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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

KALHEEM HILL-EL

                          Appellant                   No. 1755 EDA 2014


             Appeal from the Judgment of Sentence May 16, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009576-2012


BEFORE: BOWES, PANELLA, AND FITZGERALD, *JJ.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 16, 2015

       Kalheem Hill-El appeals from the May 16, 2014 judgment of sentence

of seven and one-half to eighteen years incarceration, which was imposed

after he was convicted of two counts each of robbery, conspiracy to commit

robbery, recklessly endangering another person (“REAP”), terroristic threats,

simple assault, and one count each of aggravated assault, persons not to

possess a firearm, carrying a firearm without a license, carrying a firearm on

the public streets of Philadelphia, possession of an instrument of crime

(“PIC”), and related offenses. After careful review, we affirm.

       The facts giving rise to Appellant’s convictions are summarized from

the transcript of the February 28, 2014 non-jury trial, which incorporated

the testimony from the suppression hearing on the same day.                At


*
    Former Justice specially assigned to the Superior Court.
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approximately 11:00 p.m. on July 28, 2012, Elliot Sharpe and Severin

Tucker were walking to a friend’s house in the area of 46 th Street and

Kingsessing Avenue in Philadelphia. As they were walking, Appellant passed

them on a bicycle, slowed, “took an extended look at” them, pulled his hood

up, turned around, and rode back toward them.       N.T., 2/28/14, 6-9.   As

Appellant approached the men, he brandished a silver handgun. Id. at 13,

45. His cohort, Stephen Powell, appeared from behind the men and ordered

them to sit on the ground. Id. at 7-8. Appellant instructed both Sharpe and

Tucker to empty their pockets, hand over their belongings, and reveal their

personal identification numbers (“PIN”) for their bank machine cards. Id. at

11. Appellant said they would be harmed if they did not comply. Id. The

victims gave up their belongings but could not remember their PINs.       Id.

When Mr. Tucker attempted to call for help, Appellant struck him twice in the

face with the handgun.     Mr. Tucker sustained injury to his lip and two

chipped front teeth. Id. at 18.

     At that time, Sergeant Paul Haye and Officer Anthony Britton of the

Philadelphia Police Department were on patrol in an unmarked car due to a

high volume of robberies in the area. Id. at 63. As they traveled eastbound

on Kingsessing Avenue, they noticed Appellant and Stephen Powell standing

over two men who were sitting on the ground. Id. Believing the event to

be a robbery in progress, Officer Britton executed a U-turn and pulled the

vehicle alongside Appellant and Powell.     Id.   Sergeant Haye saw what

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appeared to be a silver gun in Appellant’s hand. Id. at 64. After exiting the

vehicle, Sergeant Haye detained Powell.     Officer Britton chased Appellant,

who fled westbound on Kingsessing on his bicycle. Id. Sergeant Haye put

out flash information on the police radio describing Appellant. Id. at 66, 78.

Within a minute, Philadelphia Police Officer William Thrasher and his partner

observed a man matching the description riding his bike on the 4600 block

of Linmore Street, just a few blocks away from the site of the robbery. Id.

at 78-79, 81. They saw Appellant throw items over a fence into a nearby

yard.    Id. at 79.   After detaining the man later identified as Appellant,

Officer Thrasher recovered two cell phones from the yard that belonged to

the victims. Id.

        The following day, Philadelphia Police Officer Raymond Baysmore

received a call to proceed to 1321 South May Street.          Id. at 84.    A

homeowner at that address reported that she found a gun and a wallet in

her rear yard. Id. The officer recovered a small caliber silver handgun and

a wallet containing cards and IDs bearing Severin Tucker’s name. Id. The

yard was located near 4600 Linmore Street where Appellant was arrested

and the cell phones were recovered. Id. at 85. It was stipulated that the

firearm was operable and capable of firing bullets, that Appellant did not

have a license to carry it, and that he was a person ineligible to possess a

firearm. Id. at 87.




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      Following an unsuccessful motion to suppress, Appellant waived his

right to a jury trial and proceeded non-jury.             The court below found

Appellant guilty as charged and sentenced him to seven and one-half to

eighteen years imprisonment. Appellant timely appealed and complied with

the court’s order to file a concise statement of errors complained of on

appeal under Pa.R.A.P. 1925(b).           He presents the following sufficiency

challenge for this court’s consideration.

      1. Whether the evidence presented at trial was sufficient to
         convict Appellant of Aggravated Assault, Recklessly
         Endangering Another Person, Violations of the Uniform
         Firearms Act § 6105, 6106, and 6108, and Possession of an
         Instrument of Crime.

Appellant’s brief at 3.

      In conducting a sufficiency of the evidence review, we examine all of

the    evidence      admitted,     even      improperly     admitted   evidence.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).

We consider the evidence in the light most favorable to the verdict winner,

herein the Commonwealth, drawing all possible inferences from the evidence

in its favor. Id. When evidence exists to allow the fact-finder to determine

beyond a reasonable doubt each element of the crimes charged, the

sufficiency claim will fail. Id.

