J-S08038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KIMMY X. WONG                              :
                                               :
                       Appellant               :   No. 3884 EDA 2017

            Appeal from the Judgment of Sentence August 18, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008960-2012,
                           CP-51-CR-0008961-2012


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

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MARCH 07, 2019

       Appellant, Kimmy X. Wong, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County following his

conviction by a jury on two counts of attempted murder in the first degree,

two counts of aggravated assault, two counts of robbery, one count of firearms

not to be carried without a license, one count of firearms not to be carried on

the streets of Philadelphia, and one count of possession of an instrument of

crime, as well as his conviction in a non-jury trial on the charge of possession

of a firearm prohibited.1 After a careful review, we affirm.




____________________________________________


1 18 Pa.C.S.A. §§ 901(a), 2702(a), 3701, 6106(a)(1), 6108, 907(a), and
6105(a)(1), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S08038-19


      The relevant facts and procedural history are as follows: On June 13,

2012, Appellant was arrested, and he was charged with various crimes at two

separate lower court docket numbers. For the charges docketed at CP-51-

CR-0008960-2012, the Commonwealth listed Phillip Holland as the victim, and

for the charges docketed at CP-51-CR-0008961-2012, the Commonwealth

listed Jerel Livingston as the victim.

      On June 1, 2017, Appellant, who was represented by counsel, proceeded

to a jury trial. At trial, Philadelphia Police Officer Kenneth Sherard testified

that, on June 13, 2012, at approximately 5:20 p.m., he was on patrol and

received a radio call of shots fired near an apartment complex in the 8400

block of Lindbergh Boulevard. N.T., 6/1/17, at 48. Subsequently, he received

another radio call for a shooting at the 8400 block of Lyons Avenue near the

Pepper Middle School. Id. at 49-50. At this point, the police were not sure

how, or if, the two shootings were related. Id.

      Officer Sherard testified that, upon arrival at the Lindbergh Boulevard

location, he saw a black male, with an apparent gunshot wound to his

forehead, lying on the sidewalk outside of an apartment building. Id. at 53.

Officer Sherard secured the location and observed several shell casings on the

ground. Id. at 57. The deceased shooting victim was later identified as Terrell

Brown. Id.

      Philadelphia Police Officer Torin Saunders testified that, on the day in

question, he was on duty and received a radio transmission directing him to


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the 8400 block of Lindbergh Boulevard.           Id. at 79-80. He and his partner

traveled immediately to the location, gathered information, and then, based

on subsequent “flash” information2 regarding the description of a suspect,

began surveying the surrounding area. Id. Officer Saunders testified that,

as he and his partner were driving around the Penrose Plaza shopping center,

Officer Saunders noticed Appellant, who fit the description provided in the

flash information, talking on a cell phone. Id. at 82. Appellant looked at the

police car, “stepped a few feet back to a big brick pillar[,] and [stood] behind

it.” Id. Officer Saunders informed his partner, who was driving, that he saw

a suspect matching the description standing behind the pillar. Id. At this

point, Appellant “peeked out” and “right real quick” entered the Jamaican Way

store. Id. at 82, 86.

       Officer Saunders testified his partner made a U-turn, the officers parked

the police vehicle away from the store, and they entered the store with their

guns drawn. Id. at 83. As soon as Officer Saunders entered the store, he

saw Appellant leaning against the counter and talking on a cell phone. Id.

Appellant stood up and took a step back, but he then walked towards the

officers. Id. The officers instructed Appellant to show them his hands and lie

on the ground. Id. A quick pat-down of Appellant’s person revealed no gun;



____________________________________________


2  “[F]lash information is based on a report from the initial officers to
investigate the scene of a crime and is broadcast to other police units in the
district.” Commonwealth v. Jackson, 519 A.2d 427, 431 (Pa.Super. 1986).

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however, a store employee directed the officers to a nearby trash can where

they discovered a handgun inside. Id. at 90-91. Officer Saunders testified

he was later present when complainants positively identified Appellant. Id. at

91.

