use text apps on his phone to contact her daily and to harass her every day that eventually caused her to secure a Protection from Abuse ("PFA") order against him. Id. at 36-37 . When the initial fight broke up, both Marsicano and Appellee took a step back from each other and continued arguing verbally. Id. at 38 . Less than a minute lapsed before the second round of fighting began. Id. She disagreed with Marsicano's testimony that there was only one round of fighting before he stepped back after she broke it up. Id. She also disagreed with Marsicano's testimony that after he first saw the gun he turned and began to run away. Id. She never saw Marsicano turn to run away, testifying that when the second round of fighting began Marsicano grabbed Appellee's arms telling him to shoot him. Id. at 39 . She did not observe Appellee threaten Marsicano after he retrieved his gun. Id. Rather, Marsicano grabbed Appellee's arms while the gun was flailing in the air when Appellee stated to Marsicano, "the gun's loaded, you fucking idiot." Id. at 40 . She was fearful of Marsicano because he was grabbing Appellee's arms. Id. Eberhart testified that Marsicano was telling Appellee to shoot him, saying "I dare you, motherfucker." Id. She stated that Marsicano appeared to be intoxicated when he appeared at her home and engaged in the fight with Appellee. Id. at 41-42 .

Upon redirect, Eberhart confirmed again that, when she heard the first shot, Marsicano was approximately five feet away from Appellee and there was no physical contact at that point. Id. at 44 . Upon re-cross, she testified again that the first shot went into the ground. Id.

The final witness to testify at the preliminary hearing was Pennsylvania State Police Trooper Jeffrey Kowalski, who responded to the December 12, 2015 incident. Id. at 46 . He testified that Appellee indicated he was acting in self-defense in order to stop the beating. Id. at 50 . In his affidavit of probable cause, Trooper Kowalski stated that the argument turned physical, and that upon breaking away from one another, Appellee went to his truck, opened the passenger door, obtained a Ruger model SR 9C9-millimeter pistol, pointed the gun in the direction of Marsicano, and discharged three rounds. Id. at 51-52 . At the conclusion of Trooper Kowalski's testimony, the magistrate bound the charges over for court.

Appellee again filed a petition for a writ of habeas corpus with the trial court. A hearing was held on June 20, 2016. At that time, the Commonwealth submitted the transcript from the preliminary hearing as an exhibit. N.T. Hearing, 6/20/16, at 3. The Commonwealth again called Trooper Kowalski to testify. He again testified that he responded to a shooting at Eberhart's residence and that he had an opportunity to speak with Appellee. Id. at 6 . Appellee advised the trooper what happened that evening and provided a verbal and written statement. Id. at 7 . Appellee admitted that he retrieved a firearm from his truck that was located in the parking lot of Eberhart's apartment building. Id. He obtained it from the center console. Id. Appellee did not have a permit to conceal the weapon. Id. On cross-examination, the Trooper indicated he spoke to four individuals on the evening of the incident, but none were ever asked if there was a specific intent to kill Marsicano that evening. Id. at 11 . Instead, individuals provided statements indicating that the gun was fired in the direction of Marsicano by Appellee. Id. The Trooper confirmed that Appellee indicated he was at Eberhart's residence on the evening of the incident to watch a movie. Id. at 12 . His understanding was that Marsicano appeared at the incident site while driving up Route 115 when he was able to see the rear of Eberhart's residence and Appellee's truck parked there. Id. at 12 . He knew that Marsicano and Eberhart were formerly boyfriend and girlfriend. Id. at 12-13 . Marsicano confirmed to the Trooper that he stopped because he saw Appellee's truck at Eberhart's home. Id. at 13 . Marsicano indicated that Appellee approached him in the parking lot of the apartment complex and that a fight ensued that began with a verbal altercation before it became physical. Id. The gun was retrieved after the fight became physical, a shoving match started, the men ended up on the ground, and that, after they were separated, Appellee went to his vehicle and obtained the gun. Id. at 13-14 . Marsicano and Appellee were separated when the shots were fired, Id. at 14 , and witnesses who provided statements to Trooper Kowaski also indicated that after the gun was obtained, Marsicano and Appellee struggled again, but then became separated and that is when the shots were fired. Id.

