J-A25044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ARTURO SHAW,                               :
                                               :
                       Appellant.              :   No. 3945 EDA 2017


          Appeal from the Judgment of Sentence, December 1, 2017,
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0013005-2015.


BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                          FILED JANUARY 15, 2019

        Arturo Shaw appeals the judgment of sentence imposed following his

convictions for a firearm violation, possession of an instrument of crime, and

recklessly endangering another person.1 We affirm.

        The trial court summarized the pertinent facts as follows:

              On July 20, 2017, a [bench] trial was held before this
           court. [C.B.] testified that around 12:00 a.m. on November
           18, 2015 she was in her car near her house on 57 th Street
           and Girard Avenue in Philadelphia. As [C.B.] pulled up to
           her house, she saw on her left side about fifteen (15) to
           twenty (20) feet away [Shaw] on the porch of his row home
           talking loudly to himself with one of his arms extended
           upward above his head into the air. Fearing for her safety,
           [C.B.] quickly got out of her vehicle and ducked behind the
           driver’s side of her vehicle waiting for an opportunity to run
           to the front of her house. Simultaneously, she then heard
           a gunshot and observed a small flash of light emerge from

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1   18 Pa.C.S.A. §§ 6105, 907, and 2705.
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       around the hand area of [Shaw’s] extended arm. After the
       gunshot she heard something fall straight down or bounce
       off of another object. At the point she felt secure enough,
       she ran to her house for safety and called the police. The
       whole encounter lasted approximately two (2) minutes.

          [C.B.] lived at her house since 2009, knowing neighbors
       by their faces but not personally. She recognized [Shaw]
       from seeing him one or twice a month as her next-door
       neighbor. She was also familiar with the sound of a gunshot
       from a handgun based on past experience. [C.B.] later gave
       a statement to Detective Maurizio of the Philadelphia Police
       and identified her location and [Shaw’s] location from a
       Google Map photograph. [C.B.] also positively identified
       [Shaw] from a photograph presented to her by Detective
       Maurizio at 2:30 a.m. after the incident.

          On November 19, 2015 at 7:15 a.m., Detective Maurizio
       executed a search warrant at [Shaw’s] residence at 1244
       North 57th Street and recovered the following: a box labeled
       .45 auto, containing 20 live rounds; a box labeled .38
       special, containing 32 live rounds; two labeled 12-gauge
       sluggers, containing 5 live rounds each; two live rounds
       stamped 12 gauge; one fired cartridge casing stamped .38
       special; and a black BB gun ASG Model CZ75D. The BB gun
       recovered was operable and resembled a CZ75D
       semiautomatic pistol. [Shaw] did not possess a license to
       be in possession of the firearm and a previous conviction for
       involuntary manslaughter made him ineligible to possess
       any firearm.

          Following his arrest and while incarcerated, [Shaw] sent
       several letters to [C.B.] In the letters, [Shaw] apologized
       to her for the incident and purported that he had become
       aware that the Defender Association of Philadelphia was
       petitioning for her arrest and attached false supporting
       documents. One of these supporting documents was a
       forged Defender Association memorandum that called for
       [C.B.] to be arrested for both perjury and falsely reporting
       information to law enforcement authorities. Copies of the
       Philadelphia Police Department’s arrest memorandum and
       investigation report, as well as the notes of testimony from
       the preliminary hearing, were attached to the letter with
       handwritten notes claiming inconsistencies in [C.B.’s]
       statements. Several Pennsylvania criminal statutes and

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         sections of the Pennsylvania Rules of Criminal Procedure
         were also attached to the letter in [an] attempt to lend it an
         appearance of authenticity.

             [Shaw’s] nine telephone calls from prison while awaiting
         trial [as well the transcripts thereof were admitted at trial].
         On the calls between [Shaw] and his sister from February
         10 thru February 18, 2016, he appears to discuss the idea
         of offering money to [C.B.] to persuade her not to show up
         to testify at trial. On a series of calls from February 14,
         2016 to February 15, 2016, [Shaw] also spoke with his
         sister about retrieving a hidden item, presumably a weapon,
         to evade its discovery from the police.