      Jerel Livingston testified that, on the day in question, he and his teenage

stepson, Phillip Holland, arrived at the Pepper Middle School parking lot at

approximately 4:50 p.m. to practice driving. N.T., 6/2/17, at 7-8. After about

thirteen minutes of his stepson driving, Mr. Livingston and his stepson

switched seats so that Mr. Livingston could drive and demonstrate how to

parallel park.   Id. at 9.   After Mr. Livingston demonstrated the parking

strategy “a couple of times,” he began putting the car into park so that his

stepson could again resume driving when a man approached and stood about

ten feet away. Id. at 9-10. Mr. Livingston positively identified the man in

court as Appellant. Id. at 10.

      Mr. Livingston testified Appellant said, “Give me my money, mother

fucker.” Id. Mr. Livingston testified he and his stepson were “in shock” and

did not move. Id. Appellant raised a silver gun towards the direction of Mr.

Livingston and his stepson, and he again said, “Give me my money, mother

fucker.” Id. at 11. Mr. Livingston and his stepson again did not move and, in

response, Appellant demanded money a third time, as well as fired a shot at

them. Id. Mr. Livingston and his stepson ducked down, and Mr. Livingston

stepped on the gas driving without raising his head for about four seconds.


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Id. As he sped out of the parking lot, he looked in his rear view mirror and

saw Appellant running towards the car. Id. He heard “two more shots [] ring

out.” Id. at 12.

      Mr. Livingston testified he drove down the street to a red light, and he

observed police vehicles with activated lights and sirens pass by, so he tried

to flag down a police officer. Id. However, the police apparently did not see

him, so he followed the police vehicles for approximately three quarters of a

mile at which point he arrived at the 8400 block of Lindbergh Boulevard. Id.

When he exited his car, he saw a body lying on the sidewalk.           Id.   Mr.

Livingston approached the police and informed them that he and his stepson

had just been fired at while in the school parking lot. Id. at 13. Mr. Livingston

provide the police with a description of the shooter. Id. at 15.

      Approximately twenty minutes later, officers transported Mr. Livingston

and his stepson to the Penrose Plaza shopping center where they positively

identified Appellant, who the police had in custody, as the man who had shot

at them in the school parking lot. Id. at 21-24. Mr. Livingston provided a

statement to the police, and at Appellant’s preliminary hearing on July 30,

2012, Mr. Livingston positively identified Appellant as the man who had shot

at him and his stepson at the school. Id. at 27-29. Mr. Livingston testified

that, prior to the day of the shooting on June 13, 2012, he had never seen

Appellant and he was not acquainted with him. Id. at 31.




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     Phillip Holland, who was Mr. Livingston’s stepson, testified he was at the

Pepper Middle School parking lot with Mr. Livingston on June 13, 2012, in

order to practice driving. N.T., 6/6/17, at 5. He substantially confirmed Mr.

Livingston’s testimony as to the fact that a man approached them, demanded

money, pointed a gun at them, and then fired the gun at them. Id. at 8-9.

Mr. Holland also confirmed that, on June 13, 2012, he and Mr. Livingston were

transported to the Jamaican Way store, where they both positively identified

Appellant as the man who had shot at them. Id. at 12. When asked whether

he recognized Appellant in court, which was four years after the crime, Mr.

Holland said, “No, I don’t know. I honestly don’t remember his face from that

day.” Id.

     Shawna Jordan testified that, on June 13, 2012, she was working at the

Jamaican Way store in the Penrose Plaza when, at approximately 5:30 p.m.,

Appellant walked quickly into the store. N.T., 6/2/17, at 33. As Appellant

walked past the store’s trash can, which was located by the front door, Ms.

Jordan heard “a thump.”     Id. at 35.    She clarified that it sounded as if

Appellant put something in the trash can. Id. at 36. Ms. Jordan testified

Appellant was “hyped” and asked her for chicken. Id. When police officers

came into the store instructing him to put up his hands, Appellant complied.

Id. She informed the police that she “heard a thump” when Appellant walked

past the trash can. Id.




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      Philadelphia Police Detective Brian Peters, who was assigned to the

homicide unit, testified that, on the evening of June 13, 2012, he was called

to the murder scene of Mr. Brown at the 8400 block of Lindbergh Boulevard.

Id. at 54. Witnesses at the scene informed Detective Peters there had been

a chase between two people whereby one person chased another. Specifically,

Detective Peters testified witnesses informed him that “[t]wo people were

running, they crossed over Lindbergh [Boulevard] and they had gone in the

area where the Pepper Middle School was [located], and then [on to] an

apartment complex.” Id. at 55. Detective Peters explained the chase was

confirmed by various 9-1-1 calls, a cell phone found on the path, a strike mark

to one of the signs inside the apartment complex, and reports from two

children who observed the chase. Id. at 74.

