J-S12019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHAUNCEY ELLISON,

                            Appellant                 No. 747 EDA 2014


       Appeal from the Judgment of Sentence entered January 17, 2014
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008805-2012


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 11, 2015

       Appellant, Chauncey Ellison, appeals from the judgment of sentence

entered following his conviction of recklessly endangering another person

(“REAP”). We affirm.

       Following a jury trial that commenced on November 18, 2013, and

concluded on November 22, 2013, Appellant was convicted of REAP. He was

found not guilty of possession of an instrument of crime and criminal

conspiracy. The jury was deadlocked on the remaining charge of voluntary

manslaughter, which was ultimately nol prossed by the Commonwealth on

January 29, 2014.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     On January 17, 2014, Appellant was sentenced to eleven and one-half

to twenty-three months of imprisonment, followed by one month of

probation.   Appellant filed post-sentence motions which were denied on

February 21, 2014. On March 4, 2014, Appellant filed his notice of appeal.

Appellant and the trial court complied with Pa.R.A.P. 1925.

     The trial court provided the following thorough statement of facts:

           On the evening of Monday, November 17, 2008,
     [Appellant] and co-defendant Robin Fortune, his then-girlfriend,
     were inside Fortune’s home when their fourteen-year-old sons
     went out to buy pizza. When the two boys returned home, they
     informed [Appellant] and Fortune that they had been robbed at
     the pizza shop. Stephon Berry, Robin Fortune’s son, was
     trembling in fear, and Chauncey Ellison, Jr., [Appellant’s] son,
     had a bruise on his head. N.T. 11/21/13, pp. 78- 79, 94-95,
     126-128, 140, 178-180.

            At the time, [Appellant] and Fortune were Philadelphia
     police officers, but both were off duty on that evening. Instead
     of calling 911 and reporting the crime, [Appellant] and Fortune
     decided to search for the robber on their own.            Neither
     [Appellant] nor Fortune was in police uniform nor did either have
     official police department identification on their person when
     they entered [Appellant’s] SUV and began their search for the
     robber.     However, [Appellant] was armed with his service
     weapon. [Appellant’s] son, Chauncey Ellison, Jr., and Fortune’s
     sixteen-year-old daughter, Brittany Fortune, accompanied them
     on their search. Stephon Berry, Fortune’s son, remained at
     home. N.T. 11/21/13, pp. 94, 99, 126, 139-144, 178-180.

           [Appellant] began the search by driving toward the
     Cheltenham Mall along Cheltenham Avenue. When they were
     near the mall parking lot, [Appellant’s] son identified a man
     wearing an orange hoodie as the individual who robbed and
     assaulted him. This man was later identified as sixteen-year-old
     Demetrius Haywood, who was walking with his friend, nineteen-
     year-old Lawrence Allen, the decedent. Haywood and Allen were
     returning to Renova Street after having bought snacks from a
     nearby delicatessen. Decedent lived at 1982 Renova Street with

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     his girlfriend, Rosemily Rosado, his two children, his sisters,
     Louren Allen and Mecca Drake, and their children.          N.T.
     11/19/13, pp. 73-76; N.T. 11/21/13, pp. 49-54, 80-83, 128-
     130, 180-183.

            Upon observing Haywood and Allen, [Appellant] drove
     slowly toward the two men and stopped his SUV in the middle of
     the mall parking lot. [Appellant], Fortune and her daughter
     exited the vehicle. [Appellant] unholstered his gun as he
     approached Haywood and Allen. However, neither [Appellant]
     nor co-Defendant Fortune identified themselves as police
     officers. Haywood and Allen both ran across Cheltenham Avenue
     in opposite directions. [Appellant] attempted to chase the two
     men, but lost sight of them after they crossed the street.
     [Appellant] returned to his vehicle and learned that Fortune and
     her daughter had chased Haywood, who ran into a driveway.
     When Fortune and her daughter reached the end of that
     driveway, they lost Haywood. [Appellant], Fortune and her
     daughter all re-entered [Appellant’s] vehicle and they continued
     their search. N.T. 11/19/13, pp. 81-84; N.T. 11/21/13, pp. 55-
     58, 83-86, 129-132,180-183.

           [Appellant] then drove to 20th Street and Cheltenham
     Avenue. When he turned from 20th Street onto Renova Street,
     [Appellant] was driving in the wrong direction on this one-way
     residential street. After turning onto Renova Street, with his gun
     pointed out of the window of his SUV, [Appellant] again saw
     Haywood who was still running away.              Upon observing
     [Appellant], Haywood reversed his direction and ran back down
     the street. [Appellant] then stopped, and he and Fortune exited
     the vehicle. Co-Defendant Fortune then started screaming up the
     block at Haywood: “Yeah. You like robbing people. We’ll be
     down there. We’ll be down there.” N.T. 11/19/13, pp. 77-80;
     N.T. 11/21/13, pp. 58-60, 84-87, 131-132, 146-148, 182-183.