Trial Court Opinion, 3/19/18, at 1-4 (citations, footnote, and references to

trial exhibits omitted).

      Based on this evidence, the trial court found Shaw guilty of the above

charges. On December 1, 2017, the court sentenced Shaw to an aggregate

term of three to six years of imprisonment. This appeal timely followed. Both

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

      Shaw raises the following issue on appeal:

         Is the evidence of record insufficient as a matter of law to
         convict Shaw of recklessly endangering another person, 18
         Pa.C.S.A. § 2705, because: (1) the only weapon recovered
         by police was a BB gun, (2) Shaw never aimed any BB gun
         or other instrument at C.B. or any other person, and (3)
         there was no damage observed in the porch roof where a
         projectile would have been discharged had Shaw been firing
         a firearm as opposed to a BB gun?

See Shaw’s Brief at 5.

      A claim challenging the sufficiency of evidence is a question of law, and

as such the standard of review is de novo and the scope of review is plenary.

Commonwealth v. Weimer, 977 A.2d 1103, 1104-05 (Pa. 2009).


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      When this Court reviews a challenge to the sufficiency of evidence, we

must determine whether the evidence admitted at trial, and all reasonable

inferences drawn therefrom, when viewed in the light most favorable to the

Commonwealth as verdict winner, was sufficient to prove every element of

the offense beyond a reasonable doubt. Commonwealth v. Wise, 171 A.3d

784, 790 (Pa. Super. 2017). Where there is sufficient evidence to allow the

trier of fact to find every element of the crime has been established beyond a

reasonable doubt, a challenge to the sufficiency of the evidence fails.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa. Super. 2016).

      The evidence established by the Commonwealth at trial need not

preclude every possibility of innocence, and the finder of fact is free to believe

all, part, or none of the evidence presented. Id. It is not within this Court’s

authority to re-weigh the evidence presented and substitute our own

judgment over that of the fact finder. Id. Moreover, the Commonwealth may

sustain   its    burden   of   proof   by    wholly   circumstantial   evidence.

Commonwealth v. Wise, 171 A.3d 784, 790 (Pa. Super. 2017).

      Finally, “a solitary witness’s testimony may establish every element of

a crime, assuming that it speaks to each element, directly and/or by rational

inference.”     Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa. Super.

2018) (emphasis omitted).

      “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

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death or serious bodily injury.” 18 Pa.C.S.A. § 2705. “Serious bodily injury”

is defined as “bodily 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.” 18 Pa.C.S.A. § 2301.

      Reckless endangerment of another person (“REAP”) requires the

creation of danger, so the Commonwealth must prove the existence of an

actual present ability to inflict harm to another.         Commonwealth v.

Reynolds, 835 A.2d 720, 727-28 (Pa. Super. 2003). This Court has held that

both a handgun and a BB gun are capable of causing serious bodily injury or

death. Commonwealth v. Peer, 684 A.2d 1077, 1081 (Pa. Super. 1996);

Commonwealth v. Ramos, 920 A.2d 1253, 1257 (Pa. Super. 2007).

However, the mere act of discharging a firearm does not on its own constitute

recklessly endangering another person. See Commonwealth v. Kamenar,

516 A.2d 770 (Pa. Super. 1986) (finding evidence insufficient to support

conviction where the accused fired a single gunshot away from the direction

of other people, into a wooded hillside behind his home); Commonwealth v.

Smith, 447 A.2d 282 (Pa. Super 1982) (finding evidence insufficient where

no evidence indicated that the rifle was fired at the witness, and it was just as

likely that the accused safely fired the rifle into the air). However, discharging

a firearm near another person is sufficient to support such a conviction.

Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009).

