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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-A24011-14


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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J-A24011-14


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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