Com. v. Mitchell, S.

J-S19023-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

STEFAN MITCHELL

Appellant : No. 2243 EDA 2021

Appeal from the Judgment of Sentence Entered September 23, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0001086-2019

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

MEMORANDUM BY OLSON, J.: FILED JUNE 27, 2022

Appellant, Stefan Mitchell, appeals from the judgment of sentence

entered on September 23, 2021, in the Criminal Division of the Court of

Common Pleas of Philadelphia County. We affirm.

On January 26, 2019, Appellant was arrested and charged with

attempted murder, aggravated assault, several firearms offenses, and other

related crimes for shooting Tyquan Pate (Pate) 10 times after Pate refused to

purchase a firearm for Appellant.! At the conclusion of trial on June 6, 2021,

Appellant was found guilty of attempted murder, aggravated assault,

possession of a firearm without a license, possession of an instrument of

“ Former Justice specially assigned to the Superior Court.

1 We incorporate the trial court’s thorough recitation of the facts of this case

as if it were set forth in full in this memorandum. See Trial Court Opinion,

12/2/21, at 1-12.

J-S19023-22

crime, possession of a firearm on the public streets of Philadelphia, and

burglary.

On June 16, 2021, defense counsel presented a motion for judgment of

acquittal on certain charges that were not addressed at trial. The trial court

granted this motion and discharged Appellant on the following offenses:

discharge of a firearm into occupied structure, terroristic threats, simple

assault, recklessly endangering another person, and criminal trespass. On

September 23, 2021, the court imposed the following sentence: 10-20 years’

incarceration for attempted murder; 10-20 years’ incarceration for burglary

(concurrent to attempted murder); two and one-half to five years’

incarceration for carrying a firearm on the public streets of Philadelphia

(consecutive to attempted murder); seven years of reporting county probation

for possession of a firearm without a license (consecutive to attempted

murder); and, no further penalty for possessing an instrument of crime and

for aggravated assault. See Trial Court Opinion, 12/2/21, at 1-2.

Appellant filed a timely notice of appeal on October 5, 2021. The

following day, the trial court directed Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant

timely complied on October 27, 2021. The trial court issued its Rule 1925(a)

opinion on December 2, 2021.

Appellant’s brief raises the following questions for our review.

2 18 Pa.C.S.A. §§ 2502 and 901, 2702(a), 6106(a)(1), 907(a), 6108, and

3502(a)(1), respectively.

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J-S19023-22

Was the evidence insufficient to sustain the charges of attempted

murder and aggravated assault because the testimony of

complainant and witness, Aigner Cherry, were inconsistent?

Was the evidence insufficient to sustain the charges of attempted

murder and aggravated assault because there was no testimony

of a medical professional to injuries sustained by the complainant?

Was the evidence insufficient to sustain the firearms charges of

firearms not to be carried without a license, carrying firearms in

public, and possession of an instrument of crime because no

firearm was recovered, and no gunshot residue was located on

any recovered clothing[?]

Appellant’s Brief at 8 (complete capitalization omitted).

In his first issue, Appellant argues that “[t]here was insufficient evidence

to sustain the conviction[s for] attempted murder and aggravated assault

because of inconsistent testimony of Aigner Cherry [(Cherry), Appellant’s

girlfriend and sister of the complainant,] and [Pate, the complainant].” See

Appellant’s Brief at 12. The trial court rejected this argument in its Rule

1925(a) opinion and concluded that the Commonwealth introduced sufficient

evidence to prove the elements of attempted murder and aggravated assault

beyond a reasonable doubt. See Trial Court Opinion, 12/2/21, at 13-17. After

setting forth the correct standard of review, as well as the principles of law

identifying the legal elements of attempted murder and aggravated assault,

the trial court determined that the trial testimony of Cherry and Pate provided

sufficient evidentiary support to sustain Appellant’s convictions. After careful

review, we agree with the trial court’s conclusions and adopt its rationale as

our own. Accordingly, Appellant's first issue fails.

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J-S19023-22

In his second claim, Appellant contends that “[t]here was insufficient

evidence to sustain [Appellant’s] conviction[s for] attempted murder and

aggravated assault because there was no testimony of a medical professional

giving their expert opinion of ‘serious bodily injury.’” Appellant’s Brief at 12.

This claim is meritless.

We have described the elements of attempted murder as follows.

Criminal attempt is separately codified at 18 Pa.C.S.A § 901,

which states, “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).

Criminal attempt is a specific-intent crime. Thus, attempted

murder require[s] a specific intent to kill. Commonwealth v.

Robertson, 874 A.2d 1200, 1207 (Pa. Super. 2005) (“For the

Commonwealth to prevail in a conviction of criminal attempt to

commit homicide, it must prove beyond a reasonable doubt that

the accused with a specific intent to kill took a substantial step

towards that goal.”).

Commonwealth v. Palmer, 192 A.3d 85, 88 (Pa. super. 2018), appeal

denied, 204 A.3d 924 (Pa. 2019).

Moreover, our Supreme Court requires the following proof to convict a

defendant of aggravated assault.

A person may be convicted of aggravated assault graded as a first

degree felony 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” means “[b]odily injury which creates a substantial

risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily

member or organ.” 18 Pa.C.S.A. § 2301. “A person commits an

attempt when, with intent to commit a specific crime, he does any

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J-S19023-22

act which constitutes a substantial step toward the commission of

that crime.” 18 Pa.C.S.A. § 901(a). An attempt under

§ 2702(a)(1) requires a showing of some act, albeit not one

causing serious bodily injury, accompanied by an intent to inflict

serious bodily injury. Commonwealth v. Alexander, 383 A.2d

887, 889 (Pa. 1978).