      To support his sufficiency challenge, Shaw references the fact that C.B.’s

testimony was equivocal as to whether he had a handgun or BB gun in his

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hand. Moreover, he argues that “[r]egardless of the item employed, there is

no dispute that the hand holding an object was pointed straight up over [his]

head” and that he “never pointed his hand or object toward [C.B.] or anyone

else.”      Shaw’s Brief at 14. In addition, he asserts that C.B. did not testify

as to any damage to the porch consistent with a handgun being fired and the

police did not note any such damage when they executed the search warrant

at Shaw’s house.      Given these facts, Shaw asserts that this Court’s prior

decisions in Kamenar, supra, and Smith, supra “are both apposite and

controlling.”    Shaw’s Brief at 15. As in those cases, Shaw contends that the

evidence presented by the Commonwealth in his case was insufficient to

support his REAP conviction. We disagree.

         The trial court found that the evidence presented by the Commonwealth

was similar to the facts of Hartzell, supra, a case in which this Court found

sufficient evidence to support the REAP conviction. The trial court explained:

           In Hartzell, a defendant placed two men in danger by
           discharging his firearm toward a creek near a bridge from
           approximately ninety (90) feet away, approximately
           twenty-five (25) to thirty (30) feet away from the men’s
           location on the bridge. While the defendant did not aim his
           firearm directly at the two men, the Superior Court found
           that since the water was shallow and there were rocks in the
           stream, it was hardly inconceivable that a bullet fired into
           the nearby stream could have struck a rock or other object
           and deflected up and hit one of them. The Court found that
           the actual discharging of a firearm in the vicinity of others
           constituted a sufficient danger of death or serious bodily
           injury to satisfy the statute of [REAP]. As for the mens rea
           of a conscious disregard of a known risk, the defendant’s
           purposeful shot into the water and awareness of the men on
           the bridge were more than enough to satisfy the needed


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         mental state. Therefore, the Court held that the evidence
         was sufficient to find the defendant guilty of [REAP].

             Here, [Shaw] discharged a firearm in close proximity to
         [C.B.], only fifteen (15) to twenty (20) feet away. While
         [Shaw] did not directly aim the firearm at [C.B.], he did
         discharge it above his head into the air, creating a risk of
         causing serious bodily injury under the same reasoning
         applied in Hartzell. The police recovered from [Shaw’s]
         residence a substantial amount of ammunition for shotguns,
         handguns, and BB guns. It is of particular note that among
         the ammunition recovered in [Shaw’s] home was a single
         fired cartridge casing stamped .38 special, which is primarily
         used in handguns. [C.B.] was unable to precisely identify
         the type of firearm utilized by [Shaw] but she believed the
         sound of its discharge to be the same from gunshots she
         had heard before. The recovered single fired cartridge
         casing and [C.B.’s] description of the gunshot sound and
         observed flash are strong circumstantial evidence that Shaw
         discharged a firearm.

Trial Court Opinion, 3/19/18, at 7-8 (citations omitted).

      The trial court further rejected the significance Shaw gave to the fact an

actual gun was never recovered, the fact that C.B. could not identify the

weapon used, and that Shaw never aimed a gun directly at her:

         The search of [Shaw’s] residence was executed seven (7)
         hours after the time of the incident, allowing ample time for
         [Shaw] to remove any handguns from his residence. During
         [Shaw’s] pre-trial incarceration in a recorded phone call, he
         also discussed with his sister about retrieving a weapon he
         had previously hidden, presumably a handgun. It is of no
         question either that a handgun is capable of causing serious
         bodily injury or death to allow for a conviction of [REAP].
         However, [Shaw’s] argument on appeal frames it as if the
         only firearm that should be considered is the recovered BB
         gun. But even within that framework, [Shaw’s] argument
         does not pass muster.

