Com. v. McClendon, S. ( 2014 )

J-A24011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN MCCLENDON
Appellant No. 1474 EDA 2013
Appeal from the Judgment of Sentence May 3, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014623-2011
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 19, 2014
Appellant, Shawn McClendon, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
bench trial convictions for robbery, criminal attempt (theft by unlawful
taking), simple assault, and recklessly endangering another person
1
We vacate the judgment of sentence and remand for
resentencing.
The relevant facts and procedural history of this case are as follows.
At approximately 5:30 p.m. on December 11, 2011, the victim exited a bus
and began to walk toward his home, which was located about one block from
____________________________________________
1
18 Pa.C.S.A. §§ 3701, 901, 2701, and 2705, respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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the bus stop. Appellant approached the victim from behind, grabbed the
ribs, pretending to have a gun. The victim stopped walking but did not
initially co
the episode from the front porch of the family home. After informing his
toward Appellant, who was standing approximately fifteen to twenty feet
had a gun. The victim saw his brother approach and slowly started to lower
d
Appellant to the ground. During the ensuing scuffle, the victim and his
brother managed to pin Appellant to the ground until the police arrived.
Appellant did not remove his hand from inside his jacket during the struggle.
When the responding officers arrived, they searched Appellant and found no
weapon.
At the conclusion of a one-day bench trial on February 11, 2013, the
court found Appellant guilty of robbery, attempted theft by unlawful taking,
simple assault, and REAP. On May 3, 2013, the court sentenced Appellant to
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attempted theft by unlawful taking merged for sentencing with the robbery
conviction. Appellant timely filed a notice of appeal on May 22, 2013. The
court ordered Appellant to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises a single issue on appeal:
WAS NOT THE EVIDENCE INSUFFICIENT TO CONVICT
APPELLANT OF RECKLESSLY ENDANGERING ANOTHER
PLACING A
E
DEMANDING HIS VALUABLES DID NOT ACTUALLY PLACE
THE COMPLAINANT IN DANGER OF DEATH OR SERIOUS
BODILY INJURY?
Appellant argues he had no actual ability to inflict death or serious
bodily injury on the victim at the time of the incident. Appellant asserts he
merely pretended he had a gun by discreetly pointing his finger in the
that his actions might cause a third party to retaliate with gunfire and
accidentally shoot the victim. Appellant concludes the evidence was
insufficient to support the REAP conviction, and this Court should reverse the
REAP conviction and remand for resentencing on the remaining convictions.
We agree.
A challenge to the sufficiency of the evidence implicates the following
legal principles:
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The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for 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
-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
The Pennsylvania Crimes Code defines the crime of REAP as follows:
§ 2705. Recklessly endangering another person
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.A. § 2705. The mens rea
disregard of
Commonwealth v. Klein, 795 A.2d 424, 427-28 (Pa.Super. 2002) (citation
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which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
ability to inflict harm and not merely the apparent ability to do so. Danger,
Commonwealth
v. Hopkins, 747 A.2d 910, 915 (Pa.Super. 2000) (internal citation omitted).
See also Commonwealth v. Trowbridge, 395 A.2d 1337 (Pa.Super.
1978) (holding evidence was insufficient to sustain REAP conviction where
defendant pointed unloaded BB gun at police officers because officers were
not placed in actual danger of death or serious bodily harm).
The r
to inflict harm, however, may support a REAP conviction where the reaction
places the victim or a bystander in actual danger; e.g., this Court has
recognized there are circumstances:
under which the pointing of an unloaded gun can create a
danger of death or serious bodily injury, albeit not from
the projectile which would be fired if it were loaded. We
think such a danger could exist where the actor points an
unloaded gun and the resulting fear or apprehension of
danger itself creates an actual danger of death or serious
bodily harm to others, such as where a gun is pointed at a
person driving a passenger-filled car at fifty miles per hour
on a public highway, since the requisite danger comes
from the loss of vehicular control in such a panic situation.
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Commonwealth v. Reynolds, 835 A.2d 720, 728 (Pa.Super. 2003)
(quoting Trowbridge, supra at 1341 n.14). In Commonwealth v.