      The evidence need not preclude the possibility of innocence entirely.

The fact finder is free to believe wholly or in part, whatever evidence it

chooses.    Id.    Additionally, the Commonwealth may prove its case by



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circumstantial evidence alone. It is only when “the evidence is so weak and

inconclusive that, as a matter of law, no probability of fact can be drawn

from the combined circumstances,” that the defendant is entitled to relief.

Id. This Court is not permitted “to re-weigh the evidence and substitute our

judgment for that of the fact finder.” Id.

      First, Appellant challenges the sufficiency of the evidence supporting

his aggravated assault conviction. A person is guilty of aggravated assault if

he “attempts to cause serious bodily injury to another, or causes such injury

intentionally, knowingly or recklessly under circumstances manifesting

extreme indifference to the value of human life.” 18 Pa.C.S. § 2702(a)(1).

"Serious bodily injury" is defined 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.” 18 Pa.C.S. § 2301. Appellant argues that he did not cause serious

bodily injury and that he lacked the intent to cause serious bodily injury.

      Appellant   cites   Commonwealth v. Alexander,           383   A.2d     887

(Pa.Super. 1978), in support of his position.     In Alexander, the attacker

punched his victim once in the face causing injury. The court held that one

isolated punch that did not cause serious bodily injury, without more, was

insufficient to constitute aggravated assault.   In determining whether the

defendant intended to cause serious bodily injury, the court identified a

number of factors that, if present, could demonstrate such intent.       These


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factors include: (i) whether the attacker was disproportionately larger than

the victim; (ii) whether the attacker was restrained from further escalating

his attack; (iii) whether there was a weapon present; and (iv) statements

made before and after the attack that would indicate intent to do further

harm. Id. at 889.

      Appellant argues that Mr. Tucker’s cut lip and chipped teeth were not

serious injuries.    Furthermore, according to Appellant, application of the

Alexander factors does not support a finding of intent to cause serious

bodily injury as there was no evidence that the gun was loaded, Appellant

was   not    disproportionately   larger   than   his   victims,   and   Appellant’s

statements did not indicate any intention to do further harm.

      Contrary to Appellant, we find that application of the Alexander

factors supports the aggravated assault conviction.           Appellant does not

dispute that a gun was involved, which satisfies one of the Alexander

factors.    Furthermore, the record is silent regarding any size differential

between Appellant and his victims. Nonetheless, we believe the presence of

a firearm diminishes the importance of that factor.          After threatening his

victims with injury, Appellant injured Mr. Tucker by striking him in the face

with the handgun.      Finally, the robbery and assault were ongoing when

police intervened.

      More recently, in Commonwealth v. Fortune, 68 A.3d 980, 984

(Pa.Super. 2013), this Court held that the intent to cause serious bodily


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injury for aggravated assault may be inferred from circumstances, conduct,

and acts which constitute a “substantial step” towards the infliction of

serious bodily injury. Therein the defendant held his victim at gunpoint and

threatened to hurt her if she did not relinquish her keys. Id. at 986. We

upheld the aggravated assault conviction, finding that the acts and

circumstances rose above the level of merely pointing a gun at someone,

which constitutes simple assault. Id. We ruled that the threat, coupled with

the pointing of a gun, were circumstances evidencing an intent to cause

serious bodily injury.

      In the instant case, Appellant held his victims at gunpoint, threatened

injury, and struck and injured one of the victims with the gun when he

attempted to call for help. Thus, Appellant did not merely point a gun at the

two men, but took a substantial step toward the infliction of serious bodily

injury.   We find this evidence sufficient to support his aggravated assault

conviction.

      Next, Appellant challenges his REAP conviction.     A person commits

REAP 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. § 2705. 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. 18 Pa.C.S. § 302.




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      Appellant contends that he did not recklessly place his victims in any

danger because there was no evidence that the gun was loaded. He relies

upon In re Maloney, 636 A.2d 671, 675 (Pa.Super. 1994), for the

proposition that REAP requires “a present ability to inflict death or serious

bodily injury by showing that the gun is loaded or the surrounding

circumstances are inherently dangerous.”

      The trial court found this offense to be a lesser-included offense of

aggravated assault, and held that the same evidence supporting the

aggravated    assault    conviction    supported    the   REAP     conviction.

Commonwealth v. Smith, 956 A.2d 1029 (Pa.Super. 2008).             We agree.

