J-S47019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DESMON M. RAMOS,

                         Appellant                   No. 1983 EDA 2013


          Appeal from the Judgment of Sentence of June 12, 2013
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0010516-2010
                          CP-51-CR-0010517-2010

BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 13, 2014

      Appellant, Desmon M. Ramos, appeals from the judgment of sentence

entered on June 12, 2013. We affirm.

      The trial court has ably summarized the underlying facts and

procedural posture of this case. As the trial court explained:

        The first complainant, [W.D.], testified that on August 4,
        2010, at approximately 4:40 in the afternoon[,] he was
        [traveling] home on the trolley along Woodland Avenue
        from his workplace in [Center City Philadelphia]. Seated
        next to [W.D.] on the two-seat bench was [Appellant].
        [W.D.] testified that he was tired and was falling in and out
        of sleep, but that he remembered being awakened by the
        mumbling of [Appellant]. [W.D.] was awakened again when
        [Appellant], who was seated next to the window, asked
        [W.D.] to get up so that [Appellant] could pass him. [W.D.]
        awoke a third time to find [Appellant leaning] over him and
        trying to attack the man directly behind him.          [W.D.]
        testified that [Appellant] was holding an object in his hand
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       attempt to secure the object [Appellant] was holding.
       [Appellant] then moved toward the door of the trolley and
       literally dragged [W.D.] with him.      [W.D.] wrapped

       there until [Appellant] dropped the object, which [W.D.]
       identified as a flat-head [screwdriver] with a black and
       yellow handle. Once [Appellant] dropped the [screw driver,
       W.D.] released his grip, and [Appellant] fled.     [W.D.]
       received a cut on his hand during the attack.

       The second complainant, [A.D.], testified that on August 4,
       2010, he was sitting on the trolley directly behind [W.D.,]
       along with a female friend who was sitting behind




       [A.D.] testified that when the trolley came to a stop at 53rd
       Street[, Appellant] asked [W.D.] if he could pass him, but



       [A.D.] suffered a small cut on [his] wrist as a result. [W.D.]
       subdued [Appellant], who then fled the trolley. After the
       police arrived[, A.D.] was asked to accompany an officer in
       his vehicle to identify [Appellant], who had been detained.

       Philadelphia Police Officer Kenneth Sherard testified that at
       approximately 4:40 p.m. on August 4, 2010[,] he
       responded to a call of a reported stabbing at 53rd and
       Woodland Avenue. On arrival[,] Officer Sherard observed
       [W.D], who had blood on his hands, and [A.D.], who had
       puncture wounds on his left forearm.        Officer Sherard
       recovered a [screwdriver] from [W.D.,] which had an
       orange and black handle and was approximately eight
       inches long. After taking a description from [W.D.] and
       [A.D.], Officer Sherard put out flash information describing
       the suspect. Upon receiving word that [Appellant] had been
       apprehended[,] Officer Sherard drove [A.D.] approximately
       a block away, whereupon [A.D.] identified [Appellant].




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        Philadelphia Police Detective Keith Scott testified that on the
        day of the assault he was on foot patrol in the vicinity of
        53rd and Woodland when he received a call to investigate a
        stabbing incident. Shortly afterward he and his partner
        detained [Appellant], who matched the description of the
        assailant, and held [Appellant] until [A.D.] was brought to
        the scene and made a positive identification.

                                     ...

        On August 4, 2010, [Appellant] was arrested and charged
        [with two counts each of]: (1) aggravated assault pursuant
        to 18 Pa.C.S.A. § 2702(a)(4), (2) possession of an
        instrument of a crime with intent to employ it criminally
        pursuant to 18 Pa.C.S.A. § 907(a), (3) simple assault
        pursuant to 18 Pa.C.S.A. § 2701(a), [and] (4) recklessly

        pursuant to 18 Pa.C.S.A. § 2705. . . .