Holguin, 385 A.2d 1346 (Pa.Super. 1978), the defendant pointed a gun at
sixteen people in a bar following a bar fight. The defendant then handed the
gun to one of his two cohorts, who walked around the bar and stuck the gun
grabbed and pulled the hair of the bar owner when the owner tried to call
Id.created a significant risk that someone, perhaps an owner, bartender, or
in danger of death or serious bodily injury. Id. at 1353.
In Reynolds, supra, the defendant pointed a firearm at two men
outside a bar, resulting in a physical struggle for the gun involving at least
one other person. This Court concluded the Commonwealth presented
evidence supported an inference that at least one bullet was in the chamber
of the gun during the incident, adding:
In any event, we further conclude that, even if the gun
were not loaded, the circumstances surrounding
foreseeable, risk
of danger. As in Holguin, Appellant acted in a bar where
other patrons and employees were present. Indeed, the
bouncer removed Appellant from the bar upon learning
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that he had a gun. Moreover, after Appellant pointed a
gun at [the fir
second victim] tackled both men onto the ground and the
three of them fought for the gun. A bystander stepped on
the arm holding the gun, indicating that at least one other
person involved himself in the affray. The circumstances
were such that someone else with a gun could have
retaliated. Accordingly, the surrounding circumstances
were such that Appellant created an actual danger by
pointing the gun, whether or not it was actually loaded and
capable of firing.
Reynolds, supra at 729-30. But see Commonwealth v. Baker, 429 A.2d
709, 710-11 (Pa.Super. 1981) (holding evidence was insufficient to convict
defendant of REAP where defendant, following physical brawl with three men
that spilled outside bar, retrieved unloaded gun from truck and pointed it at
duals in a
parking lot in the middle of the night with no other circumstances indicating
sufficient to suppo
degrees of foreseeability. The dividing line, and therefore the key to our
inquiry, should be whether the accused knew or reasonably should have
known that his conduct might produce a life endangering response by the
Id. at 710.
Instantly, Appellant approached the victim on the street and ordered
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the victim to hand over his belongings. Appellant pretended he had a gun
witnessed the incident and ran to help the victim. The victim and his brother
were able to restrain Appellant until the police arrived. Absent more,
a
gun, cannot sustain the REAP conviction because Appellant had no actual
present ability to inflict harm on the victim or his brother. See Hopkins,
supra; Baker, supra.finding that A
See id. Holguin,
supra is distinguishable, where the defendant and two cohorts physically
attacked, repeatedly threatened, and pointed an actual firearm at numerous
people inside a crowded bar. Similarly, in Reynolds, supra, the defendant
repeatedly pointed a firearm at two victims right outside a bar where
employees and other patrons were present, causing a scuffle in which the
defendant fought for the gun with the victims and at least one bystander.
Both Holguin and Reynolds involved an inherently dangerous situation that
is missing from the instant case. Here, Appellant did not use or brandish an
actual firearm or terrorize a large group of people or conspicuously threaten
the victim in a crowded location. The Commonwealth failed to present
evidence that anyone witnessed or responded to the incident other than the
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weapon. Additionally, the Commonwealth failed to produce any evidence
that the police response placed the victim or his brother in actual danger.
To the contrary, the victim and his brother had successfully restrained
Appellant on the ground by the time the police arrived. Under the totality of
the circumstances, Appellant could not reasonably foresee that his act of
accidentally shooting the victim. Unlike Holguin and Reynolds, in the
present case there was no real risk of retaliatory gunfire. Thus, the facts of
dangerous that death or serious bodily injury was a reasonably foreseeable
result. See Baker, supra; Trowbridge, supra. Accordingly, the evidence
vacate the judgment of sentence, and remand for resentencing on the
remaining
sentencing scheme. See Commonwealth v. Bartrug, 732 A.2d 1287(Pa.Super. 1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999) (citing
Commonwealth v. Vanderlin, 580 A.2d 820, 831 (Pa.Super. 1990)
(holding that if trial court errs in its sentence on one count in multi-count
case, then all sentences for all counts will be vacated so court can
restructure its entire sentencing scheme). See also Commonwealth v.
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Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), cert. denied, 480 U.S.
challenges one of several interdependent sentences, he, in effect, challenges
scheme, then remand for re-sentencing is proper).
Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2014
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