           The metallic ball projectile shot from the BB gun could
         have also easily caused serious bodily harm to [C.B.] The


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            BB gun recovered [from Shaw] was an ASG Model CZ75D,
            a spring-type gun capable of reaching a velocity of 207 feet
            per second (fps). At a minimum of approximately 197, fps,
            a BB gun can penetrate the cranium, fracture bones and
            permanently damage eyes. The discharged metallic ball
            could have feasibly struck [C.B.] or any other innocent
            bystander on its way back down to the ground or caused
            another object to fall onto her. [C.B] specifically testified
            that she heard something fall straight down or bounce off of
            another object immediately after [Shaw] discharged his
            firearm. Moreover, [Shaw] not only recklessly endangered
            [C.B], but also other occupants of his own row home and
            those in the immediate area. [Shaw’s] argument on appeal
            that he never specifically aimed his firearm at another
            person or in their general direction is of no consequence
            given the overall facts—his vicinity to [C.B.] and other in an
            urban residential area caused a sufficient danger of serious
            bodily injury as in Hartzell.

Trial Court Opinion, 3/19/18, at 8-9 (citations and footnotes omitted).

      Finally, the trial court found that the Commonwealth established the

requisite mens rea to support Shaw’s REAP conviction:

                As it regards the conscious disregard of a known risk,
            [Shaw’s] deliberate shot from his firearm in a residential
            neighborhood fulfills the awareness requirement. [C.B] was
            within twenty (20) feet of [Shaw] during most of the
            encounter. In addition, [Shaw] shared his row home with
            several other people in an urban residential neighborhood
            and, therefore, would have reasonably known others were
            likely nearby inside or outside of their homes. Furthermore,
            [Shaw’s] letters to [C.B.] expressing regret for his actions,
            hastily forged documents to pressure her not to appear at
            trial, and [Shaw’s] discussions on prison calls demonstrate
            a recognition of risk and guilt. Therefore, the evidence was
            sufficient to find [Shaw] guilty of [REAP].

Id. at 9.




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       Our review of the record supports the trial court’s conclusions.

Moreover, given these conclusions, Shaw’s reliance upon this Court’s previous

decisions in Kamenar and Smith is misplaced. First, in both of those cases,

there was no evidence that any person was in actual danger of being injured

or killed by the gunshot.        In Kamenar the gun was fired into a deserted

wooded hillside, and in Smith no evidence indicated that the gun was fired in

a direction that would not endanger the only witness.       Here, Shaw fired a

handgun into his porch ceiling with a witness mere feet away.            Like in

Hartzell, Shaw’s actions recklessly endangered another person because it is

possible that the shot could have ricocheted off the porch ceiling toward C.B.

as she hid behind her car, creating a risk of serious bodily harm.

       Moreover, as noted by the trial court, even if the shot had come from a

BB gun, C.B. was still in danger of serious bodily harm. Although the trial

court characterized Shaw as discharging his weapon “in the air,” he did not do

so toward from a distance or into the sky above: rather Shaw discharged his

weapon into the ceiling of his porch in an urban residential area. He was in

close vicinity to both C.B. and other people who lived in nearby row homes.

It is feasible that the projectile could have struck C.B. or another person.2

Like in Hartzell, this created a sufficient danger of serious bodily injury.

____________________________________________


2 While we only discuss the BB gun, circumstantial evidence indicates an actual
firearm may have been used on the night in question. Our analysis would be
the same. Ramos, supra; Trial Court Opinion, 3/19/18, at 7-8.




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       We find that the Commonwealth proved beyond a reasonable doubt that

Shaw engaged in conduct that placed another in danger of death or serious

bodily injury. It is not within our province to re-weigh the facts found by the

trial court as finder of fact. Rodriguez, supra.3 It is our job to determine

whether each element was established beyond a reasonable doubt based on

the evidence found by the trial court, and as such we find that the evidence

was sufficient to sustain Shaw’s conviction for recklessly endangering another

person.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/19




____________________________________________


3 Shaw’s claim that the Commonwealth failed to introduce evidence of damage
to the porch’s ceiling involves the weight the trial court assigned the evidence
presented by the Commonwealth, not its sufficiency.


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