                              UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT

                              No. 00-6962

HIEP BUI,

                                               Petitioner - Appellant,

            versus

S. K. YOUNG, Warden of Wallens Ridge State
Prison,

                                                Respondent - Appellee.

Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Alexandria. Gerald Bruce Lee, District Judge.
(CA-99-1310-AM)

Submitted:    January 18, 2001              Decided:   January 24, 2001

Before WIDENER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Hiep Bui, Appellant Pro Se. Mary Kathleen Beatty Martin, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Hiep Bui seeks to appeal the district court’s order denying

relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 &

Supp. 2000).   We have reviewed the record and the district court’s

opinion and find no reversible error.   Accordingly, we deny a cer-

tificate of appealability and dismiss the appeal on the reasoning

of the district court.   Bui v. Young, No. CA-99-1310-AM (E.D. Va.

filed June 27, 2000; entered June 28, 2000).   We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

                                                          DISMISSED

                                 2


805 F.2d 1221
Fed. Sec. L. Rep.  P 93,049, RICO Bus.Disp.Guide 6466
SMOKY GREENHAW COTTON CO., INC., Plaintiff-Appellant,v.MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC., et al.,Defendants-Appellees.
No. 86-1440

Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Dec. 15, 1986.Rehearing Denied Jan. 20, 1987.
David Greenhaw, Odessa, Tex., for plaintiff-appellant.
Kenneth E. Johns, Jr., Guy S. Lipe, Dallas, Tex., for Merrill Lynch & Scott.
Appeal from the United States District Court for the Western District of Texas.
Before REAVLEY, JOHNSON, and DAVIS, Circuit Judges.
JOHNSON, Circuit Judge:

1
This case has now made its way to our Court for the third time.   See Smoky Greenhaw Cotton, Co. v. Merrill Lynch, 720 F.2d 1446 (5th Cir.1983) (Greenhaw I);  Smoky Greenhaw Cotton, Co. v. Merrill Lynch, 785 F.2d 1274 (5th Cir.1986) (Greenhaw II).  In Greenhaw II, the panel reversed the district court's directed verdict in favor of Merrill Lynch on Greenhaw's claim under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1961 et seq.

2
In remanding the case for a new trial of Greenhaw's RICO claim, the panel refused to decide the arbitrability of that claim, opting instead to leave the issue for the district court.  On remand, the district court concluded that Greenhaw's RICO claim was arbitrable and entered an order compelling arbitration of the claim.  Greenhaw appeals contending that civil RICO claims are not arbitrable.

3
Two panels of this Court have recently held that under facts similar to the facts in the instant case, civil RICO claims are arbitrable.   See Beck v. Merrill Lynch, 805 F.2d 1032 (5th Cir.1986);  Mayaja v. Bodkin, 803 F.2d 157, 162-66 (5th Cir.1986).  On the basis of Beck and Mayaja, we affirm the order of the district court compelling arbitration of Greenhaw's RICO claim.

4
One additional matter raised by this appeal requires comment.  In Greenhaw II, the panel refused to apply the Supreme Court's decision in Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), retroactively to compel arbitration of Greenhaw's commodities claims and breach of fiduciary duty claims.  Critical to the panel's determination was the fact that those claims had already been litigated and decided in a four-day jury trial.  Summarizing its conclusion, the panel noted that

5
the parties, with the benefit of relatively unlimited discovery and the Federal Rules of Evidence, had a fair fight in a fair forum.  It would be senseless to now require them to arbitrate issues that they have already gone to great time and expense to litigate.

6
785 F.2d at 1279.

7
The panel left open the question of whether Dean Witter's rejection of this Circuit's intertwining doctrine would apply retroactively to Greenhaw's RICO claim.  785 F.2d at 1281.  Greenhaw contends in the instant appeal that it does not and thus that the intertwining doctrine requires a jury trial of that claim in district court.

8
We disagree.  The equitable considerations that persuaded the panel in Greenhaw II not to apply Dean Witter to those claims already fully litigated are not present here.  Greenhaw's RICO claim has not been fully litigated.  The parties have not already "had a fair fight in a fair forum," 785 F.2d at 1279, brought to a fair conclusion on the RICO claim.  Refusing to apply Dean Witter to Greenhaw's RICO claim (unlike the commodities claims) will require a complete full-blown trial.

9
Furthermore, the policies underlying the intertwining doctrine, i.e., avoidance of piecemeal litigation and protection of the federal courts' jurisdiction over federal securities law claims, are inapplicable here.  Greenhaw's federal securities law claim was completely and finally resolved in Greenhaw II.

10
Given the absence of any equitable or policy consideration mitigating against retroactive application of Dean Witter to Greenhaw's RICO claim, we conclude that the district court properly required Greenhaw to arbitrate that claim.

11
AFFIRMED.


Court of Appeals
of the State of Georgia

                                                              ATLANTA, December 22, 2015

The Court of Appeals hereby passes the following order

A16D0160. LASWANDA L. HICKEY v. DAISY HICKEY .

     Upon consideration of the Application for Discretionary Appeal, it is ordered that it be

hereby DENIED.

LC NUMBERS:

2015V112403

                                      Court of Appeals of the State of Georgia
                                           Clerk's Office, Atlanta, December 22, 2015.

                                           I certify that the above is a true extract from the minutes of
                                      the Court of Appeals of Georgia.

                                           Witness my signature and the seal of said court hereto
                                      affixed the day and year last above written.

                                                                         , Clerk.


J-A18003-16

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

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT STEPHONE GILMORE,

                            Appellant                 No. 1060 MDA 2015

          Appeal from the Judgment of Sentence Entered June 9, 2015
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0001212-2014

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 24, 2016

        Appellant, Robert Stephone Gilmore, appeals from the judgment of

sentence of an aggregate term of 12½ to 25 years’ imprisonment, imposed

after a jury convicted him of attempted murder,1 aggravated assault -

attempted serious bodily injury,2 aggravated assault - causing bodily injury

with a deadly weapon,3 firearms not to be possessed without a license,4 and

____________________________________________

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 901(a).
2
    18 Pa.C.S. § 2702(a)(1).
3
    18 Pa.C.S. § 2702(a)(4).
4
    18 Pa.C.S. § 6106(a)(1).
J-A18003-16

recklessly endangering another person.5          Herein, Appellant challenges the

sufficiency of the evidence to sustain his convictions and alleges the verdict

is against the weight of the evidence.           He also raises challenges to the

admission of evidence, the application of the merger doctrine, jury

instructions, and the length of his sentence. After careful review, we affirm.

        The above-stated charges arose from an incident which took place on

February 13, 2014, where Appellant and an unidentified co-conspirator

attempted to kill Stephen Robinson (“Mr. Robinson”) by firing multiple shots

at him in the middle of the afternoon on a public street in downtown Carlisle,

Pennsylvania.       Mr. Robinson escaped unharmed.            Unfortunately, two

innocent bystanders, Jayonna Pope (“Ms. Pope”) and Ashley Brown (“Ms.

Brown”) were not so lucky.          Ms. Pope was struck in the head by a stray

bullet, and Ms. Brown was grazed by another bullet. Appellant and his co-

conspirator fled on foot, laughing, to a waiting car and then drove away.

Trial Court Opinion (“TCO”), 11/2/15, at 2-3.              Based on eye-witness

testimony and the identification of Appellant from a photo array, a warrant

was issued and Appellant was apprehended by the United States Marshall

Service Fugitive Task Force in Brooklyn, New York. Id. at 5.

____________________________________________

5
    18 Pa.C.S. § 2705.

                                           -2-
J-A18003-16

       Following a jury trial, Appellant was sentenced to the above-stated

term on June 9, 2015.6 Appellant filed a timely post-sentence motion, which

was denied by order of court dated June 16, 2015. Subsequently, Appellant

timely filed a notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.

       Herein, Appellant raises the following issues for our review:

       I.     Whether the evidence presented at trial was sufficient to
              convict Appellant of attempted murder, aggravated assault
              (attempted serious injury), aggravated assault (causing
              bodily injury with a deadly weapon), recklessly
              endangering another person ([Mr.] Robinson), and
              recklessly endangering another person ([Ms.] Pope)[?]