Upon cross-examination, Trooper Kowalski indicated that Marsicano stated he was shot twice in his legs and that he feared for his life when the gun was pointed at him. Id. at 15 . One bullet struck the victim in his lower right leg and one in the lower left leg. Id. at 16 . Finally, he indicated that Marsicano showed up to Eberhart's house uninvited and that Appellee indicated he was simply defending himself to stop the beating perpetrated by Marsicano. Id. at 18 .

A crime generally consists of two elements, a physical, wrongful deed, the actus reus , and a guilty mind that produces the act, the mens rea . Commonwealth v. Ricker , 642 Pa. 367 , 170 A.3d 494 , 502, n. 7 (2017) (Saylor, C.J., concurring). The Crimes Code provides that "[a] person commits an attempt when with intent to commit a specific crime [the mens rea ], he does any act which constitutes a substantial step [the actus reus] towards the commission of the crime." 18 Pa.C.S.A. § 901(a). A conviction for attempted murder requires the Commonwealth to prove beyond a reasonable doubt that a defendant had a specific intent to kill and took a substantial step towards that goal. Commonwealth v. Blakeney , 596 Pa. 510 , 946 A.2d 645 (2008). "[I]n the attempt setting, the mens rea level of 'intentionally' attaches to the result." 2 Commonwealth v. Roebuck , 612 Pa. 642 , 32 A.3d 613 , 622 (2011) ; see Roebuck , 32 A.3d at 622 n.20 ("[T]o be guilty of criminal attempt, a defendant's conscious objective must be to cause the result necessary to the substantive crime."). Thus, to prove that Appellant had the mens rea for attempted murder, the Commonwealth had to establish that Appellee had the "conscious objective," that is, the goal, of killing the victim. Cf. Commonwealth v. Hall , 574 Pa. 233 , 830 A.2d 537 , 541 (2003) (to prove defendant had mens rea for aggravated assault, Commonwealth was required to prove that he had "conscious object to inflict serious bodily injury" on victim). "The mens rea required for first-degree murder, specific intent to kill, may be established solely from circumstantial evidence." Commonwealth v. Schoff , 911 A.2d 147 , 160 (Pa. Super. 2006) (citation omitted). It also may be established through a combination of direct and circumstantial evidence. Commonwealth v. Alford , 880 A.2d 666 , 671 (Pa. Super. 2005) (citations omitted), appeal denied , 586 Pa. 720 , 890 A.2d 1055 (Pa. 2005). "Specific intent may be formed in an instant." Commonwealth v. Mollett , 5 A.3d 291 , 313 (Pa. Super. 2010) (citation omitted), appeal denied , 609 Pa. 686 , 14 A.3d 826 (Pa. 2011).

The Majority states that for purposes of this appeal, it is undisputed that Appellee took a substantial step toward the commission of a killing. See Majority Opinion at 930. I agree. The sole issue presented here challenges the trial court's determination that the Commonwealth failed to present sufficient prima facie evidence of Appellee's specific intent to kill. I conclude the Commonwealth presented more than enough prima facie evidence of specific intent to kill to allow the charge of attempted criminal homicide to proceed to a jury trial.

Viewed in a light most favorable to the Commonwealth, the evidence adduced during the preliminary hearing and before the trial court established the following. Prior to December 12, 2015, animosity existed between Marsicano and Appellee based upon Marsicano's belief that Appellee had been communicating with Eberhart while Marsicano and she were dating. On December 12, 2015, at or about 12:45 a.m., Marsicano was driving past Eberhart's residence when he noticed Appellee's truck parked outside her apartment. He turned off the highway and stopped his vehicle in the parking lot next to Appellee's truck outside Eberhart's apartment. Appellee was visiting Eberhart at the time. Despite Eberhart complaining about Marsicano harassing her prior to this time and securing a PFA order against him, Marsicano proceeded to call Eberhart while she was in her apartment with Appellee. Given the acrimonious history between Marsicano and Appellee and Appellee's belief that Marsicano was outside Eberhart's apartment, Appellee went to the parking lot outside Eberhart's apartment and found Marsicano in the parking lot next to his truck. A fistfight eventually ensued between Appellee and Marsicano because Appellee believed the victim was trying to harass Eberhart who was then his girlfriend. The two men began quarreling and exchanging shoves and punches. Eberhart arrived and managed to step in between them and break up the fight.