“A person acts intentionally with respect to a material element 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). . . . The intent to cause serious bodily injury may

be proven by direct or circumstantial evidence. Commonwealth

v. Hall, 830 A.2d 537, 542 (Pa. 2003).

Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006) (parallel

citations omitted).

In this case, Pate testified that Appellant shot him multiple times and

the Commonwealth presented to the jury a stipulation between the parties

reflecting the gunshot injuries Pate sustained following Appellant’s armed

assault. Moreover, during his testimony, Pate showed the trial court and the

jury the gunshot wounds he sustained in his forearm, his left bicep, left torso,

back, left leg, hip, groin, buttocks, shin, and right leg. See Trial Court

Opinion, 12/2/21, at 6, citing N.T. Trial, 6/3/21, at 204-213. Pate’s testimony

easily established, beyond a reasonable doubt, that Appellant acted with an

intent to kill and inflicted serious bodily injury when he carried out his

near-lethal attack on Pate.?

3 Pate explained during his testimony that a bullet fired by Appellant remains

lodged near Pate’s spine and that he could become paralyzed if it is dislodged.

See Trial Court Opinion, 12/2/21, at 6, citing N.T. Trial, 6/3/21, at 214-213

and 224-232.

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J-S19023-22

Our rules of evidence permit opinion testimony where a _ witness,

qualified as an expert, possesses specialized knowledge beyond that of an

average person, where the expert’s specialized knowledge will assist the

factfinder to understand the evidence or determine a fact in issue, and where

the expert’s methodology is generally accepted in the relevant field. See

Pa.R.E. 702(a)-(c). These rules are understood to be permissive, not

mandatory, and Appellant has not cited case law that compels expert

testimony in this context. Where, as here, the facts in issue do not involve

specialized knowledge, expert testimony is not required. Pate’s testimony,

together with the display of his wounds at trial, provided a_ sufficient

evidentiary basis for the jury to find both an intent to kill and serious bodily

injury. Consequently, Appellant is not entitled to relief on his second claim.

In his third issue, Appellant asserts that the evidence is insufficient to

support his firearms convictions because the Commonwealth failed to prove

that he constructively possessed a firearm. See Appellant’s Brief at 17. In

its Rule 1925(a) opinion, the trial court carefully reviews the testimony at trial

and concludes that, “the evidence was sufficient [] to show that [Appellant]

constructively possessed a gun.” Trial Court Opinion, 12/2/21, at 19. We

concur in the trial court’s determination and adopt its rationale as our own.

Hence, Appellant’s third issue fails.

We have carefully reviewed the certified record, the submissions of the

parties, and the opinion of the trial court. Based upon our review, we conclude

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J-S19023-22

that Appellant is not entitled to relief. We have adopted the trial court’s

opinion as our own as to issues one and three and concluded separately that

Appellant cannot prevail on issue two. Because we have adopted the trial

court’s opinion in part, the parties are instructed to include a copy of the trial

court’s opinion with all future filings that pertain to our disposition of this

appeal.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Est

Prothonotary

Date: 6/27/2022

Circulated 06/03/2022 12:12 PM

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FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 9q97/ pr

CRIMINAL TRIAL DIVISION sue

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COMMONWEALTH OF PENNSYLVANIA. pe

> CP-51-CR-1086-2019

v. 2243 EDA 2021,

2346 EDA 2021

STEFAN MITCHELL

OPINION

1, ‘Procedural! History

On January 26, 2019, Defendant, Stefan Mitchell, was arrested and charged with

Aggravated Assault, Fitearms Not To Be Carried Without License, Discharge of A

Firearm Into Occupied Structure, Carry Firearms Public In Philadelphia, Possession

Instrument.of Crime With Intent, Terroristic Threats With Intent To Terrorize

Another, Simple Assault, Recklessly Endangering Another.Person, Burglary-

Overnight Accommodations; Person Present, Bodily Injury Crime, Criminal

Trespass- Breaking Into Structure, and Criminal Attempt-Murder. As a result of the

evidence presented to the jury, on June’6, 2021, Defendant was found guilty of

attempted murder, agpravated assault, possession of-a firearm without a license,

Possession of an instrument of crime, posséssion of a firearm on-the stréets of

Philadelphia, and burglary. Because some of the charges were not presented to the

jury, on June 16, 2021, defense counsel requested a Motion of Acquittal which the

court granted. On September 23, 2021, Defendant was sentenced to 1 0-20 years.

incarceration for criminal attempted murder, 10-20 years incarceration for burglary to

run concurrent fo attempted murder, 2% to 5 years incarceration for carrying a

- firearm to run consecutive to the criminal attempt murder,7 years probation as.to the

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firearms: not to be carried without a license, and no further penalty on the remaining

charges. Based on the jury’s finding and this court sentence, via the docket,

Defendant filed a notice of appeal.to Superior Court and a notice of appeal to

Commonwealth Court on October 5, 2021. The Court filed a 1925(b):Order on

‘October 6, 2021. On October 27,2021 Defendant filed Statements of Matters

Coinplained.on Appeal. Defendant's appeal was docketed on November 10, 2021 and

November 29, 2021, based on an issue of Defendant’s appeal béing sent to

Commonwealth Court and having-to be transferred back. The court's staff spoke with

‘the Appeals Unit of the Court of Common Pleas to get the appeal moved to the proper

court; the court staff responded that they will send the appeal to the Superior-Court.

Further, on October 19, 2021, the Commonwealth Court Ordered this maiter to be

sent to Superior Court.