       II.    Whether the jury’s finding of guilt as it relates to the
              charges of attempted murder, aggravated assault
              (attempted serious injury), aggravated assault (causing
              bodily injury with a deadly weapon), recklessly
              endangering another person ([Mr.] Robinson), and
____________________________________________

6
  Appellant was originally sentenced on March 10, 2015, to an aggregate
term of 17½ to 45 years’ imprisonment, which included a sentence of 15 to
40 years’ imprisonment on count 1 – attempted murder. Appellant filed a
post-sentence motion requesting modification of his sentence based on
allegations that the sentence was unreasonable and excessive. The trial
court admitted that it “erroneously applied an illegally lengthy sentence
which was the result of a calculation error arising from the Commonwealth’s
failure to present the issue of serious bodily injury to the jury as to Count I,
Criminal Attempt – Criminal Homicide.” TCO at 16. The Commonwealth
subsequently filed a memorandum conceding that the maximum sentence
for Appellant’s attempted murder conviction is 20 years’ imprisonment. On
June 9, 2015, a re-sentencing hearing was held and the court re-sentenced
Appellant to an aggregate sentence of 12½ to 25 years’ imprisonment,
which reflected consecutive sentences for attempted murder (10 to 20
years), aggravated assault (1 to 2 years), firearms not to be possessed
without a license (1 to 2 years), and recklessly endangering another person
(6 to 12 months). Id.

                                           -3-
J-A18003-16

             recklessly endangering another person ([Ms.] Pope) was
             against the weight of the evidence presented at trial[?]

      III.   Whether the trial court erred in allowing the admission of
             text messages allegedly composed by [Mr.] Robinson[?]

      IV.    Whether the trial court erred when it instructed the jury on
             transferred intent[?]

      V.     Whether the trial court erred when it failed to merge
             aggravated assault (causing bodily injury with a deadly
             weapon)([Ms.] Pope) with attempted murder[?]

      VI.    Whether the trial court abused its discretion and
             committed reversible error when it sentenced Appellant to
             an aggregate sentence of 12 and one half to 25 years[?]

Appellant’s Brief at 7.

      We have reviewed the certified record, the briefs of the parties, and

the applicable law. Additionally, we have reviewed the thorough and well-

crafted opinion of the Honorable Albert H. Masland of the Court of Common

Pleas of Cumberland County. We conclude that Judge Masland’s extensive,

well-reasoned opinion accurately disposes of issues I through IV presented

by Appellant. See TCO at 1-16. Accordingly, with regard to these issues,

we adopt Judge Masland’s opinion as our own and affirm on that basis. We

also affirm the trial court’s decisions with respect to issues V and VI;

however, we add the following discussion regarding these claims.

      In issue V, Appellant asserts that the trial court erred when it failed to

merge the aggravated assault - causing bodily injury with a deadly weapon

charge with the attempted murder charge. It is well-settled that:

      A claim that the trial court imposed an illegal sentence by failing
      to merge sentences is a question of law. Accordingly, our
      standard of review is plenary.

                                     -4-
J-A18003-16

      In Commonwealth v. Gatling, 570 Pa. 34, 807 A.2d 890
      (2002) (plurality), our Supreme Court clarified the appropriate
      analysis for determining when convictions should merge for the
      purposes of sentencing:

          The preliminary consideration is whether the facts on
          which both offenses are charged constitute one solitary
          criminal act. If the offenses stem from two different
          criminal acts, merger analysis is not required. If, however,
          the event constitutes a single criminal act, a court must
          then determine whether or not the two convictions should
          merge. In order for two convictions to merge: (1) the
          crimes must be greater and lesser-included offenses; and
          (2) the crimes charged must be based on the same facts.
          If the crimes are greater and lesser-included offenses and
          are based on the same facts, the court should merge the
          convictions for sentencing; if either prong is not met,
          however, merger is inappropriate.

      Id. at 899.

      To determine whether offenses are greater and lesser-included
      offenses, we compare the elements of the offenses. If the
      elements of the lesser offense are all included within the
      elements of the greater offense and the greater offense has at
      least one additional element, which is different, then the
      sentences merge. If both crimes require proof of at least one
      element that the other does not, then the sentences do not
      merge.

Commonwealth v. Johnson, 874 A.2d 66, 70-71 (Pa. 2005) (emphasis

added).

       “Attempted murder is defined by reading the attempt statute, 18

Pa.C.S.A. § 901(a), in conjunction with the murder statute, 18 Pa.C.S.A. §

2502(a) (murder of the first degree).          Accordingly, the elements of

attempted murder are (1) the taking of a substantial step, (2) towards an

intentional killing.   See 18 Pa.C.S.A. §§ 901(1), 2502(a).”    Johnson, 874

A.2d at 71. “A person is guilty of aggravated assault if he attempts to cause

                                     -5-
J-A18003-16

or intentionally or knowingly causes bodily injury to another with a deadly

weapon.” 18 Pa.C.S. § 2702(a)(4) (emphasis added). It is clear that not all

of the required elements of aggravated assault – causing bodily injury with a

deadly weapon, are included in the statutory elements of attempted murder.

Specifically, Section 2702(a)(4) requires the use of a deadly weapon,

whereas the elements of attempted murder do not.          See 18 Pa.C.S. §§

901(a), 2502(a).   Thus, the crime of aggravated assault – causing bodily

injury with a deadly weapon, is not a lesser-included offense of attempted

murder, and the trial court was correct in not merging these two charges.

      Moreover, we note that it would not be proper to merge the two

charges in the present case, as the charges involved crimes against different

victims. Appellant fired multiple shots at the intended victim, Mr. Robinson,

in the presence of innocent bystanders, thereby exposing multiple people to

the risk of serious bodily injury or death. As the trial court explained in its

Rule 1925(a) opinion, Appellant was convicted of the attempted murder of

Mr. Robinson (not Ms. Pope), and his corresponding aggravated assault

conviction relating to Mr. Robinson was properly merged for sentencing

purposes. TCO at 17. The remaining aggravated assault charge for which

Appellant has been sentenced, and which is at issue here, is related to Ms.

Pope. There was no greater charge into which the conviction for aggravated

assault against Ms. Pope could merge. Thus, we agree with the trial court’s

conclusion that Appellant’s claim of error for failure to merge these two

charges “is simply factually erroneous.” Id.

                                     -6-
J-A18003-16

      Moreover, we add that Appellant may not escape responsibility for the

separate crimes he committed against the intended victim and bystanders.

As stated by our Supreme Court in Commonwealth v. Yates, 562 A.2d 908

(Pa. 1989), except for where the legislature unequivocally expresses a

contrary intent:   “[I]t remains the law of this Commonwealth that the life

and safety of each citizen is to be protected individually. There is no ‘two for

one discount’ in the Pennsylvania Crimes Code, and we will not permit

criminals to imply one through distortion of the common law merger

doctrine.” Id. at 911 (footnote omitted).

      Next, we address Appellant’s claim VI regarding the length of his

sentence. As discussed supra, Appellant was re-sentenced on June 9, 2015,

to an aggregate sentence of 12½ to 25 years’ imprisonment. That sentence

reflected consecutive sentences for attempted murder (10 to 20 years),

aggravated assault (1 to 2 years), firearms not to be possessed without a

license (1 to 2 years), and recklessly endangering another person (6 to 12

months). TCO at 16. Appellant contends that his sentence is unreasonable

and outside of the sentencing guidelines. He further alleges that the court

failed to consider the appropriate sentencing factors set forth in 42 Pa.C.S. §

9721(b).

      We note that Appellant’s allegations regarding sentencing relate to the

discretionary aspects of his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right.     An appellant

                                     -7-
J-A18003-16

      challenging the discretionary aspects of his sentence must
      invoke this Court’s jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine:             (1)
         whether appellant has filed a timely notice of appeal, see
         Pa.R.A.P. 902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and
         modify sentence, see Pa.R.Crim.P. 720; (3) whether
         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
         (4) whether there is a substantial question that the
         sentence appealed from is not appropriate under the
         Sentencing Code, 42 Pa.C.S.A. § 9781(b).

      Objections to the discretionary aspects of a sentence are
      generally waived if they are not raised at the sentencing hearing
      or in a motion to modify the sentence imposed.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and internal quotations omitted).

      Here, the record clearly reflects that Appellant filed a timely notice of

appeal, properly preserved his claim in his post-sentence motion, and

included a separate, concise Rule 2119(f) statement in his appellate brief in

compliance with the Pennsylvania Rules of Appellate Procedure. In his Rule

2119(f) statement, Appellant presents a detailed summary of his arguments

in support of his allegations that his sentence is excessive and unreasonable.