Instead of ceasing hostilities, Appellee intentionally and purposefully went to his truck to procure a gun with the intent of firing it at Marsicano. Thereafter, Appellee walked over to his truck, opened the door, retrieved a gun from the glove compartment, loaded the gun, cocked it, turned toward Marsicano and pointed the gun at his face to chest to level. According to Marsicano, he was several feet away from Appellee when Appellee pointed his gun at his face and chest before firing three shots at him. At this point, Marsicano stated that he feared for his life. According to Eberhart, Marsicano grabbed Appellee's arms and while the gun was flailing in the air, Appellee warned Marsicano that the gun was loaded. Not taking heed, Marsicano taunted Appellee to go ahead and shoot him. Appellee fired three shots. The first hit the pavement. The second and third hit Marsicano in his left and right calves while he was attempting to run away from Appellee, thus evidencing that the second and third shots were not meant to scare, but to harm the victim.

Unlike the trial court and Majority, I conclude that the Commonwealth submitted ample prima facie evidence of a specific intent by Appellee to kill Marsicano. The mens rea of Appellee's specific intent to kill had its origins in the acrimony between Marsicano and Appellee that existed prior to the date in question. This pre-existing acrimony evolved into a fistfight on the night in question. As the evidence indicates, after the fight, Appellee went to his truck to retrieve his gun, loaded and cocked it, and then pointed it at Marsicano's face and chest, sufficiently evidencing a specific intent to kill. Marsicano told trooper Kowalski that he feared for his life when Appellee pointed the gun at him. "A gun is a lethal weapon; pointing it towards a person, and then discharging it, speaks volumes as to one's intention." Commonwealth v. Hall , 574 Pa. 233 , 830 A.2d 537 , 543 (2003). Firing multiple shots speaks even more loudly as to Appellee's intent. Id. (firing two shots "evidenc[es] a more settled intent ... than a single shot"). The Majority briefly mentions these acts in its summary of the facts, Majority Op. at 929, but fails to construe them in the light most favorable to the Commonwealth. Thus, the Commonwealth presented sufficient facts to establish prima facie evidence of a specific intent to kill by Appellee.

In its opinion disposing of Appellee's motion for habeas corpus relief, the trial court concluded that the Commonwealth did not establish a specific intent to kill for the crime of attempted murder. The trial court arrived at this conclusion relying upon case law that "a specific intent to kill may be inferred from the use of a deadly force upon a vital part of the human body." Trial Court Opinion, 12/12/16 at p. 3-4, citing Geathers , 847 A.2d at 737 (citation omitted in original). From this, the trial court concluded that since the lower legs are not a vital part of the body and Marsicano was shot in his calves below the knee, it could not find any specific intent to kill had been established. Id. at 4. I disagree.

The statement that a specific intent to kill may be inferred from the use of a deadly force upon a vital part of the human body is merely a presumption of fact that permits a jury to find intent from the use of a deadly weapon upon a vital part of the body. Commonwealth v. O'Searo , 466 Pa. 224 , 352 A.2d 30 (1976). This presumption arises from the fact that it is common knowledge that such a use is likely to cause death and therefore, entitles a jury to infer that the intent of a person using such a weapon in such a manner was to kill. Commonwealth v. Kluska , 333 Pa. 65 , 3 A.2d 398 , 402 (1939). As a presumption of fact, it permits a prima facie inference. O'Searo , supra . Nonetheless, as the Majority correctly recognizes, the absence of the use of a deadly weapon against a vital part of a victim's body does not preclude a finding of intent to kill, it only precludes the use of the presumption . Majority Opinion at 932, citing Kluska , 3 A.2d at 402 . The trial court committed error by incorrectly concluding that, if a deadly weapon was not used against a vital part of a victim's body, no specific intent to kill for attempted murder may be inferred. The trial court failed to recognize that the intent to kill from use of a deadly weapon upon a vital part of a victim's body is merely a factual presumption that does not preclude proving specific intent otherwise. Moreover, the trial court had an obligation to examine the entire prima facie evidence offered by the Commonwealth before determining whether a prima facie case had been established for attempted murder.