Facts

‘On June 2,.2021, Stefan Mitchel! pled not guilty to the charges of Aggravated

Assault, Firearms Not To Be Carried Without License, Discharge of A Firearm Into

Occupied Structure, Carry Firearms Public In Philadelphia, Possession Instrument of

Crime With Intent, Terroristic Threats With Intent To Terrorize Another, Simple

Assault, Recklessly Endangering Another Person, Burglary-Overnight

Accommodations; Person Present, Bodily Injury Crime, Criminal Trespass- Breaking

into'Structure, ‘and Criminal Attempt-Murder. N.T. 06/02/21 at 12-14. Several days

before the incident, Defendant and Complainant, Tyquan Pate, en gaged in.a text

conversation. N.T. 06/03/21 at 162; 165-180. Complainant isthe uncle of

Defendant's son and ihe. brother of Defendant’s gitlfriend. Defendant’s text froma

2 ARK 2

“9671-810” number showed Defendant asking Complainant if he knew anyone who.

was 21 years of age who could purchase-a gun for him because.Defendant was under

the age of 21. N.T. 06/03/21 at 162-1635) 65. Mr, Pate agreed to:purchase the gun for

him. N.T. 06/03/21 at 162, Several days later, on January 22, 2019, Defendant was

getting dressed in his all black Allied Security-work uniform and badge when Mr.

Pate let Defendant know he was not going to purchase the gun for Defendant. N.T.

06/02/21 at 58-59; N.T. 06/03/21 .at 162. Mr, Pate reasoned that if anything were to

happen while-ysing the gun, he would likely be the one in trouble because the gun is-

‘attached to his name. N.T. 06/03/21 at I81. Defendant responded,“yo, you should’ve

kept it a hundred with me, and told me you aint want'to do Niggas. Not playing.

Niggas dying out here. You think Tm fuckin’ playing.” Jd, at 180, Mr. Pate

responded to his text with a laughing emoji.Jd. After teceiving ‘Mr. Pate’s'text

message with the emoji; Defendant responded with, “you think it’s funny? Ali right.

Cool, bro,” with an emoji with the sunglasses. Id, at 186. Mr. Pate responded “All

right, Cannon. You be safe,” meaning that was the end of the conversation. Id.

While receiving these text messages from Mr. Pate, Defendant was at-his

residence with his-girlfriend, complainant's sister, Ms. Cherry, whom reside together

with their son. N-T. 06/02/21 at-56. Ms. Cherry watched Defendant as the

correspondence unfolded between Defendant and her brother, Mr. Pate, and saw that

Defendant was-visibly angry. Id. at 59-60. After the correspondence with her brother,

‘Defendant, Stefan Mitcliell, told Ms. Cherry that he was: going to go shoot her

brother, Mr. Pate, because he feit disrespected. Id. at 61:70. Defendant then made Ms.

Cherry call Ker mother'to make sure she or anyone else would not be at the residence

4 ARR 3

with her brother. [d, 61-63, Similarly, Defendant demanded Ms. Cherry to give him

the keys to Mr. Pate’s residence located. at the 6500 block of North 17" Street,

Philadelphia, PA; this is the residence that he and his girlfriend previous! y resided, id,

at63-65, Though Defendant use to live at that particular residence; he never had a

key and always had to use Ms. Cherry’s key. NLT, 06/03/21 at 187-189, Ms. Cherry

réfised to give. Defendant the keys to the praperty. N.T. 06/02/21 at 65-66. He then

threatened Ms. Cherry, the mother of his son, by telling her he was going to. shoot the

window. Id, Ms, Cherry knew that Defendant had a firearm because she could hear

the clicking sound of the black glock being racked, Id. at 66. Upon hearing that

Defendant had a’gun, she told Defendant where the keys were. Jd. at.65. Moments

later, Defendant drove to Mr. Pate’s residence in-an Infinity G35 sedan. Id, at 69.

After Defendant left their shared residence, Ms. Cherry checked under the bed'to see.

if Defendant took the gun and saw that the firearm was gone. Id. at 105.

Mr, Pate was in his residence getting his dog, Pepper, ready for a walk. N.T,

06/03/21 at 161, Defendant unlocked the front door and walked inside the. louse, Id.

at 186-190. Mr. Pate. heard someone open the door and thought it-was his sister or

father. Id, at 191. When‘Defendant, still in his black work uniform, enters into. the

residence, heasks Mr. Pate if he wants to rurnble. Id, Mr. Pate ignores Defendant's

question, ‘walks by him, towards the front door, and starts to put the leash on Pepper.

Tdy-at 192-193. Defendant repeats the question asking if Mr. Pate wants to rumble. Id.

at 193. Mr. Pate gives in and'tells him: “okay, Come out side.” Id. Consequently, Mr.

Pate hears a pop, tims around, and then ‘realizes that Defendant, Stefan Mitchell, is

shooting him with a black semi-automatic handgun, Id, at 193. Mr. Pate tries.to duck

ARR 4

for cover as.soon ashe fealizes he is being shot. and raised his arm to protect his face.

Id. at 196. However, instead of ducking, for cove, Mr, Pate realizes there is.a hole'in

his jacket and he is falling over. Id, As Mr. Pate falls to the ground, Defendant

continues to shoot him: Jd, at 197. Mr. Pate is pleading with Defendant to stop. Id. at.

197. While begging him to stop, Defendant repeatedly tells Mr, Pate to “‘shut the fuck

‘up: Id, at 197-198. Defendant finally stops and tells Mr. Pate.if he tells anyone, he

will come back and shoot Mr, Pate’s family. Id. at 199.