Upon review of that statement, we will consider the issues raised by

Appellant to constitute substantial questions to meet the fourth requirement

of the four-part test outlined above.

      However, we deem the underlying claims to be meritless.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. To constitute an abuse of
      discretion, the sentence imposed must either exceed the
      statutory limits or be manifestly excessive. In this context, an

                                        -8-
J-A18003-16

      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

                                     ***
      In determining whether a sentence is manifestly excessive, the
      appellate court must give great weight to the sentencing court’s
      discretion, as he or she is in the best position to measure factors
      such as the nature of the crime, the defendant’s character, and
      the defendant’s display of remorse, defiance, or indifference.

Commonwealth v. Perry, 883 A.2d 599, 602-603 (Pa. Super. 2005)

(citations omitted).

      We further note that:

      When imposing a sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant.      In particular, the court should refer to the
      defendant’s     prior  criminal  record,   his    age,  personal
      characteristics and his potential for rehabilitation. Where the
      sentencing court had the benefit of a presentence investigation
      report (“PSI”), we can assume the sentencing court was aware
      of the relevant information regarding the defendant’s character
      and weighed those considerations along with mitigating statutory
      factors. Further, where a sentence is within the standard range
      of the guidelines, Pennsylvania law views the sentence as
      appropriate under the Sentencing Code.

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (citations

and internal quotation marks omitted).

      Here, Appellant was clearly sentenced within the maximum range of

the guidelines. Additionally, we note that not only did the trial court have

the benefit of a PSI, it expressly stated that it considered all of the

appropriate relevant factors, as explained in the following portion of its Rule

1925(a) opinion:

                                     -9-
J-A18003-16

     [Appellant’s] crime was shocking. He opened fire with a deadly
     weapon during daylight hours on a populated downtown street in
     an attempt to kill Stephen Robinson. He wounded two innocent
     bystanders, one of whom he shot in the head. Per eyewitness
     testimony, he laughed as he fled the scene of his crime. His
     three victims each deserved to have their rights vindicated by
     the imposition of consecutive sentences and nothing less than
     the lengthy sentence the court imposed would do justice to the
     gravity of [Appellant’s] crimes. The court was in receipt of
     letters of support from [Appellant’s] family, but nothing therein
     can mitigate the gravity of [Appellant’s] actions. His sentence is
     appropriate.

TCO at 16-17.

     The   trial   court   also   made   the   following   statements   regarding

Appellant’s sentence at the re-sentencing hearing:

     [T]he nature of this offense, senseless, reckless, horrific all come
     to mind as I recall the testimony of the victims in this case, lead
     me to believe that a lengthy sentence is necessary not only from
     the perspective of public safety or from the perspective of the
     nature of this crime and not wanting to depreciate the
     seriousness of the crime, frankly, it may also be necessary,
     [Appellant], for you.

     …You are 20. Perhaps in your mid[-]thirties you will be out of
     your, what I would call based on this offense, violent lifestyle.
     Perhaps you will grow out of that, and that alone may protect
     society a little bit more. When people get into their thirties and
     forties, they generally don’t commit the violent crimes such as
     the one that you committed here you were found by a jury to
     commit.

     I hear the evidence too, and so when I say it was horrifying and
     senseless and reckless and all of those things, I heard that
     evidence and that’s the way I feel, and I’m going to sentence
     accordingly. Because anything less than a maximum sentence in
     this case, which will give you an aggregate of 12 and a half
     years to 25 years, anything less than that overall maximum
     would not be appropriate.

N.T. Re-Sentencing, 6/9/15, at 6-7.

                                     - 10 -
J-A18003-16

     After careful review of the record, we are satisfied that the trial court

gave appropriate consideration to the relevant factors before issuing

Appellant’s sentence. Thus, we ascertain no abuse of discretion.

     Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/24/2016

                                   - 11 -
 '1

·,
         .
      ,, .
                                                                              Circulated 09/30/2016 11:33 AM

         COMMONWEALTH                          : IN THE COURT OF COMMON PLEAS OF
                                               : CUMBERLANDCOUNTY, PENNSYLVANIA

              v.
                                               .
        ROBERTS. GILMORE                       : CP-21-CR-1212-2014

                   IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF

                                 APPELLATE PROCEDURE 1925

        Masland, J.1 November 2, 2015:--

              Defendant, Robert S. Gilmore, appeals his convictions and judgments of

       sentence for Attempted Murder, Conspiracy-AttemptedMurder, Aggravated Assault

       (Attempted Serious Injury), Aggravated Assault (Causing Bodily Injury with a Deadly

      Weapon), Recklessly Endangering Another Person (Steven Robinson), and Recklessly

       Endangering Another Person (Jayonna Pope).

              He complains of the following matters on appeal:

                    1. Whether the evidence presented at trial was sufficient to
                    convict [Defendant] of Attempted Murder.
                    2. Whether the evidence presented at trial was sufficient to
                    convict [Defendant)of Conspiracy-AttemptedMurder.
                    3. Whether the evidence presented at trial was sufficient to
                    convict [Defendant] of Aggravated Assault (Attempted
                    Serious Injury).
                    4. Whether the evidence presented at trial was sufficient to
                    convict [Defendant] of Aggravated Assault (Causing Bodily
                    Injury with a Deadly Weapon).
                    5. Whether the evidence presented at trial was sufficient to
                    convict [Defendant] of Recklessly Endangering Another
                    Person (Steven Robinson)..
                    6. Whether the evidence presented at trial was sufficient to
                    convict [Defendant] of Recklessly Endangering Another
                    Person (Jayonna Pope).
                    7. Whether the jury's finding of guilty as it relates to the
                    charge of Attempted Murder was against the weight of the
                    evidence presented at trial.
 CP-21-CR-1212-2014

              8. Whether the Jury's finding of guilty as it relates to the
              charge of Conspiracy-Attempted Murder was against the
              weight of the evidence presented at trial.
              9. Whether the Jury's finding of guilty as it relates to the
              charge of Aggravated Assault (Attempted Serious Injury)
              was against the weight of the evidence presented at trial.
              10. Whether the Jury's finding of guilty as it relates to the
              charge of Aggravated Assault (Causing Bodily Injury with a
              Deadly Weapon) was against the weight of the evidence
              presented at trial.
              11. Wl}ether the Jury's finding of guilty as it relates to the
             charge of Recklessly Endangering Another Person (Steven
              Robinson) was against the weight of the evidence presented
             at trial.          ·
              12. Whether the Jury's finding of guilty as it relates to the
             charge of Recklessly Endangering Another Person (Jayonna
             Pope) was against the weight of the evidence presented at
             trial.
             13. Whether the Court erred in allowing the admission of
             text messages allegedly composed by Steven Robinson.
             14. Whether the Court erred when it instructed the Jury on
             transferred intent in that a killing did not occur and the
             standard Jury instruction was substantially modified from its
             original form.
             15. Whether the Court abused its discretion in that the
             sentence imposed was unreasonable and excessive under
             the circumstances of the case.
             16. Whether the Court erred when· _it failed to merge
             Aggravated Assault (Causing Bodily Injury with a Deadly
             Weapon) (Jayonna Pope) wit_h Attempted Murder.

Statement of Matters Complained of on Appeal, filed July 8, 2015.

                                        r.   Facts

      On the afternoon of February 13, 2014 in downtown Carlisle! Pennsylvania, the

Defendant and an as yet unidentified coconspirator tried to kill Stephen Robinson. The

Defendant fired a gun repeatedly at Mr. Robinson, tracking him with the aim of his pistol

as the victim fled down the street. Mr. Robinson escaped without harm. Sixteen-year-

old Jayonna Pope was less fortunate. She was an innocent bystander struck in the

head by a stray bullet. Thankfully, she survived. Another innocent bystander, Ashley

                                             -2-
 CP-21-CR-1212-2014

 Brown, was also caught in the hail of gunfire and was grazed by a bullet. After firing at

 least 10 shots, the Defendant and the coconspirator fled on foot, both laughing, to a

waiting car and drove away.

         There were several witnesses to the crime. Fortuitously, for the Commonwealth

but not the Defendant, off-duty Pennsylvania Constable Kevin Preston was stopped in

his vehicle at a red light across from the shooters who were about 50 yards away.

Constable Preston observed the two firing repeatedly at an Indiscriminate rate while

tracking two fieeing intended victims with the aim of their semiautomatic handguns.