The Majority faults the Commonwealth for only addressing the actus reus of attempted murder and not the mens rea , or specific intent, which is the issue in this case. The Majority states that the Commonwealth only describes its proof of the actus reus of attempted murder, and then improperly and summarily concludes, absent invocation of a relevant presumption, that the mens rea naturally flows from proof of the former. Majority Opinion at 930. Respectfully, I disagree.

In its brief, the Commonwealth points to prima facie evidence wherein Appellee went to his vehicle, retrieved a pistol from the glove box, put a clip in the pistol, cocked it and then pointed it at Marsicano. Commonwealth's Brief at 16. The Commonwealth notes Appellee then fired three shots at the victim while he was attempting to run away, striking him in both legs. Id. From this, the Commonwealth argues that the factfinder could reasonably find that Appellee took a substantial step toward the intentional killing of Marsicano. Id. While it is true, as the Majority notes, that the juxtaposition of a "substantial step" and "intentional killing" in the text of the Commonwealth's brief suggests some confusion, it seems clear from the Commonwealth's brief that it is arguing its prima facie evidence was sufficient to satisfy both the mens rea and actus reus of attempted murder.

In the absence of a presumption, it is necessary to discuss substantial step evidence as that may bear upon proof of a specific intent to kill. An act is a substantial step if it is a major step towards the commission of a crime and strongly corroborates a jury's belief that a person, at the time they did the act, had a firm intent to commit that crime. See Geathers , supra ; Pennsylvania Suggested Standard Criminal Jury Instructions § 12.901a.1. Therefore, to connect the specific intent and a substantial step in the crime of attempted murder, by necessity, there must be a showing as to how the substantial step relates to specific intent. See Geathers , supra (specific intent to kill proven where defendant and victim had a verbal altercation, the situation calmed, defendant left the scene and returned with a gun, defendant shot at victim but missed, victim ran and defendant shot two more times, victim ran down the street and defendant shot again striking left side of victim's head). I, therefore, would not fault the Commonwealth for summarily discussing all of its prima facie evidence to establish the required specific intent to kill. As explained in greater detail, supra , the prima facie evidence offered by the Commonwealth in fact was much more than that briefly described above from its brief.

On the merits of establishing a prima facie case of specific intent, the Majority concludes that it is not reasonable to infer that the Commonwealth produced evidence of a specific intent to kill for three reasons. First, the victim, Marsicano, instigated a confrontation with Appellee over his ex-girlfriend, Eberhart. Second, there was a complete lack of any verbal expression of intent to kill by Appellee despite the scuffle that occurred before the shooting. Third, the near impossibility of Appellee missing any area or vital portion of the victim's body from the range at which he fired, but for an intent to scare or harm, fell short of a specific intent to kill. Majority Opinion at 934.

In my opinion, the Majority errs in its analysis both by weighing the prima facie evidence and by repeatedly interpreting this evidence in a light more favorable to Appellee than, as required, to the Commonwealth.

As for its first reason for not finding specific intent to kill, the Majority labels this event "an unprovoked instigation [by the victim] of a confrontation with [Appellee]" to argue against specific intent. Majority Opinion, at 934. The Majority blames the victim for causing the fight-and by so doing, lays the foundation for suggesting that the victim brought the shooting on himself. It is simply wrong, however, for the Majority to take this position, given the principle that we must view the evidence in the light most favorable to the Commonwealth. While a jury might conclude that the victim instigated the fight, we are required at this stage of the proceeding to conclude that Appellee instigated the fight by storming outside Eberhart's residence to confront the victim. The evidence could solidly support this inference. The assertion that the victim instigated the confrontation falls flat when the evidence is construed in a light most favorable to the Commonwealth. Blaming the victim for starting the fight is tantamount to interpreting and weighing the evidence in a light most favorable to Appellee.