        [Appellant proceeded to a bench trial. With respect to
                                    , the trial court found Appellant
        guilty of aggravated assault, simple assault, and REAP, but
        not guilty of possession of an instrument of crime. With

        found Appellant guilty of possession of an instrument of
        crime, and the trial court entered a judgment of acquittal
        prior to disposition on the aggravated assault, simple
        assault, and REAP charges].

        On June 12, 2013[, the trial court sentenced Appellant] to
                                                       n on the
        [possessing an instrument of crime conviction] and five


        sentence was imposed on [the simple assault and REAP
        convictions, as the trial court believed that the crimes]
        merged with the charge of aggravated assault.

Trial Court Opinion, 12/19/13, at 1-4         (some    internal citations and

capitalization omitted).




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      Appellant filed a timely notice of appeal.   Appellant raises one claim

before this Court:

        Did not the trial court err in finding [Appellant] guilty of
        [REAP] in that there was insufficient evidence that
        [Appellant] engaged in conduct that placed [A.D.] in danger
        of death or serious bodily injury?



      We review Appell

following standard:

        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 [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
                                                         -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. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806

(Pa. Super. 2008).


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J-S47019-14



      Our Crimes Code defines REAP 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.

18 Pa.C.S.A. §

which creates a substantial risk of death or which causes serious, permanent

disfigurement, or protracted loss or impairment of the function of any bodily



crime of REAP is a crime of assault which requires the creation of danger.

As such, there must be an actual present ability to inflict harm. . . . [T]he

mere apparent ability to inflict harm is not sufficient.   Danger, and not

                                                         Commonwealth v.

Reynolds, 835 A.2d 720, 727-728 (Pa. Super. 2003) (internal quotations

and citations omitted).

      According to Appellant, the evidence was insufficient to support his



                                                                  pecifically,



could not have found Appellant guilty of REAP. Id.

      At the outset, Appellant is incorrect to claim that he could not have

been convicte                                    actual injuries were minor.



may place another person in danger of

Pa.C.S.A. § 2705 (emphasis added).      Thus, under the plain terms of the

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statute, a REAP conviction is supportable even where the victim suffered no

actual injury whatsoever. Commonwealth v. Rahman, 75 A.3d 497, 502-

503 (Pa. Super. 2013) (evidence was sufficient to support REAP conviction

where the defe



actually fall down the stairs, the evidence was sufficient to place the officer




         Commonwealth v. Hartzell, 988 A.2d 141, 143-144 (Pa. Super.

2009) (explaining that the evidence was sufficient to support the appel



distance of approximately 30 yards, appellant fired into the creek near the



bridge. Although appellant may not have pointed the weapon directly at the

two [victims], it was pointed in their general direction.         Moreover, the

evidence established that the water was rather shallow and there were rocks

in the stream. . . . Thus, it is hardly inconceivable that a bullet fired into the

stream nearby could have struck a rock or other object and deflected up and

                           Reynolds, 835 A.2d at 729 (pointing a loaded gun

at an individual created the danger of death or serious bodily injury and the



      In the case at bar,

                                              and actually stabbing     A.D. with

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J-S47019-14



a sharp, eight-inch-long screwdriver in close quarters constituted conduct



                               2705. As the trial court so well explained:

        The Commonwealth presented convincing evidence from
        two eyewitnesses that [Appellant], without provocation,
        aggressively attacked [A.D.]. The instrument used for the
        attack was an [eight-inch-long screwdriver], which was
        sharp enough to pierce the skin of [W.D.] and [A.D.] during
        the incident. This [screwdriver] was clearly capable of
        being a dangerous weapon when used in the manner
        employed by [Appellant]. The violent and intentional nature

        the weapon over his head and bringing it down on [A.D.] in

        thrusts did not inflict more serious injury and that [W.D.]
        was able to quickly subdue [Appellant], but the evidence
        presented was more than sufficient to show that
                                  ed . . . [A.D.] in danger of death

        sufficient for the [trial court] to find beyond a reasonable

        such injury.

Trial Court Opinion, 12/19/13, at 6.



      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2014



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