After the shooters ceased firing, they ran away from the scene In the direction of

Constable Preston while simultaneously trying to keep their pants from falling down and

putting their guns into the waistband of their pants. Part of this account was

corroborated by the lronSky video survelllance system that is deployed at that

intersection. The video depicted two African-American men running through the

intersection in the direction described by Constable Preston while trying to keep their

pants from falling down. Another witness, John Hopcraft, who observed the shooters

from a second story window in a building at the intersection facing the crime scene, also

testified that the shooters were two African-American men who fired approximately 1 O

shots.

         Constable Preston then saw the shooters enter a white vehicle which he

endeavored to follow, though his efforts were hampered by the fact that he was off-duty,

in a civilian vehicle, and not empowered to violate traffic laws In his pursuit of the

shooters. However, he has able to give chase long enough to get a clear view of the

face of one of the shooters whom he later Identified unequivocally from a photo array as

                                             -3-
 CP-21-CR-1212-2014

 the Defendant. When he could no longer safely pursue the· shooters' vehicle, Constable

 Preston stopped his vehicle and borrowed a cell phone from a bystander to call the

Carlisle Police Department regarding the shooting.

        Carlisle Police Officer Christopher Darhower was the first officer from the

Department to arrive on the scene. Shortly after arriving, he was alerted to an injured

victim inside the Buzz Express, a small convenience store at the scene of the crime.

Inside, Officer Darhower discovered Jayonna Pope with a gunshot wound to the head.

As a trained EMT, Officer Darhower immediately provided first aid. When supplemental

EMTs arrived, Officer Darhower exited the Buzz Express and began looking for another

possible victim. Just outside the store, he spoke to Ashley Brown·, another bystander,

who had been grazed by a bullet. He examined her to verify that she was not seriously

injured and then moved on to help tape off the crime scene and begin to interview

witnesses.

        Officer Darhower observed two males walklng through the area and stopped

them for questioning. One of those males was later determined to be the intended

victim, Stephen Robinson. At the time, Mr. Robinson was uninjured but also

uncooperative and refused to answer questions. Officer Darhower was then called

away from the scene to assist in a lockdown of the Carlisle Hospital as there were

reports that one of the shooters may have been sending text messages to Jayonna

Pope.

        As noted by the trial testimony of Detective Freedman of the Carlisle Police

Department, the investigation of this case was marked by resistance and lack of

cooperation from witnesses and some victims because "[a] lot of people did not want to

                                            -4-
 talk about anything because of the fear involved of retallatton." Notes of Testimony,

 January 28, 2015 at 323 (hereinafter N. T., 1 /28/2015 at_). Despite the refusal of

 cooperation of both Jayonna Pope and Stephen Robinson, Detective Freedman was

 able to get a tip leading him to an address that, through investigation, he would learn

 had last been rented by Robert Gilmore. That Information allowed the Detective to

 compile a photo array that included the Defendant's picture which allowed Constable

 Preston to make an immediate and unequivocal identification of the Defendant as the

shooter whose face he had seen. Based on that evidence, a warrant was issued for the

Defendant's arrestand he was subsequently apprehended by the United States

Marshall Service Fugitive Task Force in Brooklyn, New York.

       At trial, both Jayonna Pope and Stephen Robinson were unable to identify the

Defendant as the shooter. Ms. Pope testified that on the day of the shooting she saw

two black males that she didn't recognize near the Buzz Express before she was shot.

She could not identify her shooter, but when asked whether it was Robert Gilmore who

shot her she said:

              No, It couldn't have been. I didn't see him there. I know him.
              He is a very close friend of mine. He used to be at my house
              all the time. We were inseparable. You could never take us
              apart. He was not there. I was seeing two black males that I
              had never seen them before.

N.T., 1/28/2015 at 405-06.

       The Commonwealth declined to cross examine Ms. Pope and the court does not

now ascribe any evil motive to her testimony though it was clearly discredited by the

jury. Rather, the court reads this as the testimony of a crime victim who cannot identify

her assailant and who, due to the bonds of friendship, cannot accept that she may have

                                            -5-
 CP-21-CR-1212-2014

 been the accidental victim of a crime committed by her rrlend, the Defendant, despite all

 the evidence to the contrary.

        On the other hand, the court finds it hard   not to characterize the testimony of the ·
 intended victim, Stephen Robinson, as anything other than intentionally unreliable and

 motivated by a misguided sense of criminal ornerta and a malicious desire to extract

personal vengeance against the Defendant. Throughout his testimony, Mr. Robinson

was evasive and equivocatinq, claiming he had no memory of the shooting but then

later recalling details. He claimed the Defendant was not one of the shooters, but

instead the shooters were alternately two white men or a white man and a Hispanic man

that he did not recognize. He further testified that he was not the intended target of the

shooting. This testimony, however, was thoroughly impeached by the text messages

Mr. Robinson sent immediately after the shooting to multiple recipients wherein he

claimed that he was the target of the shooting. When asked by one of the text

recipients how he would respond to the shooting, his response was. "Get em." N.T.,

1/27/2015 at 212-13; Commonwealth Ex. 18. For his part, Mr. Robinson explained

away the text messages as nothing more than boastful falsehoods Intended to impress

women who liked so-called bad boys.

       Neither the jury nor the court were Impressed. The verdicts demonstrate the

jury's rejection ?f Mr. Robinson's testimony. Instead, they chose to believe the

objective, contemporaneously written text messages which prove that Mr. Robinson

knew he was the Intended target of the shooting and that he intended to exact his own

revenge, and which amply explained his refusal to cooperate with the Investigative

authorities and prosecution. Even in court, Mr. Robinson testified that if he had believed

                                            -6-
 CP-21-CR-1212-2014

 the Defendant had tried to kill him, "we'd have issues that would have already been

 dealt with probably." N.T., 1/27/2015, at 213.

        In light of the credible evidence presented, including the unequivocal positive

 eyewitness identification by Constable Preston, the corroborating testimony of Mr.

 Hopcraft, and the objective evidence of the video surveillance camera and Mr.

 Robinson's text messages, the jury found the Defendant guilty of all charges.

                                      II. Discussion

       As previously recited, the Defendant alleges sixteen errors for appellate review.

The matters may-be analyzed In six categories: challenges to the sufficiency of the

evidence, challenges based on the weight of the evidence, an evldentiary claim, an

erroneous jury instruction regarding the transferred intent doctrine, a challenge to the

length of sentence, and a challenge to the erroneous application of the merger doctrine.

                             A. Sufficiency of the Evidence

       "The standard of reviewing the sufficiency of the evidence is whether the

evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed

in the light most favorable to the Commonwealth as the verdict winner, is sufficient to

support all the elements of the offense beyond a reasonable doubt." Commonwealth v.

Strouse, 909 A.2d 368, 368-69 (Pa. Super. 2006). "The Commonwealth need not

preclude every possibility of innocence or establish the defendant's guilt to a

mathematical certainty." Commonwealth v. Btotnerson, 888 A.2d 901, 904 (Pa. Super.·

2005). "The finder of fact-here, the jury-exclusively weighs the evidence, assesses

the credibility of witnesses, and may choose to believe all, part, or none of the

                                            -7-
 evidence." Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011) (internal citations

 omitted).

                                    1. Attempted Murder

        A person commits 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). To establish Murder in First Degree, the Commonwealth must prove

 the Defendant "acted with a specific intent to kill; that a human being was unlawfully

 killed; that the person accused did the killing; and that the killing was done with

deliberation." Commonwealth v. Smith, 861 A.2d 892, 895 (Pa. 2004). Specific Intent

may be established through circumstantial evidence, such as the use of a deadly

weapon on a vital part of the victim's body. Commonwealth v. Ramtahal, 613 Pa. 316,

33 A.3d 602, 607 (Pa. 2011 ). Malice also may be inferred from the use of a deadly

weapon upon a vital part of the victim's body. Id. at 607-08.

       Viewed in the light most favorable to the Commonwealth, the evidence presented

at trial is sufficient to prove that the Defendant acted with the specific intent to kill and

malice by firing a handgun repeatedly at Mr. Robinson while tracking him with his aim

as Mr. Robinson fled for his life. By firing upwards of ten shots, the Defendant clearly

took a substantial step towards killing Mr. Robinson. The volume of shots also tends to

show the Defendant acted with the specific intent to kill . These facts were established

by the credible eyewitness testimony of Constable Preston. Further, Mr. Robinson's

contemporaneous text messages showing that he knew he was the intended target of

the shooting also support that the Defendant acted with the specific Intent to kill. For
    CP-21-CR-1212-2014

    these reasons, the jury's verdict of guilty for the crime of Attempted Murder is supported

    by sufficient evidence.