Once Defendant leaves the residencé through the back door, Mr. Pate calls 911

and tells the dispatcher that. a light-skinned male, dressed in all black and wearing a

mask,’shot:him. Id. at 21 53219. Mr. Pate maintains he did not reveal Defendant’s:

identity ‘because:he was.just shot and thought Defendant may actually shoot his

family. Id. at. 215-217. Sergeant Marcus O’Shaugiinessy receives a report of the

shooting over the radio and, upon arrival, helps Mr. Pate into the police vehicle to be

transported to the hospital. N.T. 06/02/21 at 43. The other officers at the scene,

Detective James-Poulos, and his partner, Detective Murray, processed the scene of the

shooting, laid down ‘evidence markers, and: swabbed for DNA. Id. at. 12. Detective.

also took photos of the blood on the floor with multiple ‘bullet-holes in the ground

from. Stefan Mitchell's. gun. 1d. at’20. Moreover, the detectives found gun casings at

the scene which forensic scientist, Natalie Murphy, later confirmed were the gun

casings fired fromthe same gun. Id. at 140. Detective'also found unfired cartridges

from that same gun. Id. at 23-24:92. Further, Detective recovered Ring doorbell

camera footage from the incident showing Defendant in his security uniform exiting

an Infinity G35 sedan, then morvents later exiting the rear of the property. Id, at 40-

. Anes

45, Additionally, after executitig a search warrant at the Defendant's property,

Defendant's uniform items with his Allied Security badge were recovered from the

property.-Id. at 52. Further, after executing the search warrant for Mr: Pate's phone,

Detective recovered text messages of the exchange between Defendant and Mr, Pate,

which to the officer deemed to-be an issue about a fircarm, Id, at 5 9-60;68.

After being rushed:to the nearest hospital by police; Defendant was put into.a

medically induced coma: N.T. 06/02/21 at 43-44: Id, at 200-202. Once Mr. Pate was

out of the coma, the police spoke with him.at the hospital, but he was still too afraid

to tell the officers that it was Defendant who shot him because he was scared for the

safety of his family. N.T. 06/03/2021 at 217. After speaking with police, the officers

stepped out of the room, and Mr. Cherry, Mr. Pate’s-father and Defendant's son’s

grandfather, entered the hospital room to speak with him. ]d, at 217-218. Mr, Pate

tells his father that Defendant, Stefan Mitchell, shot him. Id. ‘at 218, Because of his

father urging him to do the ri ght thing and tell the truth, Mr. Pate Jets the police know

that it;was Defendant who shot him. Id. at 218-219. During his testimony, Mr. Pate

showed his scars-and gunshot wounds to the court and jury, with both the District

Attorney and Defense co unisel ‘standing next to the witness booth, Id. at 205. Mr. Pate.

showed the gunshot wounds to the forearm, left bicep, left torso, back, left leg, hip,

groin, butt, shin, and right leg. Id. at 204-213:. With the more private-areas, Mr. Pate

‘motioned to where he was shot but did not show the jury those wounds. Id. Further,

Mr. Pate disclosed that he has other life-long injuries, and there is stilt a bullet lod ged

riear his spine, and he can potentially be paralyzed if they moved the'bullet. Id, at

214-213; 224-232. After Mr. Pate’s testimony, the District Attomey read a stipulation

by and between counsel of the certified medical records as to Mr. Pate being shot ten

times and the injuries that resulted from the shooting with no ‘objection from Defense

counsel, N:T 06/04/21 at 28-30.

After leaving. Mr. Pate’s-tesidence, Defendant returned ‘back to the residence that

he shares with Ms. Cherry. N.T. 06/02/21 at 72, Defendant knocks on the window of

the tesidence, wearing the same work uniform, and climbs through the window to

enter into the résidence. Id, at.72-74, Defendant with panicked behavior-asks Ms..

Cherry to help him hide the gun in his waistband and to call his. grandmother. Id. at

73-74, Ms, Cherry maintains she does not know where the gun is today. Id. at 75.

Defendant then changed his clothes.and removes the gun from his waistband, Id, at

74-15, While Ms. Cherry dialed his grandmother and. handed. Defendant the phone,

she asked what happened. Jd. -at 75. ‘Defendant remained silent and then moments

‘Jater retorted, ‘he's still breathing.” Id, Defendant then asks. his. grandmother to come

‘and take him, Ms. Cherry, and theirson to his grandmother's house. Id, at 75-7693.

Once-at the grandmother's house, Defendant gathers his family members into the

bathroom one by. one to speak with them. Jd, at 76. Once a family member werit into

the bathroom to-speak:with Defendant, they left the bathroom shocked, quiet, with big

eyés. Id, 76-77. Ms. Cherry decides not to-call the police while at the grandmother’s

residence because she thinks that if Defendant can shoot his son’s uncle; then he-can

shoot his:son’s mother too. Id, at 77-78. While visiting her brother atthe hospital, she

speaks to the-police and gives them 8 different-account of their whereabouts because

‘Defendant coached her on what to say; she is stil Lafraid of Defendant because he

threatened her with killing her'and her whole family. 1d. 79-82;94-86;108. Defendant

' Agni

eventually tells Ms. Cherry what happened in her family home and how he shot her

brother, Id. at 82. However, later Ms. Cherry lets the: police know what tru ly

happened to her brother, Mr. Pate, because it is the right thing todo. Id. at 83.

While investigating Defendant, an officer spotted, Defendant in a Dodge Charger

with.a passenger who was exiting the.car and getting into Deféndant’s Infinity. N.T.