      Detective Peters traveled to the Jamaican Way store and arrived at 8:40

p.m. Id. at 59. He obtained the owner’s consent to search the property, and

he seized a handgun from the store’s trash can. Id. at 64. Detective Peters

testified the gun was operable, contained live cartridges, had been fired, and

was cocked and primed to fire again.     Id. at 67. Detective Peters took a

statement from Ms. Jordan and he learned the store had working security

cameras. Id. at 69-71.

      Philadelphia Police Detective James Dunlap, who was assigned to the

homicide unit’s digital imaging video response team, confirmed he evaluated

the Jamaican Way’s security system and retrieved video. N.T., 6/5/17, at 4-


                                     -7-
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13. The video compilation from June 13, 2012, was shown to the jury. Id.

at 16.

         Philadelphia Police Officer Horace Lopez testified he was at the scene of

Mr. Brown’s murder when a white sedan pulled up and two males exited. Id.

at 23.     One of the males, later identified as Mr. Livingston, informed the

detective a shooting had just occurred at the Pepper Middle School, and he

provided a description of the shooter. Id. at 24. Detective Lopez looked at

Mr. Livingston’s sedan and noticed bullet holes on the driver’s side door and

rear quarter panel. Id. He informed fellow police officers via radio of the

description of the suspect.      Id. at 24-25.    Detective Lopez confirmed he

transported Mr. Livingston and his stepson to the Jamaica Way restaurant

where they both positively identified Appellant as the man who had shot at

them in the school parking lot. Id. at 30-33.

         Philadelphia Police Officer Gary Guaraldo, who was assigned to the crime

scene unit, testified that, the day after the shooting, he went to the Pepper

Middle School and found three fired cartridge casings in the parking lot. Id.

at 80.      He examined the bullet holes in Mr. Livingston’s sedan, and he

explained to the jury that the bullets were fired into the sedan from the outside

of the vehicle. Id. at 88-107.

         Philadelphia Police Detective Francis Kane, who was assigned to the

homicide unit, testified he interviewed Mr. Livingston and his stepson at the

homicide unit at approximately 8:10 p.m. on June 13, 2012. Id. at 126-27.


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During the interview, Mr. Livingston drew a diagram of the Pepper Middle

School parking lot and marked the area where Appellant was standing when

he shot at Mr. Livingston and his stepson. Id. at 129. At trial, the diagram

was introduced as evidence. Id.

      Detective Kane testified the handgun seized from the Jamaican Way

store was a .9mm semi-automatic handgun, which based on ballistics was the

same caliber as the weapon used by Appellant in shooting at Mr. Livingston

and his stepson. Id. at 136. However, Detective Kane testified a .40 caliber

handgun was used in the murder of Mr. Brown. Id. at 137. He noted a .40

caliber fired cartridge casing was found at the scene of Mr. Brown’s murder.

Id. He testified “there’s no way the .9mm that [Appellant] had could have

been used to shoot the .40 caliber ammunition [that was used to kill Mr.

Brown].” Id. Accordingly, while the police ruled out Appellant as the shooter

in the death of Mr. Brown, Appellant was charged with various crimes in

connection with the shooting at Mr. Livingston and his stepson in the Pepper

Middle School parking lot. Id. at 137-139. Detective Kane testified three

separate guns were involved with regard to the shooting death of Mr. Brown

and the shooting at the Pepper Middle School. Id. at 138.

     The parties stipulated that if Police Officers Siranni and Jaconi were

called to testify they would confirm one firearm, a .40 caliber Glock 23, was

recovered from the murder scene of Mr. Brown. Id. at 170. Further, they

would testify the only fired cartridge cases found at the murder scene were


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.40 caliber casings. Id. at 171. The parties also stipulated that if Police Officer

Andrejczak were to testify he would indicate the firearm recovered by

Detective Peters from the trash can at the Jamaican Way store was a .9mm

Ruger, model P85, which was operable and loaded with three Wolf full melt

jacket cartridges. N.T., 6/6/17, at 24.