                                2. Conspiracy-Attempted Murder

           The Defendant argues that his conviction for Conspiracy-Attempted Murder is not

    supported by sufficient evidence. This Issue is moot as Defendant's conviction as to

    this count was dismissed by court order dated March 10, 2015.1

                      3. Aggravated Assault (Attempted Serious Injury)

           To establish Aggr~vated Assault (Attempted Serious Injury), the Commonwealth

    must prove the Defendant attempted "to cause serious bodily injury to another, or

    cause[d) such rnjury Intentionally, knowingly or recklessly under circumstances

    manifesting extreme indifference to the value of human life .... " 18 Pa.C.S. §

    2702(a)(1 ). Here, the Defendant fired several gunshots at Mr. Robinson while tracking

    him with his aim as Mr. Robinson ran away. By doing so, he clearly took a substantial

step towards seriously Injuring Mr. Robinson. The fact that the Defendant fired these

gunshots in daylight and in the presence of several innocent bystanders further proves

that he behaved recklessly and with an extreme indifference to human life. As such, the

jury's guilty verdict to this count was supported by sufficient evidence. The Defendant's

objection, that Mr. Robinson testified that the Defendant was not the shooter, has no

merit as the jury clearly found Mr. Robinson's testimony to that effect to be not credible.

As always, the jury may choose to believe all, part, or none of the evidence. Sanchez,

36 A.3d at 39 (Pa. 2011).

1 See 18 Pa.C.S. §906 ("A person may not be convicted of more than one of the inchoate crimes of
criminal attempt, criminal sollcttatton or criminal conspiracy for conduct designed to commit or to
culminate In the commission of the same crime.").
 CP-21-CR-1212-2014

        4. Aggravated Assault (Causing Bodily Injury with a De~dly Weapon)

        To establish this charge, the Commonwealth must prove the Defendant

"attempt[ed] to cause or intentionally or knowingly cause[d) bodily injury to another with

a deadly weapon ... " 18 Pa.C.S. § 2702(a)(4). The Intent to cause bodily injury to one

victim may be transferred to establish the intent element of a crime committed against

an unintended victim. 18 Pa.C.S. § 303(b)(1). Here, the Defendant shot a handgun

repeatedly at his intended victim resulting in his unintended victim, Ms. Pope, .being shot

in the head. Clearly, that constitutes a bodily injury caused by? deadly weapon. And,

just as above, Ms. Pope's testimony that the Defendant did not shoot her was simply

discredited by the jury. As such, the jury's verdict for this count of aggravated assault

was supported by sufficient evidence.

          5. Recklessly Endangering Another Person (Stephen Robinson)

       "A person commits a misdemeanor of the second degree if he recklessly

engages in conduct which places or may place another person in danger of death or

serious bodily Injury." 18 Pa.C.S. § 2705. Here. the Defendant fired numerous rounds

in the direction of Mr. Robinson during daylight hours on a populated city street. In

short, he recklessly placed Mr. Robinson In danger of death or serious bodily injury, and

the Jury's verdict was supported by sufficient evidence.

            6. Recklessly Endangering Another Person (Jayonna Pope)

      Here, Ms. Pope was on the same street in the vicinity of Mr. Robinson when the

Defendant opened fire. By trying to shoot Mr. Robinson among innocent bystanders

that Included Ms. Pope, the Defendant's actions were manifestly reckless and placed

                                           -10-
 CP-21-CR-1212-2014

 Ms. Pope in danger of death or serious bodily injury. The jury's verdict of guilty for this

 count was supported by sufficient evidence.

                                8. Weight of the Evidence

        The Defendant contends that the guilty verdicts discussed, supra, were against

the weight of the evidence. Our Superior Court has stated:

              An allegation that the verdict is against the weight of the
               evidence is addressed to the discretion of the trial court. Our
               Supreme Court has explained that appellate review of a
              weight claim Is a review of the exercise of discretion, not of
              the underlying question of whether the verdict is against the
              weight of the evidence. A motion for new trial on the
              grounds that the verdict is contrary to the weight of the
              evidence, concedes that there is sufficient evidence to
              sustain the verdict. Thus, the trial court is under no obligation
              to view the evidence in the light most favorable to the verdict
              winner. A new trial should be awarded when the jury's
              verdict is so contrary to the evidence as to shock one's
              sense of justice and the award of a new trial Is imperative so
              that right may be given another opportunity to prevail.
              Stated another way, ... this Court has explained that the
              evidence must be so tenuous, vague and uncertain that the
              verdict shocks the conscience of the court.

Commonwealth v. Sullivan, 820 A.2d 795, 805-06 (Pa. Super. 2003) (citations and

internal quotation marks omitted).

       Rather than discuss each count individually,'the court will simply state that after

hearing all the evidence at trial, none of the verdicts shocked our sense of justice or

caused us to fall out of our chair. A new trial is not necessary. It is respectfully

submitted that this discretionary determination not be disturbed on appeal.

                            C. Admission of Text Messages

       "The admission of evidence ls within the sound discretion of the trial court and

will be reversed only upon a showing that the trial court clearly abused its discretion."

                                            -11-
    Commonwealth v. Mitchell, 902 A.2d 430, 452 (Pa. 2006). At trial, Defendant's counsel

    objected to the admission of Mr. Robinson's text messages on the basis that they were

    improperly authenticated. At the outset, the court acknowledges that the authentication

    of cell phone text messages can be problematic where the authorship of the messages

    is uncertain. See Commonwealth v. Koch, 103 A.3d 705 (Pa. 2014). However, where,

· as here, authorship of the messages is admitted, authentication may be established by

traditional evidentiary means. The Rules provide, in relevant part:

                   (a) In General. To satisfy the requirement of authenticating
                   or identifying an item of evidence, the proponent must
                   produce evidence sufficient to support a finding that the item.
                   is what the proponent claims it is.                    ·
                   (b) Examples. The following are examples only-not a
                   complete list--of evidence that satisfies the requirement:
                   (1) Testimony of a Witness with Knowledge. Testimony that
                   an item Is what it is claimed to be.

Pa.R.E. 901 (emphasis added).

          As previously noted, Mr. Robinson was a reluctant and uncooperative witness.

When confronted with the text messages copied from his cell phone, he equivocated as

to whether he was the author. However, he did admit to authoring the text messages

sent to a woman, known as "Ride," wherein he discussed being the target of the

shootlng.2 Though he repudiated the veracity of the statement made in the text

2
    Mr. Robinson had the following exchange with the District Attorney:

          Q I'm showing you what's been marked as Commonwealth's Exhibits No. 12 and 13 which are
          copies of texts taken from your phone. It says here, They Just tried to kill me, lol. Yoo s-t-f-u were
          you with Jayonna? She walked past me and them nlggas shot in my direction and hit her. That's
          so crazy. Who was It? You didn't get hit at all? Nah, I ain't get hit. They shot a lot of times, but I
          ain't get hit. My feet was fast, lol. Yo, that's crazy. Glad you're okay. Hope Jay Is too. Yeah, I'm
          good. I talked to her mom. I see her when I can. She's gonna be okay? She's In surgery.

          A Yeah, I was trying to-· that was what - you see why I put that, that. that, that caption. I mean,
          that's a female.
                                                      -12-
 CP-21-CR-1212-2014

 messages, he did admit to being the messages' author. Accordingly, Mr. Robinson's

 testimony as a witness with knowledge satisfied any authentication requirement.

         Further, any hearsay concerns are also allayed as Mr. Robinson was personally

 confronted with the statements in court before the jury. Thus, the Defendant had the

 opportunity to challenge the truth of the matter asserted in those messages by cross

 examining Mr. Robinson. Indeed, defense counsel attempted to confront those texts,

 but, given Mr. Robinson's machismo-laced bravado, counsel's efforts were Ill-fated from

 the start.

         For these reasons, the court submits it did not err in admitting the text messages

Into evidence.

                                        D. Transferred Intent

         Defendant argues that the court erred by instructing the jury on transferred intent

where no killing occurred and where the court substantially altered the standard jury

instruction. In this case, the issue of transferred intent arose to establish the element of

intent for Aggravated Assault (Causing Bodily Injury with a Deadly Weapon) as to

Jayonna Pope, because she was an unintended victim of the Defendant's attempt to

murder Stephen Robinson.