As for its second reason for not finding specific intent to kill, referencing Commonwealth v. Cross , 231 Pa.Super. 148 , 331 A.2d 813 (1974), the Majority faults the Commonwealth for not proffering any evidence that Appellee verbally indicated, directly or indirectly, his intent to kill Marsicano. In Cross , a bullet penetrated the outer panel of a car door at a height near the stomach of the victim. The evidence demonstrated a long-standing feud between the defendant and the victim's brother. Immediately prior to shooting, the defendant yelled to the victim, "[t]his is for your brother." While the verbalization in Cross may well have supported a specific intent to kill, this Court in no way suggested that an express verbal threat was a prerequisite to establishing a specific intent to kill. The verbalization was merely part of the evidence offered to prove specific intent in that case. The Majority's criticism that the Commonwealth did not offer any other circumstantial evidence to prove a specific intent to kill is simply not in accord with the prima facie evidence offered by the Commonwealth when viewed in a light most favorable to the Commonwealth.

As for its last reason, the Majority posits that specific intent to kill is absent in this case, because "the near impossibility of Appellee missing any area or vital portion of the victim's body from the range at which he fired, but for an intent to scare or harm that fell short of a specific intent to kill." Once again, the Majority deprives the Commonwealth of its evidence viewed in the best light. A jury must decide whether intent to kill is proven beyond a reasonable doubt. This Court does not have that prerogative when reviewing whether a prima facie case has been established. The evidence produced before the trial court suggests that the events here were violent, highly emotional and rapidly unfolding. The victim was attempting to flee at the time the shots were fired, arguably while Appellee did not have complete control over his gun having fired it immediately after the victim grabbed his arms before attempting to flee. A jury could conclude that under these fraught circumstances, the victim escaped death because of Appellee's poor aim at the time, and not because of a lack of intent to kill the victim, especially under circumstances where the victim was taunting Appellee to shoot him.

Nor do I believe the Majority considers the shooting evidence in a light most favorable to the Commonwealth by viewing the first shot into the ground as merely intending to scare the victim. Here, the evidence can be viewed far differently. Appellee fired a second and a third shot at close range. 3 Both struck the victim, thereby evidencing an intent not to scare, but to harm. If it was Appellee's initial intention just to scare, his subsequent shots certainly go far to dispelling that notion, as they were aimed at and hit the victim's body. It is impermissible to infer under these facts that Appellee only wanted to cause fright. A gun is designed to kill. See Hall , supra . Appellee aimed his gun at the victim's body. The question as to whether the discharge of Appellee's gun evidenced a specific intent to kill is a question for the jury, not one for the trial court or this Court upon review of the Commonwealth prima facie evidence.

For these reasons, I respectfully dissent. I would reverse the order dismissing the charge of attempted murder and remand to the trial court for further proceedings.

DISSENTING OPINION BY McLAUGHLIN, J.:

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 927. 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 murder, the Commonwealth must also present evidence establishing that the defendant possessed the specific intent to kill. Id. at 929.

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 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 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 , 583 Pa. 96 , 876 A.2d 360 , 363 (2005) (quoting Commonwealth v. Huggins , 575 Pa. 395 , 836 A.2d 862 , 866 (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 , 196 A.3d 649 , 655, 2018 PA Super 266 , at *5 (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 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 Common wealth v. Hall , 574 Pa. 233 , 830 A.2d 537 , 543 (Pa. 2003) ).

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 934. 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. 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 934. 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 , 523 Pa. 203 , 565 A.2d 764 , 767 (1989) (opinion announcing judgment of the Court). See also Commonwealth v. Lopez , 523 Pa. 126 , 565 A.2d 437 , 440 (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 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 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.

1 Thus, the crimes of attempted murder in the second degree and attempted murder in the third degree do not exist. See Commonwealth v. Griffin , 310 Pa.Super. 39 , 456 A.2d 171 , 177 (1983). Neither second- nor third-degree murder require a showing of specific intent to kill. Attempted murder is, by definition, attempted first-degree murder. As this Court explained in Griffin :

While a person who only intends to commit a felony may be guilty of second degree murder if a killing results, and a person who only intends to inflict bodily harm may be guilty of third degree murder if a killing results[,] it does not follow that those persons would be guilty of attempted murder if a killing did not occur. They would not be guilty of attempted murder because they did not intend to commit murder-they only intended to commit a felony or to commit bodily harm.

Id.

