J-S84013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JAMES MCCLAIN

                         Appellant                   No. 3363 EDA 2015


           Appeal from the Judgment of Sentence October 7, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0011937-2014
                          CP-51-CR-0011938-2014

BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED DECEMBER 20, 2016

      Appellant, James McClain, appeals from the judgment of sentence

entered on October 7, 2015. We affirm.

      The factual background and procedural history of this case are as

follows.   In the early morning hours of September 21, 2014, Officers

Alexander Montes and Lisamarie Keleman responded to a report of

vandalism.    While the officers spoke with the complainant, Appellant

violently struck the complainant’s vehicle and then fled on foot.    When

Officers Montes and Keleman located Appellant a short time later, he once

again fled on foot. The officers pursued him in their patrol car.

      Soon, Officer Montes exited the patrol car and began pursuing

Appellant on foot. When Officer Montes caught Appellant, he refused to be




* Retired Justice specially assigned to the Superior Court
J-S84013-16


handcuffed.     Instead, he choked Officer Montes for approximately 15

seconds and then slammed Officer Montes into the concrete sidewalk, pinned

him down, and elbowed and kicked him.         Eventually, backup arrived and

four officers subdued Appellant.

        The Commonwealth charged Appellant via criminal information with

aggravated assault,1 simple assault,2 recklessly endangering another person

(“REAP”),3 resisting arrest,4 and criminal mischief.5     On July 28, 2015,

Appellant was convicted of all five offenses. On October 7, 2015, the trial

court sentenced Appellant to an aggregate term of 9 to 18 months’

imprisonment. This timely appeal followed.6

        Appellant presents one issue for our review:

        Was not the evidence insufficient as a matter of law to sustain
        [A]ppellant’s conviction for [REAP] where no person was placed
        in danger of death or serious bodily injury and where it was not
        proven that [A]ppellant had a conscious disregard for a known
        risk of such danger?

Appellant’s Brief at 2.



1
    18 Pa.C.S.A. § 2702(a).
2
    18 Pa.C.S.A. § 2701(a).
3
    18 Pa.C.S.A. § 2705.
4
    18 Pa.C.S.A. § 5104.
5
    18 Pa.C.S.A. § 3304(a)(2).
6
  The trial court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b).


                                      -2-
J-S84013-16


       “Whether sufficient evidence exists to support the verdict is a question

of law; our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016)

(citation omitted). “In assessing Appellant’s sufficiency challenge, we must

determine whether, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that the Commonwealth proved

[each] element of the crime beyond a reasonable doubt.” Commonwealth

v. Ansell, 143 A.3d 944, 949 (Pa. Super. 2016) (citation omitted).                 “The

evidence need not preclude every possibility of innocence and the fact-finder

is   free   to   believe   all,   part,   or   none   of   the   evidence    presented.”

Commonwealth v. Ford, 141 A.3d 547, 552 (Pa. Super. 2016) (citation

omitted).

       In order to convict a defendant of REAP, the Commonwealth must

“establish that the defendant’s conduct placed or may have placed another

in danger of serious bodily injury or death.” Commonwealth v. Cordoba,

902 A.2d 1280, 1289 (Pa. Super. 2006) (citation omitted).                   Furthermore,

“the evidence must establish that the defendant acted recklessly. . . .               A

person acts in a reckless manner when he consciously disregards a

substantial and unjustifiable risk.” Commonwealth v. Vogelsong, 90 A.3d

717, 719 (Pa. Super. 2014), appeal denied, 102 A.3d 985 (Pa. 2014)

(internal citations omitted).



                                           -3-
J-S84013-16


      Appellant argues that his actions did not put Officer Montes at risk of

serious bodily injury or death.   He focuses on the fact that Officer Montes

was able to walk to his patrol car after the incident and was quickly released

from the hospital.    Furthermore, Appellant argues that the fact Officer

Montes was no longer in pain at the time of trial proves he was not seriously

injured. This argument is flawed, however, because the focus of our inquiry

is not whether Officer Montes suffered serious bodily injury or death. See

Commonwealth v. Lawton, 414 A.2d 658, 662 (Pa. Super. 1979)

(“[T]he mere fact that the victim only sustained minor injuries and did not

sustain ‘serious bodily injury’ does not ipso facto establish that [the

defendant’s] actions did not place others in danger of such injury.”).

Instead, our inquiry is whether Appellant’s actions placed Officer Montes at

risk of serious bodily injury or death.    Slamming Officer Montes to the

concrete sidewalk placed him at risk of serious bodily injury or death.7    If

Officer Montes struck his head, he could have suffered a concussion and a

concussion is a serious bodily injury.    See Commonwealth v. Rife, 312

A.2d 406, 409 (Pa. 1973). Accordingly, there was sufficient evidence that

Appellant’s actions placed Officer Montes at risk of serious bodily injury or

death.




7
  Appellant contends that Officer Montes wrestled him to the ground. See
Appellant’s Brief at 11. Officer Montes testified, however, that Appellant
slammed him into the concrete. N.T., 7/28/15, at 7.


                                     -4-
J-S84013-16


        Appellant next argues that there was insufficient evidence to prove

that he acted with sufficient recklessness.   He argues that he was merely

attempting to elude arrest and was not attempting to place Officer Montes at

risk of serious bodily injury or death. This argument is without merit. In

this case, Appellant did not merely resist arrest.      Instead, after Officer

Montes wrapped his arms around him, Appellant slammed Officer Montes

into the concrete sidewalk.    See N.T., 7/28/15, at 7.     Appellant’s action

reflects a conscious choice to disregard the substantial and unjustifiable risk

that slamming Officer Montes into the concrete would place the officer at risk

of serious bodily injury.   Moreover, attempting to avoid arrest does not

shield a defendant from being convicted of REAP. See Commonwealth v.

Picchianti, 600 A.2d 597, 598 (Pa. Super. 1991), appeal denied, 609 A.2d

168 (Pa. 1992); Commonwealth v. Henck, 478 A.2d 465, 467 (Pa. Super.

1984).    Accordingly, there was sufficient evidence to convict Appellant of

REAP.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/20/2016




                                     -5-