        Q Ride?

        A Yeah, Ride, that's a female. At that time I was In a relationship with somebody. So, yeah, I was
        trying to make it seem like I was the one who got shot at, like little points with that female
        because, you know, she llkes things like that. She likes bad guys. So, maybe she would look at
        me like, oh, this Is a bad guy, maybe I get the buns or something like that, no disrespect, or
        something like that. So, that's why. I mean, but that doesn't mean that was the truth. Yeah, I told
        that female a lot of lies.

        THE COURT: I'm sorry, you said you told that female a lot of lies?

        THE WITNESS: I told her a lot of lies because I was In a relationship.

N.T., 1/27/2015 at 194-95.
                                                  -13-
 CP-21-CR-1212-2014

       The standard jury instruction relating to transferred Intent reads:

               The Commonwealth has alleged that while the defendant[s)
               [intended to kill] [conspired with the intent to kill] [name of
               Intended victim), [he] [she] [they] actually caused the death
               of [name of deceased].
               If you find beyond a reasonable doubt that the defendant[s)
              [intended to kill) [conspired with the intent to kill) [name of
              intended victim] and [was) [were) acting with that intent at the
              time [he) {she) [they) in fact killed [name of deceased), you
              may find the defendant[s) acted with the specific intent to kill
              under what the law calls the doctrine of transferred intent.
              What this means is that if the actual result the defendant[sJ
              intended differs from what [heJ [she] [they] contemplated
              only because a different person than the one actually
              Intended was killed, the element of causing the death with
              specific intent to kill is still established.

Pennsylvania Standard Jury. Instruction 15.2501 C .1.

       Though the standard jury instruction contemplates a killing, the transferred intent

doctrine, as codified in our criminal code, contains no such requirement. The code

provides:

             When intentionally or knowingly causing a particular result Is
             an element of an offense, the element Is not established if
             the actual result is not within the Intent or the contemplation
             of the actor unless:
             (1)       the actual result differs from that designed or
             contemplated as the- case may be, only in the respect that a
             different person or different property is Injured or affected or
             that the Injury or harm designed or contemplated would have
             been more serious or more extensive than that caused; or
             (2) the actual result involves the same kind of Injury or harm
             as that designed or contemplated and is not too remote or
             accidental in its occurrence to have a bearing on the actor's
             liability or on the gravity of his offense.

18 Pa.C.S. § 303(b) (emphasis added).

                                           -14-
    CP-21-CR-1212-2014

         Per the statute, a killing is not required.". Here, the injury or harm to Ms. Pope

 was established based on the gunshot wound to her head and thus the application of

 the transferred intent doctrine was appropriate.

         As to the jury instruction, the standard jury instructionsare obviously drafted so

 as to accommodate modification for the purpose of tailoring them to the specific facts of

a given case. Here the court instructed the Jury as follows:

                 The Commonwealth has alleged that while the defendant
                 intended to kill Stephen Robinson, he actually caused injury
                 to Jayonna Pope.
                 If you find beyond a reasonable doubt that the defendant
                 Intended to kill Stephen Robinson and was acting with that
                ·intent at the time he injured Jayonna Pope, you may find the
                 defendant acted with the specific intent to kill under what the
                 law calls the doctrine of transferred Intent.
                 What this means is that if the actual result the defendant
                 intended differs from what he contemplated only because a
                 different person than the one actually intended was injured,
                 the element of specific intent to kill Is still established
                 regarding the attempted murder charge. Similarly, the Intent
                 to Inflict serious bodily injury would still be established with
                 regard to the first aggravated assault count, and the Intent to
                 cause bodily Injury with a weapon would stlll be established
                 regarding the second aggravated assault count.
                 In essence, the intent to cause injury or to kill one individual
                may be transferred to the actual victim. As with the case of
                determining accomplice liability, as I explained you had to
                determine that with respect to each of the offenses
                individually, your determination to apply this doctrine, the
                doctrine of transferred Intent, must be made separately for
                each offense.
                In other words, you must make a separate determination
                regarding the application of the doctrine to attempted
                murder, -aggravated assault (attempted serious bodily injury)

3
  In at least two Pennsylvania appellate cases, the transferred Intent rule was applled to aggravated
assault cases predicated on an attempt to cause an Injury even though no Injury had occurred. See
Commonwealth v. Jackson, 955 A.2d 441 (Pa. Super. 2008) (applying the doctrine to establish the Intent
to cause serious bodlly injury to a group of unintended victims even though no one suffered physical
injuries as a result of a shooting). Clearly, the occurrence of a killing ls not a prerequisite to the
application of the transferred Intent doctrine in Pennsylvania. See also Commonwealth v. Thompson, 739
A.2d 1023, 1029-30 (Pa. 1999).
                                                 -15~
 CP-21-CR-1212-2014

               and aggravated assault (causing bodily injury with a deadly ·
               weapon).

 N.T.1 1/28/2015 at 441-43.

        The court respectfully submits that this Jury instruction was an accurate

 statement of Pennsylvania law and presents no basis for reversal.

                                  E. Length of Sentence

       The Defendant contends that the court abused its discretion by Imposing a

sentence that was unreasonable and excessive under the circumstances of the case.

We first note that at the original sentencing date, the court erroneously applied an

illegally lengthy sentence which was the result of a calculation error arising from the

Commonwealth's failure to present the issue of serious bodily Injury to the jury as to

Count I, Criminal Attempt- Criminal Homicide. The court subsequently resentenced

the Defendant to an aggregate. sentence of 12 ~ to 25 years. That sentence reflected

consecutive sentences for Criminal Attempt- Criminal Homicide, 10-20 years;
                     I

Aggravated Assault (Jayonna Pope), 1-2 years; Firearms not to be possessed without a

license, 1-2 years; and, Recklessly Endangering Another Person (Ashley Brown), 6-12

months.

       The Defendant's crime was shocking. He opened fire with a deadly weapon

during daylight hours on a populated downtown street In an attempt to kill Stephen

Robinson. He wounded two innocent bystanders, one of whom he shot In the head.

Per eyewitness testimony, he laughed as he fled the scene of his crime. His three

victims each deserved to have their rights vindicated by the imposition of consecutive

sentences and nothing less than the lengthy sentence the court imposed would do

justice to the gravity of the Defendant's crimes. The court was in receipt of letters of
                                                    \

                                            -16-
CP-21-CR-1212-2014

support from the Defendant's family, but nothing therein can mitigate the gravity of the

Defendant's actions. His sentence is appropriate.

                                        F. Merger

       Finally, the Defendant argues the court erred by failing to merge Aggravated

Assault (Causing Bodily Injury with a Deadly Weapon) (Jayonna Pope) with Attempted

Murder. This claim of error is simply factually erroneous. The Defendant was not

convicted of the attempted murder of Jayonna Pope. He was convicted of the

attempted murder of Stephen Robinson and the Defendant's corresponding aggravated

assault conviction relating to Mr. Robinson was properly merged for sentencing

purposes. This issue presents no basis for reversal.

                                     Ill. Conclusion

       In sum, despite two of the victims in this case acting as problematic witnesses,

multiple other eyewitnesses and objective text and video evidence were found credible

by the jury and resulted in appropriate guilty verdicts. The court respectfully submits

that the verdicts and judgment of sentence be affirmed.
                                                  By the Court}

                                       ~
                                                  Albert H. Masland, J.