      Philadelphia Police Officer Robert Stott, who was qualified as an expert

in ballistics comparison and firearm identification, testified he examined

evidence from this case, as well as the murder case of Mr. Brown. Id. at 27-

28. He indicated the three .9mm fired cartridge casings, which the police

collected from the parking lot of the Pepper Middle School, were all fired from

the same gun.      Id. at 31.    Officer Stott cross-checked the three .9mm

cartridge cases and concluded they were fired from the .9mm Ruger handgun,

which the police found at the Jamaican Way. Id. He further testified a bullet

specimen and bullet jacket fragments seized from Mr. Livingston’s car after

the Pepper Middle School shooting indicated they were fired from the .9mm

Ruger handgun seized from the Jamaican Way. Id. at 33, 36.

      However, Officer Stott testified Mr. Brown was killed with a .40 caliber

handgun. Id. He indicated the seven .40 caliber fired cartridge casings that

were found at the homicide scene were all fired from the same .40 caliber

Ruger. Id. He testified only one firearm (a .40 caliber Ruger) was fired at

Mr. Brown’s homicide scene, and he opined the firearm used in Mr. Brown’s




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homicide was a different firearm than the one used in the shooting at the

Pepper Middle School. Id. at 53.

      The Commonwealth entered into evidence a certificate of non-licensure,

which indicated that Appellant did not have a valid or lawfully issued license

to carry a firearm in Pennsylvania. Id. at 62.

      Appellant testified in his own defense. Specifically, Appellant testified

that, on June 13, 2012, at around 5:00 p.m., he drove to the 8400 block of

Lindbergh Boulevard with a friend, Vernon McDonald. Id. at 75. Appellant

admitted he and Mr. McDonald were both carrying firearms and they were in

the area so that Mr. McDonald could purchase drugs. Id. at 76. Appellant

indicated he lent Mr. McDonald money for the purchase. Id.

      Appellant testified he exited the car to make a phone call while Jamal

Gregory and Mr. Brown entered the car to talk with Mr. McDonald. Id. at 76-

77.   Appellant indicated that, at some point, all of the other men exited the

car and “everybody started pulling guns out, shots fired, robbed me, chaos,

there [were] kids, people outside, and everybody running. And at the same

time right after that happened, I see one of the guys and I go chasing after

him.” Id. at 77-78. Appellant testified he began chasing Mr. Gregory through

the apartment complex and towards the Pepper Middle School. Id. at 80.

      Appellant indicated he thought Mr. Gregory entered the vehicle in the

Pepper Middle School parking lot, so he began yelling that he wanted his

money back. Id. He denied that he ran with or had his gun in his hand;


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however, he admitted that, when the driver of the vehicle bent down, he

thought the driver was going to sit back up with a gun, so Appellant began

firing his gun. Id. at 80-81. Appellant admitted he then ran to the Penrose

Plaza shopping center. Id. at 81.

       On cross-examination, when presented with 9-1-1 calls, Appellant

admitted various callers reported they saw Appellant holding a handgun as he

chased Mr. Gregory. Id. at 99.

       At the conclusion of all evidence, the jury convicted Appellant of the

crimes indicated supra in connection with the shooting at the Pepper Middle

School, and immediately following the jury’s verdict, Appellant agreed to a

non-jury trial on the charge of possession of a firearm prohibited. The trial

court convicted Appellant of the charge, and on August 18, 2017, Appellant

was sentenced to an aggregate of forty-five years to ninety years in prison.

Appellant did not file post-sentence motions, but Appellant filed a single,

timely notice of appeal.3 All Pa.R.A.P. 1925 requirements have been met.

____________________________________________


3 We note Appellant’s notice of appeal was docketed on September 25, 2017;
however, the record reveals that Appellant handed it to prison authorities on
August 30, 2017. Accordingly, pursuant to the prisoner mailbox rule, we deem
Appellant’s notice of appeal to be timely. See Pa.R.A.P. 121(a).
      Further, we note that Appellant filed a single notice of appeal listing both
lower court docket numbers. Our Supreme Court has held that “where a single
order resolves issues arising on more than one docket, separate notices of
appeal must be filed for each case.” Commonwealth v. Walker, ___ Pa.
___, 185 A.3d 969, 971 (2018). However, the Court in Walker declined to
apply the rule to the case before it, because to do so would run “contrary to
decades of case law from [the Pennsylvania Supreme Court] and the