           When [Appellant] and Fortune exited the SUV, Allen
     approached them and said: “Yo! What’s going on? You out
     here pulling guns endangering my son.” At that time, Allen’s son
     was inside the house looking outside the window. Allen said:
     “What’s the problem? .... If it was about the pizza, I give you all
     the money back.”        While [Appellant] and Fortune were
     confronting Allen outside, Haywood ran past [Appellant’s] SUV
     and into Allen’s house, where he informed Allen’s girlfriend and
     two sisters that he had assaulted and robbed a boy at the pizza

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     shop. He further informed them that Allen was involved in an
     altercation with the boy’s father outside. Haywood then hid
     inside Allen’s garage and the women went outside. When the
     two women got outside, Fortune was screaming and cursing
     loudly: “You all don’t know who the fuck you’re dealing with.
     You all going to learn today, you pussies.” She was also yelling
     to [Appellant]: “You going to let this happen? You going to let
     him do that to your son? .... You going to let one of these MF’ers
     push you around? Go ahead and pop one of these MF’ers. Pop
     those pussies.” At one point, Allen reached inside his pocket and
     pulled out money and offered to pay for the pizza. [Appellant]
     refused the offer and Allen grabbed his girlfriend’s hand and
     turned to go inside his house. [Appellant] then reached over
     Allen’s girlfriend and shot Allen once in the back. This shooting
     occurred at or around 9:00 p.m. N.T. 1 1/1 9/13, pp. 74-92;
     N.T. 11/20/13, pp. 60-69, 92-106; N.T. 11/21/13, pp. 57-62.

            After the gunshot, Allen collapsed on the ground and
     started coughing up blood. Allen’s friend, Sybari Laws, drove him
     in a Cadillac Deville to Albert Einstein Hospital in Montgomery
     County. Allen’s girlfriend and other unnamed individuals rode
     with them. Allen had been shot in the upper left portion of his
     back. The bullet went from left to right in the vertebra and
     lodged in the fourth thoracic. The bullet fractured the back part
     of his rib and caused bleeding in his chest cavity. In addition to
     paralysis, Allen suffered several other complications from his
     gunshot wound including bedsores, infection, pneumonia, and
     blood clots in his leg, which developed into a pulmonary
     embolism while he was in the hospital. N.T. 11/20/13, pp. 28-
     35, 101-103.

            Allen remained in the hospital until February 13, 2009,
     when he was transferred to Moss Rehab after being found in
     stable condition. While in Moss Rehab for only a few hours, Allen
     developed a high fever. As a result, he returned to the hospital,
     where he was diagnosed with a severe urinary tract infection.
     Lawrence Allen died in Einstein Hospital on February 15, 2009.
     Dr. Samuel Gulino, Chief of the Office of the Medical Examiner,
     testified at trial as the Commonwealth’s expert in forensic
     pathology. Dr. Gulino concluded to a reasonable degree of
     medical certainty that Allen’s death was caused by a urinary
     tract infection with sepsis, one of the medical complications he
     suffered as a result of the gunshot wound to his back. N.T.
     11/20/13, pp. 28-35.

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            Immediately after Allen was shot, [Appellant] and Fortune
      returned to his SUV and left the scene. When they reached the
      area near 21st Street and Cheltenham Avenue, there was a
      Cheltenham police officer conducting a traffic stop.          Co-
      Defendant Fortune exited the SUV and ran to the police officer.
      It was approximately 9:15 p.m. when Fortune approached
      Cheltenham Police Officer Brian Walsh and informed him that
      [Appellant] had shot someone. When Officer Walsh approached
      the SUV, [Appellant] was in the driver’s seat and the two
      teenagers were in the back passenger seats. Officer Walsh
      observed a gun on the center console and secured it for his
      safety. When he asked [Appellant] if he had been involved in a
      shooting, [Appellant] answered in the affirmative. Officer Walsh
      probed further, and he learned that [Appellant’s] son had been
      robbed, that [Appellant] had found the robber, and that
      [Appellant] shot a man who had come to the robber’s assistance.
      Officer Walsh then advised his dispatcher that off-duty
      Philadelphia police officers had been involved in a shooting.
      Within a minute, Officer Walsh turned over [Appellant’s] service
      weapon to a Philadelphia police officer who arrived on the scene.
      N.T. 11/19/13, pp. 110-122; N.T. 11/21/13, pp. 135-136, 185-
      188.