Matthew P. Smith, Esquire
Assistant District Attorney

Jacob M. Jividen, Esquire
For Defendant

                                           -17-


404 F.Supp.2d 239 (2005)
Kimmeo CHRISTMAS, Plaintiff,
v.
Margaret SPELLINGS, Secretary, U.S. Department of Education, Defendant.
No. Civ.A. 05-0707(JR).
United States District Court, District of Columbia.
November 22, 2005.
Kimmeo Joel Christmas, Suitland, MD, pro se.
John C. Truong, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM ORDER
ROBERTSON, District Judge.
Kimmeo Christmas, an employee of the Department of Education, filed suit under Title VII of the Civil Rights Act of 1964. *240 42 U.S.C. § 2000e, et seq. Ms. Christmas alleges that she suffered both race- and sex-based employment discrimination. The government has moved to dismiss the complaint or, in the alternative, for summary judgment. Because the court finds that plaintiff's claims are time-barred, the motion to dismiss will be granted.
Ms. Christmas filed two complaints of discrimination with the U.S. Department of Education's Equal Employment Opportunity (EEO) Group, the first on August 29, 2001, and the second on October 17, 2002. Dkt # 7 at 9. On October 13, 2004, the agency issued a final decision rejecting the allegations of discrimination. That same day, the EEO officer overseeing Ms. Christmas's complaints sent the decision, by certified mail, to the address plaintiff had provided to the EEO Group. On October 19, 2004, the Postal Service left a notice at plaintiff's residence informing her that she had certified mail waiting for her at the post office. Id. at 9-10. A copy of the Final Decision was also sent to Ms. Yvette Bryant, plaintiff's Designated Representative at the administrative level. Id. at 10. Postal Service tracking shows that the Final Decision was delivered to Ms. Bryant on October 22, 2004.
Ms. Christmas did not retrieve her certified mail. On November 26, 2004, the Postal Service returned the unclaimed Final Decision to the Defendant. On November 29, 2004, Ms. Hawkins sent an intra-office e-mail to Ms. Christmas, informing her that the decision had been returned unclaimed and that it was available for pick-up. Ms. Christmas did not respond. Three days later, on December 1, 2004 at 2:28 p.m., Ms. Hawkins sent a second intra-office e-mail to Ms. Christmas, reminding her to pick up the Final Agency Decision. With this second e-mail, Ms. Hawkins used a tracking device that indicated that Ms. Christmas read the e-mail ten minutes after it was sent, at 2:39 p.m. on December 1, 2004. Ms. Christmas finally picked up the decision on January 7, 2005, more than a month later. She filed her federal complaint on April 7, 2005.
A Title VII action must be filed "within ninety days" after receipt of notice of an administrative decision on plaintiff's EEO complaint. 42 U.S.C. § 2000e-5(f)(1) (2000); 42 U.S.C. § 2000e-16(c); Mondy v. Secretary of the Army, 845 F.2d 1051, 1052 (D.C.Cir.1988) (time for filing action runs from date of plaintiff's receipt of notice).
The circuits disagree about what constitutes "receipt" of a certified letter by a plaintiff, sufficient to trigger the 90-day filing period. The D.C. Circuit does not appear to have addressed this exact issue. Among the circuits that have addressed the "receipt" question, some have held that attempted delivery of a certified letter is sufficient to constitute constructive receipt. See, e.g., Watts-Means v. Prince George's Family Crisis Ctr., 7 F.3d 40 (4th Cir. 1993) (90-day period begins with post office notice of letter availability); Johnson-Brown v. Wayne State Univ., 173 F.3d 855, 1999 WL 191322 (6th Cir.1999). Other circuits require actual receipt of a document. See, e.g., Jackson v. Contl. Cargo-Denver, 183 F.3d 1186 (10th Cir.1999) (plaintiff who filed suit 89 days after retrieving certified letter from post office, but more than 90 days after Postal Service first attempted to send letter, fell within statutory time limit of 90 days); Houston v. Sidley & Austin, 185 F.3d 837 (7th Cir.1999). Even the circuits that require actual receipt, however, have declined to apply the actual notice rule to plaintiffs whose failure to receive actual notice has been through their own fault. Thus, where a plaintiff failed to notify the administrative agency of a changed address, or failed to timely retrieve her mail from the *241 post office, the actual notice rule did not apply. See Houston 185 F.3d at 839.
In this case, under the standards adopted by any circuit, Ms. Christmas failed to file her complaint within the 90-day statutory period. She failed to act upon a notice that the certified letter of the final agency decision was available for pick-up on October 19, 2004, although the Postal Service held the letter for over a month. After the letter was returned to the Department of Education, she waited more than a month, after being informed by e-mail that her final agency decision was available for pick-up from the EEO Group, before retrieving it on January 7, 2005. Plaintiff Christmas's suit would be timely only if this court accepts January 7, 2005 as the appropriate date from which the 90-day filing period should run. Because she received both actual and constructive notice that her final agency decision was available on several dates prior to January 7, 2005, however, I cannot find that January 7, 2005 is the appropriate start date for the 90-day filing period.
Plaintiff Christmas's suit is time-barred, and there is nothing in the pleadings to suggest that waiver, estoppel, or equitable tolling is appropriate in this case. For the foregoing reasons, the defendant's motion to dismiss is granted.


                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 10-2062
                                     _____________

                                     OLAF VENTER,

                                         Appellant

                                             v.

     JOHN E. POTTER, POSTMASTER GENERAL OF THE UNITED STATES;
                   UNITED STATES POSTAL SERVICE

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                   (No. 08-cv-00795)
                           District Judge: Joy Flowers Conti

                                 Submitted May 11, 2011

            Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges.

                                   (Filed May 27, 2011)

                                      ____________

                                        OPINION
                                      ____________

CHAGARES, Circuit Judge.

       Plaintiff Olaf Venter appeals the District Court’s grant of summary judgment to

the Postmaster General and the United States Postal Service (“USPS”) on his claims for

age and disability discrimination and retaliation for filing four complaints with the United
States Equal Employment Opportunity Commission. Because no genuine issues of

material fact persist and defendants are entitled to judgment as a matter of law, we will

affirm the judgment of the District Court.

                                               I.

       We write solely for the benefit of the parties and will, therefore, only briefly recite

the facts essential to our disposition. Venter was hired as a full-time employee of USPS

in 1997 at the age of fifty-four. Between 2000 and 2007, Venter suffered from tendonitis,

carpal tunnel syndrome, a shoulder and bicep tear, a bulging disc injury, and a depressive

disorder. Because of his injuries, Venter was placed on limited duty. At certain times

throughout his employment, he disagreed with the precise manner in which the USPS

chose to accommodate his impairments.

       In February 2004, Venter filed the first of four administrative complaints with the

EEOC, contending that his supervisors had discriminated against him because of his age

and disability in choosing his work assignments. An administrative law judge (“ALJ”)

found that no discrimination had occurred. Venter initiated a second such complaint in

August 2004, alleging that Leonard Baranowski, manager of vehicle services, had denied

two of his requests for advanced sick leave in retaliation for the filing of his earlier

complaint with the EEOC. An ALJ found that no retaliation had occurred. Venter filed a

third administrative complaint in April 2005, claiming that Baranowski had introduced

errors into his pay and leave records in retaliation for his previous filings. An ALJ again

found that no retaliation had occurred.

                                               2
       On January 18, 2007, Baranowski offered Venter a new limited duty assignment

requiring him to work from 3:00 p.m. through 11:00 p.m. as a clerk in the transportation

office two days per week, and to work from 6:00 p.m. through 2:30 a.m. in the mail

processing unit three days per week. Venter signed a form, indicating that he was

accepting the assignment “under protest.” Unhappy with this new assignment because it

required him to begin his shift at different times on different days, Venter asked Greg

Hoburg, his union steward, to initiate the grievance procedure. Although Hoburg

indicated that the filing of a grievance was unwarranted by the situation, Venter doggedly

persisted in his efforts to have one filed. In February 2007, Venter filed his fourth

complaint with the EEOC, alleging discrimination based on age, disability and national

origin, as well as retaliation for his earlier administrative filings.

       On March 7, 2007, Venter again approached Hoburg about filing a grievance on

his behalf. Hoburg reiterated his position that a grievance was unwarranted and that he

did not wish to discuss the matter further. Venter, however, continued to insist that a

grievance be filed. Hoburg sought the intervention of Transportation Operations

Supervisor Thomas P. Dziubinski (“Dziubinski”), who took Venter to a smoking area and

told him that his behavior was inappropriate.

       After engaging in these verbal confrontations with Hoburg and Dziubinski, Venter

found himself distraught and went to the Occupational Health Office, where he was

treated by nurses Kimberly Sample and Beverly Streitman. Venter stated that he wanted

to “punch” or “kill” Hoburg. Nurse Sample, who had never dealt with Venter before,

contacted Motor Vehicle Service Supervisor Ed Hosack to report Venter’s threatening

                                                3
statements about Hoburg. She also contacted Distribution Operations Manager Ken

Pawlowski about the matter. Because of Venter’s mental state, Nurse Sample believed it

appropriate for him to leave work for the day, even though his shift was not yet over. At

Nurse Sample’s direction, Venter went to Hosack’s office to request permission to leave

early. While with Hosack, he again expressed a desire to “kill” Hoburg. Viewing this

statement as a potentially dangerous threat, Hosack told Venter to go home.