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       On appeal, Appellant presents the following issues in his “Statement of

the Questions Involved”:

       A. Was the evidence insufficient to sustain guilty verdicts for
          attempted murder and aggravated assault, as there was
          insufficient evidence proving Appellant had the criminal specific
          intent to kill the complaining witnesses or to cause them
          serious bodily injury at the time of the shooting, as Appellant
          reasonably believed he was in immediate danger of death or
          serious bodily injury?
       B. Was the evidence insufficient to sustain the guilty verdict for
          robbery as Appellant did not have the specific intent to threaten
          or put the complainants in fear of serious bodily injury during
          the course of a theft?
       C. Was the evidence insufficient to sustain the guilty verdict for
          [possession of an instrument of crime] as although Appellant
          illegally possessed the firearm, he did not possess it with the
          intent to employ it criminally and only discharged his firearm
          after reasonably believing he was in immediate danger of death
          or serious bodily injury?

Appellant’s Brief at 7.

       Initially, we note that when considering a challenge to the sufficiency of

the evidence, the standard we apply is as follows:

       [W]hether 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 [that of] the fact-
____________________________________________


intermediate appellate courts that, while disapproving of the practice of failing
to file multiple appeals, seldom quashed appeals as a result.” Id. Although
the Court instructed that in all future cases, a failure to file a notice of appeal
for each lower court docket will result in quashal of the appeal, Appellant’s
notice of appeal was filed prior to the Walker ruling. Accordingly, Walker is
not controlling in the instant appeal, and we decline to quash Appellant’s
appeal.


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      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.

Commonwealth v. Johnson, 192 A.3d 1149, 1155 (Pa.Super. 2018)

(citation omitted).

      In his first claim, Appellant alleges the evidence was insufficient to

sustain his convictions for either attempted murder or aggravated assault as

to Mr. Livingston and Mr. Holland. Specifically, Appellant claims he was acting

in self-defense when he discharged his weapon at the Pepper Middle School,

and he did not have the specific intent to kill or cause serious bodily injury.

He contends the evidence reveals he shot at Mr. Livingston and Mr. Holland

because he reasonably thought one of them was a drug dealer who had just

robbed him, and he believed one or both of them were going to shoot at him.

Thus, he contends the use of force was justified since he reasonably believed

he was in danger of death or serious bodily injury.

      Appellant relies on the justification statute set forth in our Crimes Code

that permits the “use of force upon or toward another person…when the actor

believes that such force is immediately necessary for the purpose of protecting


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himself against the use of unlawful force[.]”     18 Pa.C.S.A. § 505(a).     In

Commonwealth v. Torres, 564 Pa. 219, 766 A.2d 342 (2001), our Supreme

Court explained:

      The use of force against a person is justified when the actor
      believes that such force is immediately necessary for the purpose
      of protecting himself against the use of unlawful force by the other
      person. See 18 Pa.C.S. § 505(a). When a defendant raises the
      issue of self-defense, the Commonwealth bears the burden to
      disprove such a defense beyond a reasonable doubt. While there
      is no burden on a defendant to prove the claim, before the defense
      is properly at issue at trial, there must be some evidence, from
      whatever source, to justify a finding of self-defense. If there is
      any evidence that will support the claim, then the issue is properly
      before the fact finder.

Id. at 345 (some citations omitted).

      To disprove a self-defense claim, the Commonwealth is required to

prove at least one of the following: “1) the accused did not reasonably believe

that he was in danger of death or serious bodily injury; or 2) the accused

provoked or continued the use of force; or 3) the accused had a duty to retreat

and the retreat was possible with complete safety.” Commonwealth v.

Hammond, 953 A.2d 544, 559 (Pa.Super. 2008).

      Under the Crimes Code, “[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.A. § 901(a).

“A person may be convicted of attempted murder ‘if he takes a substantial

step toward the commission of a killing with the specific intent in mind to

commit such an act.’” Commonwealth v. Dale, 836 A.2d 150, 153


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(Pa.Super. 2003) (citations omitted). “The substantial step test broadens the

scope of attempt liability by concentrating on the acts the defendant has done

and does not any longer focus on the acts remaining to be done before the

actual commission of the crime.” In re R.D., 44 A.3d 657, 678 (Pa.Super.