2 Immediately prior to the specific moment in time that gave rise to Jackson's conviction for attempted murder, Jackson had engaged in a gun battle with the detective and other police officers, where Jackson and his cohorts had fired "between 50 and 80 shots" at the officers. Id. at 443. In its brief, the Commonwealth misstates or misrepresents these facts, suggesting that Jackson had only been shooting at another man, Wesley, just prior to his flight from Detective Dove. Commonwealth's Brief at 15. That might suggest that Jackson had formed the specific intent to kill Detective Dove solely by raising his firearm when being pursued by Detective Dove. However, Detective Dove was investigating the shooting of Wesley which "occurred earlier in the day[.]" Id. at 442. While investigating the earlier shooting, Jackson and his cohorts again attacked Wesley while the police were present, and a gunfight with police erupted. Id. Not surprisingly, then, Jackson did not challenge whether he possessed the intent to kill Detective Dove, given that that he had engaged in a massive firefight with police, including Detective Dove, just moments before the specific event which led to his conviction for attempted murder. In other words, there was ample evidence of Jackson's intent to kill beyond the mere fact that he had raised his weapon during the pursuit by Detective Dove.

3 The Commonwealth does not dispute that the victim's calves are not vital portions of his body within the meaning of the presumption.

4 According to Eberhart's testimony at the preliminary hearing, Appellee fired the shots from 5 feet away, rather than from 2 ½-3 feet away, as Marsicano, the actual victim, contended. Id. at 33. It is not clear which fact adheres to the rule that we must construe the facts in a light most favorable to the Commonwealth. Generally speaking, the Commonwealth will prefer an accounting of the facts that suggests a shooter fired from the closest possible range when seeking to prove his or her intent to kill, as the Commonwealth will argue that the close proximity itself demonstrates the required intent; yet, if the shot is fired from a greater distance, the Commonwealth seeking to prove the same intent will inevitably argue that the shooter's failure to cause more damage is a result of his poor aim, rather than the absence of his intent to kill. Which fact is more 'favorable' to the Commonwealth is more of a philosophical question than a factual one. Thankfully, we need not tread into that philosophical quagmire in the circumstances of this case, as the difference in distance is negligible as it pertains to our analysis. The notion that Appellee's intent to kill is demonstrated if he fired from 5 feet away, but not from 3 feet away, is not a reasonable one. In either case, it is clear that the evidence cannot sustain the unreasonable inference that Appellee was aiming his weapon with the intent to inflict lethal damage. Moreover, Eberhart testified that Appellee fired the first shot at the pavement , casting further doubt as to which witness's version of events is more favorable to the Commonwealth. See id. at 33-35.

1 "Criminal Homicide" is classified as murder, voluntary manslaughter, or involuntary manslaughter. 18 Pa.C.S.A. § 2501(b). Murder in turn is classified as murder either in the first, second, or third degree. 18 Pa.C.S.A. § 2502(a) -(c). The crime charged in this case is attempt to commit first degree murder. The Majority correctly observes that the crime of attempted second or third degree murder does not exist. See Commonwealth v. Geathers , 847 A.2d 730 , 734 (Pa. Super. 2004).

2 In Commonwealth v. Clopton , 447 Pa. 1 , 289 A.2d 455 (Pa. 1972), our Supreme Court offered a classic definition of attempt, to wit:

An attempt ... is an overt act done in pursuance of an intent to do a specific thing, tending to the end but falling short of complete accomplishment of it. In law, the definition must have this further qualification, that the overt act must be sufficiently proximate to the intended crime to form one of the natural series of acts which the intent requires for its full execution. So long as the acts are confined to preparation only, and can be abandoned before any transgression of the law or of others' rights, they are within the sphere of intent and do not amount to attempts.

Clopton , 289 A.2d at 457-58 , citing Commonwealth v. Ellis , 349 Pa. 402 , 37 A.2d 504 , 505-06 (1944).

3 The Majority quotes the victim's testimony indicating that Appellant shot at him from at most two and a half to three feet away. Eberhart testified, however, that the first shot was from five feet away. Id. at 33. The Majority should have resolved this conflict by finding that the first shot was five feet away, for this version of events was most helpful to the Commonwealth. The greater the distance between Appellee and the victim, the greater the likelihood that Appellee intended to kill him but simply aimed poorly.

1 See also Hilliard , 172 A.3d at 10 ; Commonwealth v. Marti , 779 A.2d 1177 , 1180 (Pa.Super. 2001).