             Lieutenants Jack Feinman and David Van arrived on the
      scene and transported [Appellant] to Internal Affairs, where
      Lieutenant Michael Young inventoried the Glock pistol, an official
      city-issued weapon, and seventeen (17) [9 mm] cartridges.
      Lieutenant Young also determined that [Appellant] did not have
      anything on his person that identified him as a police officer.
      [Appellant] was then authorized to receive a replacement
      weapon. He was also informed that he was assigned to desk
      duty while Internal Affairs conducted an investigation.

Trial Court Opinion, 7/17/14, at 2-6.

      Appellant presents the following issues for our review:

      Did the trial court err in denying Appellant’s motion for mistrial
      made in response to the Commonwealth improperly questioning
      Appellant on a matter that the court had specifically ordered all
      parties not to introduce at trial?




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      Was the evidence presented by the Commonwealth at trial
      sufficient as a matter of law to convict him of recklessly
      endangering another person?

Appellant’s Brief at 2 (full capitalization omitted).

      Appellant first argues that the trial court erred in denying Appellant’s

motion for a mistrial made in response to the Commonwealth’s question to

Appellant asking whether he had been fired from his job as a police officer.

Appellant’s Brief at 12.    Appellant asserts that the question was asked in

contravention of the trial court’s earlier ruling that no such questions would

be permitted. Id. Appellant further argues that the “fairness of Appellant’s

trial was irreparably compromised as a consequence of this misconduct, the

[trial court] should have granted a mistrial and the cautionary instruction

presented to the jury failed to sufficiently alleviate the prejudicial affect that

it had.” Id.

      Our Supreme Court has set forth the following standard for reviewing

the denial of a motion for mistrial:

            It is well-settled that the review of a trial court’s denial of
      a motion for a mistrial is limited to determining whether the trial
      court abused its discretion. “An abuse of discretion is not merely
      an error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will . . . discretion is abused.” A trial court may grant
      a mistrial only “where the incident upon which the motion is
      based is of such a nature that its unavoidable effect is to deprive
      the defendant of a fair trial by preventing the jury from weighing
      and rendering a true verdict.” A mistrial is not necessary where
      cautionary instructions are adequate to overcome prejudice.




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Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011) (internal

citations omitted)

      Prior to trial, the Commonwealth filed a motion in limine. In support

of its motion in limine, the Commonwealth explained that initially the district

attorney’s office, after reviewing information submitted by the police

department, made a decision to not charge Appellant.       N.T., 11/18/13, at

10.   Ultimately, however, a grand jury was convened and charges were

brought against Appellant and the co-defendant. Id. The Commonwealth

further stated that the police department ultimately discharged Appellant for

“other reasons of their own.” Id. As a result, the Commonwealth sought to

preclude reference being made during trial to the fact that the district

attorney’s office and the police department had cleared Appellant and co-

defendant of the criminal charges. Id.

      During this exchange, co-defendant’s counsel also sought to preclude

any mention of the fact that a grand jury had indicted Appellant and co-

defendant.    N.T., 11/18/13, at 11.     The Commonwealth further stated it

would also “move in limine the fact that [Appellant and the co-defendant]

had been fired by the police department.”        Id.   In response, however,

defense counsel raised a concern and stated: “Depending on how the case

goes, there may be an argument as to whether or not that comes in or not.”

Id. Following a brief discussion of this issue, the trial court stated: “If it

becomes relevant, let me know before you introduce it. I will not preclude


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anyone from doing what he or she thinks is appropriate to get a fair trial.

Let’s not bring in extraneous and irrelevant material.” Id. at 12-13.

       On the morning of trial, co-defendant’s counsel made a motion in

limine seeking to exclude testimony regarding internal police directives.

N.T., 11/19/13, at 9.    The Commonwealth responded that such directives

may become relevant during trial depending on the defense developed. Id.

at 12. Instead of ruling on the motion at that time, the trial court indicated

that it would rule on that issue if it arose. Id. at 14.

       With those rulings in mind, we review the questioning contested by

Appellant.     During   cross-examination,    the   Commonwealth    questioned

Appellant about a police department directive that directed off-duty officers

“to be a good witness and call 911.”           N.T., 11/21/13, at 191.      Co-

Defendant’s counsel objected, but the trial court overruled that objection.