2012).

      Here, Appellant was convicted of attempted murder in the first degree.

“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). “The law permits the fact finder to infer

that one intends the natural and probable consequences of his acts.”

Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008). “The

offense of attempt with intent to kill is completed by the discharging of a

firearm at a person with intent to kill, despite the fortuitous circumstances

that no injury is suffered.” Commonwealth v. Mapp, 335 A.2d 779, 781

(Pa.Super. 1975).

      Under Pennsylvania law, “a person is guilty of aggravated assault if

he…attempts to cause serious bodily injury to another, or causes such injury

intentionally, knowingly[,] or recklessly under circumstances manifesting

extreme indifference to the value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1).

“Serious bodily injury” is defined as “[b]odily injury which creates a substantial

risk of death or which causes serious permanent disfigurement, or protracted




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loss or impairment of the function of any bodily member or organ.” 18

Pa.C.S.A. § 2301.

      “In order     to   sustain a conviction     for   aggravated assault, the

Commonwealth does not have to prove that serious bodily injury was actually

inflicted but rather that the Appellant acted with the specific intent to cause

such injury.”   Commonwealth v. Holley, 945 A.2d 241, 247 (Pa.Super.

2008) (citation omitted).     “A person acts intentionally with respect to a

material aspect of an offense when…it is his conscious object to engage in

conduct of that nature or to cause such a result[.]” 18 Pa.C.S.A. §

302(b)(1)(i). “As intent is a subjective frame of mind, it is of necessity difficult

of direct proof.” Commonwealth v. Matthew, 589 Pa. 487, 909 A.2d 1254,

1257 (2006) (citation omitted)). “The intent to cause serious bodily injury

may be proven by direct or circumstantial evidence.” Id.

      In the case sub judice, we conclude the Commonwealth sufficiently

established Appellant had the requisite intent for attempted murder in the first

degree and aggravated assault as to Mr. Livingston and Mr. Holland.             For

instance, the evidence reveals that, as Mr. Livingston and Mr. Holland sat in

the car in a school parking lot, Appellant demanded money, fired a shot in

their direction from twelve feet away, and fired additional shots as the victims

fled in their car. See Holley, supra (finding evidence sufficient to sustain

convictions for attempted murder and aggravated assault where the victim

testified the defendant fired a shot at her).


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       In concluding the Commonwealth adequately disproved Appellant’s

claim of self-defense, the trial court noted Appellant was not free from fault in

provoking the matter, and in fact, Appellant was the aggressor in the school

parking lot. Trial Court Opinion, filed 6/25/18, at 16. Also, as the trial court

noted, the Commonwealth proved Appellant had a duty and opportunity to

retreat from the school parking lot. Id. at 17. “It is by sheer luck, and the

quick reflexes of [Mr.] Livingston, that neither [he nor his stepson] were hurt

or killed.” Id. We find no merit to Appellant’s first claim.4

       In his next claim, Appellant contends the evidence was insufficient to

sustain his conviction for robbery as to Mr. Livingston and Mr. Holland.

Specifically, Appellant contends “there was no criminal intent to commit any

theft, much less a theft while using force or the threat of force.” Appellant’s

Brief at 19.     In this vein, Appellant argues the evidence reveals he was

“rightfully demanding his money back” and “simply asked for his own money

back” when he interacted with Mr. Livingston and Mr. Holland. See Appellant’s

Brief at 19.




____________________________________________


4 To the extent Appellant presents a mistake of fact defense (i.e., he did not
have the necessary mens rea as to Mr. Livingston and Mr. Holland as he
believed that he was shooting at Mr. Gregory), the only evidence supporting
the defense was Appellant’s own self-serving testimony, which the jury
rejected. Accordingly, we find Appellant is not entitled to relief. See
Johnson, supra (holding credibility determinations are for the fact finder).


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      With respect to the crime of robbery, the Crimes Code relevantly

provides the following:

      § 3701.
      (a) Offense defined.--
         (1) A person is guilty of robbery if, in the course of
      committing a theft, he:
                                        ***
           (ii) threatens another with or intentionally puts him in fear
      of immediate serious bodily injury[.]

18 Pa.C.S.A. § 3701(a)(1)(ii) (bold in original).

      “An act shall be deemed ‘in the course of committing a theft’ if it occurs

in an attempt to commit theft or in flight after the attempt or commission.”