06/03/2021 at 125-126. Defendant was immediately arrested and later transported to

the police station where he spoke to the officers voluntarily. Jd. at 81. After speaking

with Defendant, he-admitted to owning the vehicle shown in the Ring camera video,

admitted to working for Allied Security; and described his uniform as a. dark jacket,

boots, and white shirt, Id. at 72-73. Further, there was-a search warrant executed for

Defendant's claimed vehicle, driver's license, and registration. showing proof that it

was, legitimately registered to Defendant: Id. at 78.

After the court colloquied Defendant on his rights to testify, Defendant gives his

testimony. N.T. 06/04/2021 at 3 4-40:60, Defendant rebuts the entirety of the

testimony given in’the case and asserts that he did not ask Mr, Pate fora gun but for

money to buy alcoho! fora party that he wanted to.throw. Id, at 73. Further, though.

Defendant admits that is him on the Ring camera video shown to the jury; there was a

third person, Rock, ‘who-Defendant claims was inside the house because of alleged

drug money that Mr, Pate owed him, and Rack shot Mr, Pate. Id. at 62-64. It was not

Defendant. Id. Moreover, the reason Defendant was at the property in question is to

givé Mr. Pate money to fix his debt with Rock. Id, However, Defendant alleges.the

drug money that Mr. Pate asks for in-the-text exchange is on Defendant’s second cell

phone-and not from the phone text thread that was presented to the jury. Id. al.64,

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Defendant never mentions.a. second phone to the police because they never asked him

if he had an additional phone. Id. at 91-93. Also, Defendant admits that he is on the

Ring camera video exiting the rear of the property and getting into his vehicle. Id. at

65. Defendant left the rear of the property, drove home, and told: Ms. Cherry, Mr.

Pate’s sister, that her brother had just been shot, but claimed to not know who shot

him or whether her brother was dead. Id, at. 66, The day after the shooting occurred,

Defendant.claims to have gone to the hospital with Ms. Cherry and tried to tell her

family what happened but could not because everyorie was crying, but Defendant did

disclose what happened to Mr. Pate to his family members. Id. at 68. Days later,

Defendant was arrested but did not-give his version of what happened because he was

receiving death threats from a restricted number, Id, at.68. If he told what happened,

they were going to-kill him. Jd. However, the first time he mentions this account is

before the jury and this trial court during his heating two years later. Id. at 90-91.

In contrast, Detective Poulos rebuts Defendant’s testimony by stating that the texts

recovered never showed Mr; Pate asking for a favor or money, never mentions

anything about drugs, nor there. was nothing discovered within his investigation that

showed that Mr, Pate had any issues with members of the community Id. at. 96-97,

Additionally, there is. no evidence of a third person being inside the properly nor

evidence of.a struggle besides Mr. Pate being: shot near the front door, Id, at 104-105.

Detective Poulos maintains that the Ring camera video footage was never edited. Id,

at 108. Further, there is no.recovery nor a mention of a second phone from Defendant.

id, at 98. Also, Defendant never mentions .to: Detective that he was being threatened

or harassed, Id. Mr. Pate-also rebuts Defendant’s.account by staling he never asked

Defendant for any money to pay off any alleged drug debt, there was never'a third

party in the property, there was never any struggle inside the préperty or even a

struggle with: Defendant. Td. at 111-113. Further, Mr. Pate is unaware of a second

phone that Defendant claimed to have-owned and of any hotel party that Defendant

was allegedly planning where he needed someone, over the age of 21 to:purchase

alcohol, but the texts were, in fact, showing Defendant asking him to purchase a gun.

Id. at 1103113. Additionally, Mr, Pate maintains that ho one would respond. in the text

messages the way Defendant did over-alcohol. Id,-at 114. After hearing all of the

evidence presented, the counsels’ closing arguments, and being-instructed of the law

by the court, the jury found Defendant, Stefan Mitchell, guilty of attempted murder,

aggravated assault, possession of ‘a firearm without a license, possession of-an

instrument of ctime, possession of a firearm on the streets of Philadelphia, and

burglary. N.T. 06/07/21 at 36-38.

Days later, after Defendant being found guilty, Defense counsel motioned for a

judginent of acquittal on the five charges that-were not presented to the jury which are

‘as follows: discharge of a firearm, terraristic threats, simple assault, recklessly

‘endangering another person, and criminal trespass into a structure, N.T. 06/16/21 at 4-

5, The court pranted the ‘motion. Id, at 8. On September 23, 2021, Defendant, Stefan

Mitchell, was before this court for sentencing. During the hearing, Defense counsel

makes argument.as.to how important family is to: Defendant including the fact that

family is showing support by coming to. Defendant's sentencing hearing: N.T.

09/23/21 at 8-14. However, Commonwealth rebuts the entirety of family. being

important with the fact that Mr. Pate, Defendant’s son’s uncle, Ms. Cherry,

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Defendant's child’s mother, and Mr. John Cherry, Defendant’s son’s grandfather, are

also like family and on the day of the shooting, Defendant décided to shoot family. Id.

at 17-21, Further, Mr. Cherry maintains that the unfortunate thing about this shooting

is that his.grandson, Ms. Cherry-and-Defendant’s son, will feel the brunt of

Defendant’s actions against family. Id, at 20. Moreover, Defendant knew he.bad a son

and was not thinking about how his actions would affect his son when he shot-his

son’s uncle, Mr. Pate. Id. After hearing the presentation from ‘both the District

Attomey and. Defense counsel, Defendant gave his allocution and stated that he is

ready to go home and will not retaliate and that he wants to be-a father to his son. Id,

at 32. However, only after his defense counsel leaned over to speak with Defendant as

‘he was making his allocution, Defendant-apologized to Mr. Pate and Mr. Cherry. Jd.

at33. After hearing everything presented during the sentencing hearing, the court

noted that it was interesting that Defense counsel presented how much Defendant

respected family; however, it was Defendant who got upset and decided to shoot

family, his girlfriend’s brother and his son’s uncle. Id. at 34-35, Further, the court was

even more cancerned hearing the audio of the video that was played to the jury with.

his son’s-uncle pleading for his life with Defendant telling him to “shut the fuck up.”