Id.    Appellant explained that, while at that time there was no directive,

there was in fact a commissioner’s memorandum, dated 1998, that was in

effect that advised that “the best course of action is to call 911.” Id. at 191-

192.    The Commonwealth further questioned Appellant regarding these

directives and the following exchange took place:

       [ADA]:     There is also a directive that says police officers
       should ensure that their actions do not precipitate the use of
       deadly force by placing themselves or others in jeopardy by
       taking unnecessary, overly aggressive and improper actions,
       correct?

       [Co-Defendant’s Counsel]:     Objection.


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      [Trial Court]:    Overruled.

      [Appellant]:      It does say that, but was it also noted in this
      case that I was justified by the Philadelphia Police Department in
      the use of deadly force.

      [ADA]:      You were justified in your head --

      [Appellant]:      No, on paper, that the Philadelphia Police
      Department determined that in this incident that I was justified
      in the use of deadly force.

            You bringing up the directives and --

      [ADA]:      Is that before or after you were fired for violating the
      directives?

      [Appellant]:      Before. I was justified right after the incident.

N.T., 11/21/13, at 193.

      Following this exchange and outside of the hearing of the jury,

Appellant’s counsel objected to the Commonwealth’s reference to Appellant

being fired and he moved for a mistrial on this basis.      N.T., 11/21/13, at

193-194.    The Commonwealth argued that the directives were relevant to

establish Appellant’s state of mind and the behavior expected of police

officers.   Id. at 197.     The Commonwealth further asserted that by

responding to its questions regarding the directives with the fact that the

Philadelphia police department determined that he was justified in his

actions, Appellant “opened the door” to facts related to his termination. Id.

at 198.

      As noted, the trial court did not rule on the motion to preclude

reference to department directives but instead, stated that it would address

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such issues as they arose, if at all, during trial. Thus, the Commonwealth

did not violate the trial court’s ruling by asking Appellant questions regarding

department directives. Counsel objected to the question, and the trial court

overruled the objection.    Thus, we cannot agree that the Commonwealth

improperly questioned Appellant regarding this material.

        Moreover, instead of responding to the Commonwealth’s question

about the departmental directive, Appellant responded that the police

department had found that “he was justified” in his actions.          Appellant

therefore raised the issue of departmental action that the parties and the

trial court had previously addressed in the motion in limine and had decided

would be irrelevant and immaterial to the proceedings. Because Appellant

opened the door to the police department’s previous action of finding

Appellant’s actions justified, the Commonwealth was within its rights to

reference the police department’s additional and subsequent action of firing

Appellant. “Having ‘opened the door’ to this subject, [A]ppellant cannot now

complain because the prosecutor chose to further comment on what was

behind that door.” Commonwealth v. Hawkins, 701 A.2d 492, 503 (Pa.

1997).

        Furthermore, based on the testimony provided, the jury heard

information that was supportive of both Appellant’s and the Commonwealth’s

case.    Before these statements were expounded upon, the testimony was

interrupted.   Therefore, we do not conclude that the Commonwealth’s


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questioning had the unavoidable effect of prejudicing the jury so as to

warrant a mistrial.   See Commonwealth v. Begley, 780 A.2d 605, 624

(Pa. 2001) (“The remedy of a mistrial is an extreme one that is required only

when an incident is of such a nature that its unavoidable effect is to deprive

the defendant of a fair and impartial trial by preventing the jury from

weighing and rendering a true verdict.”) As a result, we cannot agree with

Appellant’s argument that the Commonwealth’s reference to Appellant being

fired so prejudiced Appellant that the trial court was required to grant a

mistrial.

      Furthermore, following the objection and motion for mistrial, the trial

court crafted a curative jury instruction.      The trial court provided the

following instruction to the jury:

      Ladies and gentlemen, you have heard testimony during the
      course of this trial that these two defendants were both off duty
      police officers at the time of the incident which gave rise to the
      charges which are the subject of this trial.

            In the course of the testimony adduced thus far, there was
      testimony about police directives and there was testimony about
      whether the shooting was deemed justified by the police
      department and there was testimony about whether [Appellant]
      was fired as a result of his actions.

           Ultimately, ladies and gentlemen, none of that is relevant
      to your inquiry as to whether or not a crime or crimes were
      committed.

            That is a determination that you must make as jurors
      based on the evidence you hear during the course of this trial
      and the law which I will instruct you [sic] at the conclusion of the
      evidence.


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               Accordingly, members of the jury, I instruct you to
        disregard any question or answer or testimony about police
        directives, about departmental clearance and/or termination of
        employment.

              Your decision in these cases must be based upon the facts
        and the law of this case and nothing else.

N.T., 11/21/13, at 201-202.