       USPS maintains a Zero Tolerance Policy regarding violence, which prohibits

employees from making “any actual, implied or veiled threat, made seriously or in jest.”

Supplemental Appendix (“App.”) 3. Threats made by employees are evaluated on a

“Priority Risk Scale.” App. 220. Threats deemed to convey an “Extreme Risk” of

violence are categorized as priority one threats, while statements involving “No Risk” of

violence are categorized as priority four “threats.” Priority two threats are those

indicating the presence of a “High Risk” of violence, and priority three threats are those

indicating the presence of a “Low or Moderate Risk” of violence.

       On March 9, 2007, USPS’ Threat Assessment Team convened a meeting

regarding Venter’s threatening statements. The Assessment Team determined that

Venter’s statements constituted priority two threats. As part of the investigation, Postal

police officers interviewed Venter at his home. Venter indicated that he had no intention

of harming Hoburg, but admitted that he made the threats.

       In a letter dated March 9, 2007, Baranowski informed Venter that he had been

placed on “off-duty (without pay) status effective March 7, 2007 at approximately 9:58

                                             4
pm.” The stated reason for this action was a concern that Venter’s return to the

workplace could have been “injurious” to Venter or to others.

       On March 14, 2007, the Postal Inspection Service issued an investigative

memorandum concerning Venter's statements about Hoburg. After reviewing the

investigative memorandum, MVS management officials initiated disciplinary

proceedings. On March 28, 2007, they conducted a pre-disciplinary interview with

Venter, during which Venter admitted that he had expressed a desire to “kill” Hoburg.

He indicated, however, that he never intended to actually harm Hoburg, and that he had

made that clear to Hosack. Nonetheless, on April 3, 2007, Dziubinski completed a form

recommending that Venter’s employment with the USPS be terminated based on his

violation of the Zero Tolerance Policy. Baranowski concurred in this recommendation.

Accordingly, Dziubinski issued a “Notice of Proposed Removal” to Venter on April 6,

2007. Transportation Manager William Kustarz met with Venter and his counsel on

April 23, 2007, in order to discuss the matter. And in a final “Letter of Decision-

Removal” dated May 8, 2007, Kustarz informed Venter that his employment with the

USPS would be terminated as of the close of business on May 16, 2007.

       Venter appealed his discharge to the Merit Systems Protection Board (“MSPB”).

After a hearing, an ALJ issued a decision affirming the USPS’ decision to terminate

Venter’s employment. In that decision, the ALJ rejected Venter’s affirmative defenses of

age discrimination, disability discrimination, and retaliation. Venter filed a petition for

review of the ALJ’s decision, which was similarly denied.

                                              5
       On June 9, 2008, Venter commenced this action in the District Court, claiming

that his termination was the result of age and disability discrimination in violation of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., and the

Rehabilitation Act (“Rehabilitation Act”), 29 U.S.C. §§ 701, et seq.,1 as well as

retaliation for engaging in statutorily-protected activities. On March 9, 2010, the District

Court issued a lengthy opinion, thoroughly addressing each of Venter’s claims, and

ultimately granting summary judgment to defendants. Venter timely filed this appeal.

                                             II.

       The District Court properly exercised jurisdiction over this action pursuant to 29

U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

       “We subject the District Court’s grant of summary judgment to plenary review,

and we apply the same standard that the lower court should have applied.” Smathers v.

Multi-Tool, Inc., 298 F.3d 191, 194 (3d Cir. 2002) (citing Farrell v. Planters Lifesavers

Co., 206 F.3d 271, 278 (3d Cir. 2000)). Under that standard, summary judgment is

appropriate only “if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “While the evidence of

the non-movant is to be believed, and all justifiable inferences are to be drawn in his

1
  Venter also claims that his termination violated the Americans with Disabilities Act of
1990 (“ADA”), 42 U.S.C. §§ 12101 et seq., but “[i]n clear statutory language, Congress
established that USPS is part of the federal government and that the entire federal
government is excluded from the coverage of the ADA.” Henrickson v. Potter, 327 F.3d
444, 447 (5th Cir. 2003) (citations omitted). Accordingly, Venter may not maintain a
claim against USPS pursuant to the ADA.
                                              6
favor in determining whether a genuine factual question exists, summary judgment

should not be denied unless there is sufficient evidence for a jury to reasonably find for

the nonmovant.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011)

(citations, quotation marks, and brackets omitted).

                                             III.

       In his complaint, Venter alleges that his termination was the result of illegal (1)

age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”),

(2) disability discrimination in violation of the Rehabilitation Act, and (3) retaliation for

engaging in statutorily-protected activities — namely, filing complaints with the EEOC.

       Where, as here, the plaintiff is without direct evidence of either discrimination or

retaliation, we analyze such claims using the familiar burden-shifting framework set forth

in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Smith v. City of

Allentown, 589 F.3d 684, 689 (3d Cir. 2009) (applying McDonnell Douglas framework

to an ADEA claim); Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007) (applying

McDonnell Douglas to Rehabilitation Act claim); Moore v. City of Philadelphia, 461

F.3d 331, 342 (3d Cir. 2006) (applying McDonnell Douglas framework to a retaliation

claim). Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a

prima facie case of unlawful discrimination or retaliation. 411 U.S. at 802; see also

Moore, 461 F.3d at 342. If the plaintiff succeeds, the burden of production shifts to the

employer to articulate a legitimate, nondiscriminatory and nonretaliatory reason for its

decision to terminate the plaintiff. McDonnell Douglas, 411 U.S. at 802; see also Moore,

461 F.3d at 342.

                                              7
       Once the employer meets its “relatively light burden,” the burden of production

returns to the plaintiff, who must show by a preponderance of the evidence that the

employer’s proffered reason is pretextual. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.

1994). Accordingly, once an employer has proffered a legitimate, nondiscriminatory and

nonretaliatory reason, the plaintiff “must submit evidence which: 1) casts sufficient

doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder

could reasonably conclude that each reason was a fabrication; or 2) allows the factfinder

to infer that discrimination was more likely than not a motivating or determinative cause

of the adverse employment action.” Id. at 762. Because the ultimate issue is whether

“discriminatory animus” or retaliation motivated the employer in terminating the

plaintiff, it is not enough to show that the employer made a “wrong or mistaken”

decision. Id. at 765 (citations omitted). Rather, the plaintiff must uncover “weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s

explanation that would allow a reasonable factfinder to believe that the employer did not

truly act for the asserted reason. Id.

       Even assuming that Venter has successfully made out a prima facie case on each

of his three claims — a proposition of which we are doubtful — he has presented no

evidence to discredit defendants’ legitimate, non-discriminatory and non-retaliatory

reason for his termination. Defendants’ documented reason for terminating Venter’s

employment was that Venter violated USPS’ Zero Tolerance Policy by stating that he

wanted to “punch” and “kill” Hoburg. This is plainly a legitimate reason for terminating

                                             8
Venter’s employment. And, notably, Venter admits both that he made these threatening

statements and that he understood the import of the Zero Tolerance Policy.

       In short, there is nothing in the record that would either cast doubt on the veracity

of defendants’ proffered reason for Venter’s discharge or suggest that the proffered

reason was not in fact the motivating cause of his termination.2 We must therefore

conclude, as did the District Court, that Venter has failed as a matter of law to satisfy his

burden to establish that defendants’ articulated, legitimate reason for his termination was

pretextual. Accordingly, each of his claims fails.

                                             IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.

2
  On appeal, Venter primarily seems to argue that two younger employees who violated
the Zero Tolerance Policy were treated more favorably. This argument is unavailing for
two reasons. First, Venter explicitly abandoned any argument based on comparators in
the District Court. See App. 413-14, 446 n.17. Second, and even more importantly,
neither of the younger employees can properly be considered a comparator. The situation
of the first is incomparable because his incident occurred under the supervision of
different decision-makers at a different USPS facility, see Sherman v. Runyon, 235 F.3d
405, 409 (8th Cir. 2000) (finding that an employee failed to show pretext by pointing to
the favorable treatment of another employee who was disciplined by a different
supervisor at a different facility). And the situation of the second suggested comparator
fails to provide support for Venter’s claim of pretext because he, like Venter, was
removed from his position at USPS in accordance with the Zero Tolerance Policy, and
was only later reinstated because he had been falsely accused. See App. 345.
                                              9