18   Pa.C.S.A.   §   3701(a)(2).   To    sustain   a   conviction   under   Section

3701(a)(1)(ii), it is sufficient if the evidence demonstrates aggressive actions

that threatened the victim’s safety. Commonwealth v. Hopkins, 747 A.2d

910 (Pa.Super. 2000). The proper focus is on the nature of the threat posed

by the assailant and whether he reasonably placed a victim in fear of

“immediate serious bodily injury.” Commonwealth v. Rodriquez, 673 A.2d

962 (Pa.Super. 1996). A factfinder is entitled to infer that a victim was in

mortal fear when a defendant visibly brandished a firearm. Hopkins, supra.

      Here, in finding the evidence was sufficient to sustain Appellant’s

conviction for robbery, the trial court indicated the following:

            In the case at bar, both victims testified that [Appellant]
      approached their car and said, “Where’s my money, Mother
      Fucker?” and then repeated [the phrase] while holding a gun in
      the direction of the victims, in an attempt to take their money.

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      [Appellant] further confirmed [in his testimony] that these
      statements were made and that he did shoot at the victims.
      Although Appellant never received any money from the victims,
      his demands coupled with his pointing and shooting a firearm at
      them was sufficient to find him guilty of robbery. The threat posed
      by [Appellant] holding up the gun is enough to place the victims
      in immediate and serious fear of bodily harm or death. The
      shooting of said gun is further evidence that the victims were
      intentionally made to fear immediate serious bodily injury and/or
      death. The jury found the victims’ testimony to be credible. Thus,
      the evidence was sufficient to find [Appellant] guilty of robbery.

Trial Court Opinion, filed 6/25/18, at 19-20.

      We agree with the trial court’s sound analysis. Moreover, we note that,

in developing his appellate argument, Appellant improperly asks that we view

the evidence in the light most favorable to him, as opposed to the

Commonwealth as verdict winner. See Johnson, supra. The jury was free

to believe all, none, or part of Appellant’s testimony, particularly as it related

to the reasons he demanded money from and fired a gun at the victims. See

id. Simply put, Appellant is not entitled to relief.

      In his final claim, Appellant avers the evidence was insufficient to sustain

his conviction for possession of an instrument of crime under 18 Pa.C.S.A. §

907(a).   Specifically, while Appellant concedes he “illegally possessed a

firearm” and, thus, is guilty of the firearm offenses, he contends “the evidence

did not establish he had the intent to employ the firearm criminally.”

Appellant’s Brief at 21. Appellant specifically argues he “only used the firearm

in order to ward off what he believed to be an imminent threat to his own life.”

Id.


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      Under the Crimes Code, “[a] person commits a misdemeanor of the first

degree if he possesses any instrument of crime with intent to employ it

criminally.”   18 Pa.C.S.A. § 907(a).       An “instrument of crime” includes

“[a]nything used for criminal purposes and possessed by the actor under

circumstances not manifestly appropriate for lawful uses it may have.” 18

Pa.C.S.A. § 907(d).

      Here, in rejecting Appellant’s claim, the trial court indicated the

following:

            [Appellant] admitted that he pointed a gun and shot said
      gun at [Mr.] Livingston and [Mr.] Holland. He further admitted
      that he demanded money from the victims. Furthermore, both
      witnesses testified that [Appellant] approached them, demanded
      money at gunpoint and then shot at them. In light of this
      testimony, it was reasonable that the jury found that [Appellant]
      used an illegal firearm in the commission of a robbery. As stated
      above, [Appellant’s] self-defense justification was presented to
      the jury, who then chose not to believe [Appellant]. Therefore,
      they did not find that he reasonably believed that he was in
      immediate danger of death or serious bodily harm. As a result,
      the jury found that he meant to employ the gun criminally.

Trial Court Opinion, filed 6/25/18, at 20-21.

      We agree with the trial court’s sound analysis.    As with his previous

claim, in developing his appellate argument, Appellant improperly asks that

we view the evidence in the light most favorable to him, as opposed to the

Commonwealth as verdict winner.          See Johnson, supra.    We conclude

Appellant is not entitled to relief.

      For all of the foregoing reasons, we affirm.

      Affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/19




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