Id, at 35, Moreover, the court is aware that after the shooting, when Ms, Cherry asked

about the wellbeing of-her brother, he told her that he was'still alive. 1d. However, the

only reason Ms. Cherry never: reporled Defendant was because he threatened her and

her-family. with:death, which for the court is also Defendant’s:family, Id, at'35-36.

With taking into account the aggravating factors of the protection of the public, the

Defendant’s danger with propensity and the mitigating factor of Defendent’s

“ AR& 12

Til,

rehabilitative needs, the court sentenced Defendant to 10-20 years incarceration for

criminal attempted murder, 16-20 years incarceration for burglary to-run:- concurrent

to attempted ‘murder, 2 % to.5 years inearceration for carrying a firearm-to run

consecutive to the criminal attempt murder, 7 years probation as to the firearms not to

be carried without a license. Id, at 39. The court sentenced Defendant to no-further

penalty on the remaining charges: Id.

Matters Complained of on Appeal.

Appellant’s timely Rule 1925(b) Statement raises an allegation of error on the part of

the jury having found Defendant guilty. This court’s opinion will address these

allegations:

|. ‘The evidence was insufficient to sustain the charges of attempted murder.and

aggravated assault because. the testimony of Complainant was inconsistent.

4. The evidence was insufficient to sustain the charges of attempted:murder and

aggravated assault because the testimony of witness, Ai gner Cherry, was,

inconsistent.

4, ‘The evidence was insuf! ficient to sustain the charges of attémpted murder and

agpravated assault because there was na testimony of a medical professional to

any injuries sustained by the Complainant.

‘A. The evidence was insufficient to sustain the firearm charges of firearms not to be

carried without a license, discharge of a firearm into. an occupied structure,

carrying firearms in public and possession of an instrument-of a crime because.no

firearm was recovered and no-gunshot regidue was lacated on any-recovered

clothing.

" Are 13

TV, Standard

The Appellants claims brought forth are whether there was sufficient evidence to

have found Defendant, Stefan Mitchell, guilty of attempted murder, aggravated

assault, and firearm related charges. The standard in which.a Court views sufficiency

of evidence claims are as follows:

The standard we apply: in reviewing: the sufficiency of the-

evidence is whether viewing al! the evidence admilted at trial in

the light most. favorable. to the verdict winner, there is sufficient

avidence to enable the. fact-finder to find every element of the

ctime beyond a reasonable doubt. In applying [the above] test, we

may not weigh the evidence arid substitute our judgment for the

fact-finder, In addition, we note that the facts and circumstances

established by the Commonwealth need not preclude every

possibility of innocence. Any doubts regarding a defendant's guilt

may be-resolved by: the fact-finder unless:the evidence is so weak

aind inconclusive that as‘ matter of law no probability of fact may

be. drawn from the combined circumstances. The Commonwealth

ray sustain its burden of proving every element of the. crime

beyond.a reasonable doubt by means. of wholly circumstantial

eviderice. Moréover, 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

y. Troy, 2003 PA Super 340, 832 A.2d 1089, 1092 (2003)

(citations omitted), We emphasize that jt is not our role, as.an

appellaté court, to substitute our judgment for that ofthe fact-

finder, Commonwealth v. Lutes, 793 A2d 949, 960

‘(Pa.Super.2002), “It is the function of the jury to. evaluate

evidence adduced at trial to reach a. determination as to the facts,

and where the: verdict is based on substantial, if conflicting

evidence, it is conclusive oni appeal.”

Com. v. Reynolds, 835 A:24-720, 725-26:(2003). Thus, using this standard, the Court

will find that.there was sufficient evidence to ‘have found Defendant guilty;

Vv. _ Discussion.

13 ARR | 4

1, ‘The evidence is sufficient to sustain attempted murder-and aggravated assault

charges based on the testimonies from Complainant'and Ms. Chery.

Appellant argues that the evidence is not sufficient to sustain an attempted murder

and aggravated assault charge based off of inconsistent testimonies from

Complainant, Mr. Pate, and Ms. Cherry. The court disagrees. The Superior Court

has stated:

‘Criminal attempt is separately codified at 18°Pa.C.S. § 901, which

‘states, “A person corimits 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 P a.C.8. § 901 (a). Criminal

attemptis a specific-intent crime. Thus, attempted murder required-a

specific intent to kill. Commonwealth v. Robertson, 874 A.2d 1200,

1207 (Pa.Super. 2005) (“For the Commonwealth to prevail in a

conviction of criminal attempt to commit hotnicide, it must prove

beyond a reasonable doubt that the.accused with a specific intent to

Kill took a-substantial step towards that goal,”

Commonwealth-v, Palmer, 192 A.3d 85,88 (2018). Further, the Pennsylvania

Supreme Court has stated that a Defendant may be convicted of aggravated

assault by doing the following:

