Com. v. Green, K. ( 2022 )

J-S06045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEVIN GREEN :
:
Appellant : No. 905 EDA 2021
Appeal from the Judgment of Sentence Entered April 12, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004823-2019
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JUNE 8, 2022
Appellant, Kevin Green, appeals from the judgment of sentence entered
in the Philadelphia County Court of Common Pleas, following his bench trial
convictions for possession of a firearm, possession of an instrument of crime
(“PIC”), terroristic threats, simple assault, and recklessly endangering another
person (“REAP”).1 We affirm.
The trial court set forth the factual and procedural history of this case
as follows:
[Gladys] Hernandez testified that on June 12, 2019, she was
visiting her aunt’s house at 3013 North Darien Street in
Philadelphia, Pennsylvania. At approximately 6:00 p.m.,
Ms. Hernandez was sitting on a bench outside of her aunt’s
home with her two-year-old niece when she noticed
Appellant hop out of a car and walk towards her. Appellant
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1 18 Pa.C.S.A. §§ 6105(a)(1), 907(a), 2706(a)(1), 2701(a), and 2705,
respectively.
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then said, “Bitch, where’s my money,” cocked his gun back
and smacked Ms. Hernandez with his gun on the left side of
her face as he told her that he was going to “blow [her] head
off.” After striking Ms. Hernandez with his gun, Appellant
threw the gun into a parked car and ran off. (N.T. Trial,
9/29/20, at 8, 10-11).
After the incident, Ms. Hernandez went to the police station
to file a report. Detective [Luz] Varela took pictures of Ms.
Hernandez’s injuries to her lip and the left side of her face.
The pictures show redness on the left side of her face as well
as the bruising and swelling of her lip. On June 13, 2019,
Ms. Hernandez went to the hospital to get treatment for her
injuries. Ms. Hernandez was released from the hospital on
the night of June 13, 2019, and was given medicine for her
pain. (Id. at 18).
[Maritza] Gonzalez, who is Ms. Hernandez’s aunt, owns the
home in front of where the incident took place. Ms.
Gonzalez testified that around 6:00 p.m., she heard Ms.
Hernandez screaming from the front of her house. Ms.
Gonzalez went outside and found Ms. Hernandez crying and
holding the side of her face with blood coming out of her
mouth. Ms. Gonzalez then saw Appellant standing out front
of her house with a gun in his hand while threatening Ms.
Hernandez. When Ms. Gonzalez asked what happened,
Appellant told her that Ms. Hernandez “stole his money,”
and that “he wants his money back or it’s her life.”
Appellant then ran off and Ms. Gonzalez took Ms. Hernandez
inside to treat her injuries. (Id. at 48-52).
Officer [Barbara] McNally testified that around 6:00 p.m. on
June 12, 2019, Ms. Hernandez came into the 25th district to
file a police report. Officer McNally stated that Ms.
Hernandez appeared to be distraught and had bruising on
her face and lip. Ms. Hernandez explained to Officer McNally
that Appellant hit her on the left side of her face with his
gun and threatened to kill her. After interviewing Ms.
Hernandez about the incident, Officer McNally filed a 75-48D
police report. (Id. at 61-63).
Detective Varela testified that around 6:00 p.m., he
conducted an interview with Ms. Hernandez to investigate
the incident. Detective Varela took photographs of Ms.
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Hernandez’s injuries and advised her to get a Protection
from Abuse (PFA) order against Appellant. Several days
later, Appellant was arrested after he was served with the
PFA order. Detective Varela then obtained a search warrant
for Appellant’s home, pursuant to which he searched the
premises and seized a magazine loaded with ammunition, a
holster, and several rounds of ammunition. (Id. at 66-
69)[.]
The Commonwealth lastly presented the testimony of
Detective Paul Dixon, who testified that he helped Detective
Varela execute the search warrant for Appellant’s home.
Detective Dixon testified that he and Detective Varela
recovered a magazine loaded with ammunition laying in
between neatly stacked jeans in Appellant’s closet, a
holster, and several rounds of ammunition. Detective Dixon
then placed these items on a property receipt. (Id. at 74-
76).
At Appellant’s waiver trial on September 29, 2020, the
Commonwealth incorporated the above-referenced
testimony and rested its case, upon which Appellant moved
for a judgment of acquittal. The [c]ourt granted Appellant’s
motion for a judgment of acquittal as to aggravated assault,
firearms not to be carried without a license, and carrying
firearms in public. Subsequently, this [c]ourt heard closing
arguments and found Appellant guilty of the remaining
charges.
