Commonwealth v. Predmore, 238 EDA 2017

CourtSuperior Court of Pennsylvania
Writing for the CourtOPINION BY BENDER, P.J.E.
Citation199 A.3d 925
Parties COMMONWEALTH of Pennsylvania, Appellant v. Steven PREDMORE, Appellee
Docket NumberNo. 238 EDA 2017,238 EDA 2017
Decision Date27 November 2018

199 A.3d 925

COMMONWEALTH of Pennsylvania, Appellant
Steven PREDMORE, Appellee

No. 238 EDA 2017

Superior Court of Pennsylvania.

Argued July 10, 2018.
Filed November 27, 2018

Mark S. Matthews, Assistant District Attorney, Stroudsburg, for Commonwealth, appellant.

Christopher B. Jones, Scranton, for appellee.



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)

199 A.3d 928

("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
199 A.3d 929
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

199 A.3d 930

facie case for the mens rea element of the offense: specific intent to kill. TCO at 4 ("Given these facts, we cannot...

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