A person may be convicted of aggravated assault graded as a first

degreé felony if he “attempts to cause serious bodily injury to

another, or causes such injury intentionally, knowingly or récklessly

under circumstances manifesting: extreme indifference.to the value of

human life...” 18 Paes. § 2702(a)(1). “Serious bodily. injury”

means “[b]odily injury which creates a substantial risk of death or

which causes serious, permanent ‘disfigurement, or protracted loss or

impairnient-of the function of any bodily member or organ.” 18

Pa.C.S, § 2301,

Gom. v: Matthew, 909 A.2d 1254,1257 (2006). Further, the Pennsylvania

Supreme Court has held that “A person. acts intentionally with respect to.a

material element of an-offense when ;,. it is. his canscious-object to engage in

conduct.of-that nature or to cause sucha result...” 18 Pa.C.S. § 302(b)(1}(i)"” and

14. An: ee

ARR LS

ce En em

“the intent to cause serious bodily injury may be proven by di rect or

circumstantial evidence. Commonwealth v. Hall, 574 Pa..233, 830 A2d $37,542.

(2003).” Cor.v. Matthew, 909 A.2d 1254, 1257 (2006).

Here in this matter, Tyquan Pate, Complainant, atid Defendant; Stefan Mitchell,

engaged in a text conversation for Mr, Pate to.purchase Defendant. a gun. N.T..

06/03/21 at 162, Later Mr. Pate notified. D efendant that-he would not be

purchasing the gun, NLT. 06/02/21 at 58-59; N,T, 06/03/21 at 162. Once the text

message conversation concluded, Defendant told Ms. Cherry, Defendant's

girlfriend and Complainant’s sister, that he was going to-go to Mr, Pate’s

residence to shoot her brother and asked. Ms, Chetry. to-call her mother to-make

sure that no one.else was home. N-T. 06/02/21 at 61-63:70. Once Defendant

arrived at Mr, Pate’s residence, he asked Mr. Pate if he wanted to fight, and then:

proceeded to.shoot him several times. N.T. 06/03/21 at 192-197, While being

shot, Mr. Pate begs Defendant to stop, wh ich Defendant retorts “Shut the fuck

up.” Id, Defendant then threatened Mr. Pate with killing him and-his family if he

told who shot him which caused Mr. Pate to'pive a different description of the

man who shot him to the dispatcher. Id. at 215-217. After having left Mr. Pate’s

residence, Defendant returned back to the residence he shared:with Ms. Cherry

and told her that her brother, Mr, Pate, was still breathing. N.T. 06/02/21 at 72-75.

Once Ms, Cherry was interviewed by police, she pave'a different account of her

and Defendant's whereabouts because Defendant threatened to kil! her and.-her

family: Id. at 79-82;94-86;108. Ms. Cherry: asserted that if Defendant can shoot

his'sori’s uncle, then he could shoot his son's mother too. Id.

45°

ARK Ilo

It is clear, through the testimony of Ms. Cherry and Mr. Pate, that the evidence

was sufficient to conclude that Defendant, Stefan. Mitchell, committed the

criminal offense of attempted murder. Stefan had the intent to kill Defendant

which was proven through Ms, Cherry’s testimony. of Defendant telling her that

he was going to Kill her brother and instructing her-to call her mother to ensure

that no oné else would be.at the residence when Defendant was going to kil! him.

Further, itis clear through Mr. Pate’s testimony that Defendant took a substantial

step to kill Mr. Pate by after asking Mr. Pate if he wanted to fight, pulling out a

gun, and she oting him ten times all the while Mr, Pate is begging for his fife:

Additionally, through Mr. Pate’s testimony, and the evidence presented to the.

jury, it was-sufficient to convict Defendant of aggravated assault because

Defendant clearly caused Mr, Pate serious. bodily injury, as-shown through the

stipulated medical evidence and Mr, Pate’s testimony concerning his injuries.

Also, he acted with an extreme indifference to the value of human life when

shooting Mr. Pate as-he begged for his life while retorting for Mr, Pate to “shut

the fuck up.” Furthermore, Defendant does not specify what testimony of Ms.

Cherry and Mr, Pate was inconsistent which leaves the court to speculate.

However, the jury, the finder of fact, while passing upon the credibility of

witnesses arid the weight of the evidence produced, is free to believe all, part or

none of the evidence. Com. v. Reynolds, 835 A.2d 720; 725-26 (2003). Thus,

based on the testimony of Ms. Cherry and Mr. Pate, the jury found the evidence to

be sufficient to find Defendant guilty of both attempted murder and aggravated

AkR |F

assault regardless of Defendant claiming that there was testimony that-was

supposedly inconsistent.

. The evidence was stipulated and thus is sufficient because of lack of an objection.

Appellant argues that-the eviderice was insufficient to sustain the charges of

attempted murder and aggravated assault because there.was:no- testimony from a

medical professional as to any injuries sustained by Complainant. However, the.

court disagrees. The Superior Court has stated

Criminal attempt is separately codified at. 18 Pa,C.S. § 901, which

states, “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). Criminal.

attempt is a specific-intent crime. Thus, attempted murder required

a specific intent to kill. Commonwealth v. Robertson, 874 A2d

1200, 1207 (Pa.Super. 2005) (“For the Commonwealth to prevail in

a conviction.of criminal attempt to commit homicide, it must prove

‘beyond a reasonable doubt that the accused with a specific intent to

kill took.a substantial step towards that goal.”).

Commonwealth v. Palmer, 192 A.3d 85,.88 (2018).Further, the Pennsylvania

Supreme Court:has stated that'a Defendant may-be cotivicted of ‘aggravated

‘assault by doing the following:

A person may be. convicted of aggravated assault graded as a first

degree felony 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.8. § 2702(a)(1). “Serious bodily injury”

means “[blodily injury which creates a substantial risk of death or

which causes-serious, permanent disfiguiement, or protracted loss or

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

PaCS, § 2301.