(Trial Court Opinion, 9/14/21, at 2-4) (record citation formatting altered). On
April 12, 2021, the court sentenced Appellant to an aggregate term of five to
ten years of incarceration. Appellant filed a timely notice of appeal on April
27, 2021. On August 10, 2021, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).2
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2 The court initially issued a Rule 1925(b) order on April 29, 2021. Trial
counsel subsequently filed a petition to withdraw because he had not been
(Footnote Continued Next Page)
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Pa.R.A.P. 1925(b). On September 1, 2021, Appellant filed a timely Rule
1925(b) statement.
Appellant raises one issue on appeal:
Was the evidence insufficient to sustain the REAP conviction
because the Commonwealth failed to prove beyond a
re[a]sonable doubt that Appellant consciously disregarded a
known risk of death or great bodily harm to another
person[?]
(Appellant’s Brief at 3).
Appellant argues the Commonwealth failed to establish that he
consciously disregarded a known risk of death or great bodily injury. Appellant
asserts that although he had the means to do so, he consciously went out of
his way not to kill or severely injure the victim. Appellant concludes the
Commonwealth presented insufficient evidence to sustain his REAP conviction,
and this Court must vacate his judgment of sentence. We disagree.
Our standard of review for a challenge to the sufficiency of evidence is
as follows:
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
____________________________________________
retained on appeal. After the court appointed appellate counsel, the court
issued the August 10, 2021 order directing Appellant to file a Rule 1925(b)
statement.
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innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Holt, 270 A.3d 1230, 1233 (Pa.Super. 2022) (quoting
Commonwealth v. Jackson, 215 A.3d 972, 980 (Pa.Super. 2019)).
The Crimes Code defines REAP in relevant part 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. “Thus, the crime requires (1) a mens rea of recklessness,
(2) an actus reus [of] some ‘conduct,’ (3) causation ‘which places,’ and (4)
the achievement of a particular result ‘danger,’ to another person, of death or
serious bodily injury.” Commonwealth v. Reynolds, 835 A.2d 720, 727
(Pa.Super. 2003) (quoting Commonwealth v. Trowbridge, 395 A.2d 1337,
1340 (Pa.Super. 1978)).
The mens rea required for REAP is “a conscious disregard of a known
risk of death or great bodily harm to another person.” Commonwealth v.
Klein, 795 A.2d 424, 427-28 (Pa.Super. 2002) (citation omitted). “Serious
bodily injury” is “bodily injury which creates a substantial risk of death or
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which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. §
2301. Significantly, REAP “is a crime of assault which requires the creation of
danger” so “there must be an actual present ability to inflict harm.”
Reynolds, supra at 727-28. Mere apparent ability is not enough because
danger, and not the apprehension of danger, must be created. Id. at 728(quoting Trowbridge, supra). What constitutes sufficient evidence for a
REAP conviction depends on the facts and circumstances of the individual
case. Commonwealth v. Hartzell, 988 A.2d 141 (Pa.Super. 2009).
Instantly, the court analyzed Appellant’s sufficiency claim for REAP as
follows:
Here, the testimony of both Ms. Hernandez and Ms.
Gonzalez established that Appellant placed Ms. Hernandez
in danger of death or serious bodily injury. Appellant
created such danger when he struck Ms. Hernandez across
the face with his cocked gun while simultaneously
threatening to kill her. Appellant presented an actual ability
to inflict harm that was real and not merely apparent as he
repeatedly uttered threats such as “she stole my money”
and “she is going to pay for it.” Ms. Hernandez had no
reason to believe that Appellant was incapable of carrying
out his death threat of “blowing her head off.”
Furthermore, upon striking Ms. Hernandez with a metal gun
to a vital part of her body, Appellant consciously disregarded
the known risk of inflicting serious bodily injury. Appellant
was clearly in a position where he could have shot Ms.
Hernandez. Moreover, the utility of Appellant’s conduct to
“get his money back” was greatly outweighed by the risk of
inflicting serious bodily injury upon Ms. Hernandez.
(Trial Court Opinion at 5-6) (record citations omitted).
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The record supports the trial court’s analysis that Appellant consciously
disregarded a known risk of death or serious bodily harm to another person
by striking Ms. Hernandez in the face with a cocked gun. See Klein, supra.Although Appellant insists that he did not actually kill or cause Ms. Hernandez
serious bodily injury, Appellant’s creation of that danger satisfies the statutory
requirements. See 18 Pa.C.S.A § 2705; Reynolds, supra. Viewed in the
light most favorable to the Commonwealth as verdict-winner, the evidence
was sufficient to support Appellant’s conviction for REAP. See Holt, supra.
Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/08/2022
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