        Accordingly, the trial court’s contemporaneous instruction cured any

prejudice that may have been imparted by the Commonwealth’s reference to

Appellant’s termination.    Our Supreme Court has held that a mistrial is

unnecessary where cautionary instructions are sufficient to overcome any

possible prejudice.     Begley, 780 A.2d at 624.         Furthermore, “absent

evidence to the contrary, the jury is presumed to have followed the court’s

instructions.” Commonwealth v. Huggins, 68 A.3d 962, 974 (Pa. Super.

2013) (quoting Commonwealth v. O’Hannon, 732 A.2d 1193, 1196 (Pa.

1999)). Because the cautionary instruction was sufficient to overcome any

possible prejudice and there is no evidence that the jury did not follow the

court’s instructions, the trial court did not abuse its discretion in denying the

motion for a mistrial. Thus, this claim does not afford Appellant relief.

        In his second issue, Appellant maintains that the evidence presented

by the Commonwealth was insufficient as a matter of law to convict him of

REAP.     Appellant’s Brief at 18.    Specifically, Appellant argues that the

evidence fails to support the trial court’s conclusion that Appellant acted




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recklessly. Id. at 21. As a result, Appellant asks this Court to overturn his

conviction for REAP. Id. at 23.

      Our standard for reviewing the sufficiency of evidence on appeal is as

follows:

             The standard we apply in reviewing the sufficiency of
      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 factfinder 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
      that of 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
      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. Bricker, 41 A.3d 872, 877 (Pa. Super. 2012) (citations

and quotations omitted).

      The crime of REAP is defined at 18 Pa.C.S. § 2705 as follows:         “[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.” We have held that a person is guilty of this

crime when it is shown that the person (1) possessed “a mens rea

recklessness,” (2) committed a wrongful deed or guilty act (“actus reus”),

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and (3) created by such wrongful deed the danger of death or serious bodily

injury to another person. Commonwealth v. Emler, 903 A.2d 1273, 1278

(Pa. Super. 2006).

      “Recklessly” is defined as follows:

            A person acts recklessly with respect to a material element
      of an offense when he consciously disregards a substantial and
      unjustifiable risk that the material element exists or will result
      from his conduct. The risk must be of such a nature and degree
      that, considering the nature and intent of the actor’s conduct
      and the circumstances known to him, its disregard involves a
      gross deviation from the standard of conduct that a reasonable
      person would observe in the actor’s situation.

18 Pa.C.S. § 302(b)(3).      Furthermore, 18 Pa.C.S. § 2301 defines “serious

bodily injury” as “[b]odily injury which creates a substantial risk of death or

which causes serious, permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ.”

      The   trial   court   provided   the   following   summation   of   evidence

presented at trial that supports Appellant’s conviction of REAP:

            Clearly, [Appellant] consciously disregarded an unjustified
      and extremely high risk that brandishing and firing his weapon
      would cause serious bodily injury or death. In the first instance,
      [Appellant] was reckless for pursuing the individual who robbed
      his son while in plain clothes and armed with a firearm while off
      duty without identifying himself as a police officer. The more
      reasonable course of action would have been to call 911 and
      report the crime when they learned of the robbery. However,
      instead of acting in a reasonable manner, [Appellant] pursued
      the robber and placed numerous lives in great risk of danger.
      When [Appellant] arrived on Renova Street in his continued
      pursuit of the robber, he pointed his gun out of the window as he
      sped up the street in the wrong direction while there were
      several individuals outside and children inside Allen’s house
      nearby.

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             Despite Allen’s repeated offers to pay for the stolen pizza,
      the confrontation continued to escalate with Fortune urging
      [Appellant] to “shoot the MFers.” [Appellant] shot Allen in the
      back even after the decedent had begun to retreat from the
      brawl. This shooting led to Allen’s severe injuries and ultimate
      death. Certainly [Appellant’s] actions grossly deviated from the
      standard of conduct that a reasonable person would observe
      under these circumstances. The aforementioned facts clearly
      demonstrate that [Appellant] acted recklessly during this
      incident and that he consciously disregarded an unjustified and
      extremely high risk that injury and death could result from his
      conduct.     Based on these facts, the Commonwealth proved
      beyond a reasonable doubt that [Appellant] was guilty of
      recklessly endangering another person. Therefore, there was
      sufficient evidence to convict [Appellant] of this offense.

Trial Court Opinion, 7/17/14, at 15-16.

      The evidence of record supports the trial court’s summary and

analysis.   Viewing the evidence in the light most favorable to the

Commonwealth as the verdict winner, the record reflects sufficient evidence

to establish beyond a reasonable doubt Appellant’s conviction of REAP.

Thus, Appellant’s second claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2015




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