Com. v, Matthew, 909 A.2d 1254, 1257 (2006). Further the Pennsylvania

Supreme. Court has held that ‘“’A person acts intentionally with respect to a

material elernent of:an offense when .. itis:his conscious object to engage in

conduct of that nature or to cause such aresult....” £8 PaCS. § 302(b)1)G)” and

“the intent to cause Serious bodily injury may be proven by direct or

circumstantial evidence. Commonwealth-v; Hall, 574 Pa. 233, 830'A.2d $37,542

(2003).” Com..v: Matthew, 909 A.2d 1254, 1257 (2006)

Here in this matter, Mr. Pate testified.to the injuries that he had incurred after

being shot by Defendant, Stefan Mitchell. After testifying: about the injuries, the

Commonwealth read a stipulation by and between counsels of the certified

medical records as to Mr. Pate’s injuries with no objection from defense counsel.

NT 06/04/21 at: 29-30. Furthermore, the court instructed the jury to regard a

stipulation between counsels as.a fact proven. NT. 06/07/21 at 31. Therefore, the

jury is-frée to believe all, part, or none of the evidence, coupled with the court’s

instruction regarding stipulations, and a lack of objection from defense counsel.

Therefore, there was sufficient evidence to prove Mr. Pate’s injuries were.

sustained from Defendant’s, Stefan Mitchell, actions,

3. There is sufficient evidence for-the firearm related charges.

Appellant argues thatthe evidence was insufficient to sustain all of the firearm

related charges because. “no firearm was recovered and no.:gunshot résidue was

located on any recovered clothing.” The court disagrees. For a defendant to be

convicted of discharge of a firearm into an occupied structure, they would have to

knowingly, intentionally or recklessly discharge a firearm from any location inte

an occupied structure. 18 Pa.C.S.A: § 2707s1 _ Also, fora defendant to be

convicted of firearms not to be carried without a license, a person would have to

carry “a firearm in any vehicle” or carry “a firearm concealed on or about his:

: ARR I

person, except in his place of abode or fixed place of business, without a valid and

lawfully issued license under this chapter commits a felony of the third degree,”

18 Pa.C.S.A. § 6106, Moreover, a defendant can be convicted of carrying firearms

in public if they carry a firearm in public in Phitadelphia without a license. 18

Pa.C.S.A. § 6108, Additionally, a Defendant can be convicted of possession of an

instrument ofa crime when they possess any instrument of a crime with intent.to

employ it criminally. 18 Pa.C.S.A, § 907, In order to establish possession for gun

charges, the Commonwealth needs to. prove active or constructive possession. n.

Coramonwealth v; Parrish, 191 A3d 31, 36.(2018). Constructive possession is

found by showing “’conscious dominion,’ meaning that the defendant has ‘the

power to control the contraband and the intent to exercise that control,’ (citation

and quotation omitted).” Id. at 36 (2018). Further, “‘to-aid application, we have

held that constructive possession maybe established by the totality of the

circumstances,'” Id. at 36 (2018).

Here in this matter, though Defendant was not found to have actually possessed a

gun, the evidence was sufficient enough to show that Defendant, Stefan Mitchell,

constructively possessed a gun. Firstly, Ms. Cherry testified that before Defendant

left their residence to go to her brother’s, Mr. Pate, home to-shoot him, she heard

a pun racking as: he threatened-her with shooting the window if she did not give

him the keys to her brother's residence. N.T, 06/02/21 at 61-70. Additionally,

once Defendant left, Ms. Cherry checked to see if the gun was still in the

residence and realized it was gone. Id, at 105. Further, not only did Mr, Pate see

and identify: Defendant as the shooter, Defendant himself, admitted that he was

* ARR 2°

the person in the Allied Security uniform seen parking his Infinity car near her

brother’s residence, entering the residence, and exiting out of the rear of the

residence, N.T. 06/04/2021 62-65, Moreover, once Defendant went back to the

residence that he and Ms. Cherry shared, ‘he asked her 1o help him get rid of the

gun. N-T. 06/02/21 at 73-75. Ms. Cherry witnessed Defendant pull a gun from his.

waistband; however, Ms. Cherry does not know the location. of the firearm. Id.

Thus, there'is clearly enough evidence using the totality of the circumstances to

show that Defendant constructively possessed a firearm that ultimately shot and

injured Tyquan Pate, Moreover, though Defense counsel claiins that there is not:

enough sufficient evidence to have found Defendant guilty of discharge of a

firearm into an occupied structure, the jury did not render a-verdict for that

charge, Defendant was not sentenced to that charge, and that charge was acquitted

based:on that charge not being presented to the jury. Furthermore, the jury, as the:

finder of fact, is free to: believe all, part, or none of the éviderice presented, As a

result of the testimony and alt of the evidence, the jury found Defendant guilty of

the firearin related charges.

Conclusion

For the aforementioned reasons, the Court should affitm Defendant’s, Stefan

Mitchell, convictions-of attempted murder, aggravated assault, possession ofa

firearm without a license, possession of an instrument of a crime, possession of a

firearm on the streets of Philadelphia, and burglary because there was sufficient

evidence presented to the jury, the fact finder, to have found Defendant guilty of

those offenses.

20 AR 71

Date: December 2, 2021

BY THE COURT,

StL

j 1

VINCENT L (SLINSON, J.

—_—"

oo ”

ARR 22