This alone is dispositive of Appellant’s claim.      In addition, Appellant’s

reliance upon In re Maloney is misguided. In that case, we were reviewing

the district attorney’s refusal to approve a private complaint for REAP,

aggravated assault, and terroristic threats based upon the actor pointing a

gun at the complainant through the car windshield and ordering him to "Get

the f--- out of here."   Id. at 672.   On appeal, we held that the district

attorney could properly find the absence of cause to prosecute for REAP on

these facts, noting that there was no averment that the gun was loaded. We

cited Commonwealth v. Sanders, 627 A.2d 183 (Pa.Super. 1993), and

Commonwealth v. Savage, 418 A.2d 629, 632 (Pa.Super. 1980), for the

proposition that the mere act of pointing a gun at another person was not

sufficient to support the inference that the actor intended to cause bodily or


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serious bodily injury to the complainant. We distinguished Commonwealth

v. Rivera, 503 A.2d 11 (Pa.Super. 1985) (en banc), where the defendant

not only pointed a gun at his victims, but also threatened and robbed them.

The REAP conviction was upheld even though the Commonwealth did not

introduce evidence that the gun was loaded.

        The REAP statute does not require a loaded gun. A REAP conviction

will be sustained where the circumstances show that Appellant “had an

actual present ability to inflict harm and not merely the apparent ability to

do so.”    Commonwealth v. Cordoba, 902 A.2d 1280, 1288 (Pa. 2006).

Herein, Appellant threatened his victims and then wielded his gun like a

club.   The fact that the gun was unloaded did not prevent Appellant from

using it to beat and injure his unarmed victim. This claim fails.

        With regard to Appellant’s convictions under the Uniform Firearms Act,

18 Pa.C.S. §§ 6105, 6106 (a)(1), and 6108, Appellant argues that since

police did not recover a weapon from him when they arrested him, the

evidence was insufficient to prove that he possessed a firearm, an element

of each of the three firearms’ offenses.      Section 6105, persons not to

possess a firearm, prohibits those who have been convicted of certain

enumerated offenses from possessing a firearm.           Section 6106 (a)(1)

prohibits one from carrying a firearm on or about his person without a

license. Section 6108 provides that “No person shall carry a firearm, rifle or

shotgun at any time upon the public streets or upon any public property in”


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Philadelphia. Appellant claims that all three convictions are infirm because

the police never stated definitively that it was a gun in Appellant’s

possession.

      We find this argument untenable. Sergeant Haye testified that he saw

a silver object that looked like a firearm in Appellant’s possession.   N.T.,

2/28/14, at 64, 78.     Officer Baysmore recovered a firearm matching the

description provided by the victims and Sergeant Haye, together with cards

and IDs belonging to one of the victims, from a yard located near the area

where Appellant was apprehended.      Id. at 78.   Most importantly, the two

victims testified that Appellant was carrying a silver handgun and that he

struck Mr. Tucker in the face with it. Id. at 13, 18. This latter testimony

alone was sufficient to establish the possession element required for the

firearms convictions.

      Finally, Appellant disputes the sufficiency of the evidence supporting

his PIC conviction under 18 Pa.C.S. § 907(a). That subsection provides that,

“A person commits a misdemeanor of the first degree if he possesses any

instrument of crime with intent to employ it criminally.”   Appellant argues

that, under Commonwealth v. Brown, 409 A.2d 108 (Pa.Super. 1979), he

should have been charged under subsection (b) of that statute as that

subsection specifically refers to firearms.   Subsection (b) provides that “a

person commits a misdemeanor of the first degree if he possesses a firearm

or other weapon concealed upon his person with intent to employ it


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criminally.” 18 Pa.C.S § 907(b). Appellant maintains that, when the same

facts that would constitute an offense under one statute also constitute an

offense under a second statute, and the first statute is specific and the

second statute is general, the first governs where the facts bring the offense

within it. Brown, supra at 153.

      As the Commonwealth correctly notes, the rule in Brown was

abrogated by statute. See Commonwealth v. Nypaver, 69 A.3d 708, 714

(Pa.Super. 2013) (holding that “the enactment of 42 Pa.C.S. § 9303 has

halted operation of section 1933's ‘general-specific’ rule of statutory

construction in the context of criminal prosecutions”).   The applicable law,

42 Pa.C.S. § 9303, provides that “where the same conduct of a defendant

violates more than one criminal statute, the defendant may be prosecuted

under all available statutory criminal provisions without regard to the

generality or specificity of the statutes.”   Therefore, Appellant’s reliance

upon Brown is misplaced.

      We also agree with the Commonwealth that even if the specific-

general rule were still in effect, it would not apply herein. Subsection (b) of

the PIC statute requires an additional element that is not required in

subsection (a) and that was not present in this case, i.e., concealment. Due

to this additional element, subsection (b) is an entirely “particular and

specific   penal   provision”   which   addresses   a   “distinct   subset   of

circumstances” from that of subsection (a). See Commonwealth v. Leber,


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802 A.2d 648, 650 (Pa.Super. 2002). There was no evidence in the record

that Appellant concealed his firearm with the intent to employ it criminally.

On the other hand, there was proof that Appellant possessed an instrument

of crime because the victims testified that Appellant used a gun to complete

the robbery and to strike Mr. Tucker twice in the face.   The evidence was

sufficient to sustain Appellant’s conviction under subsection (a) of the PIC

statute.

      After a thorough review of the record, we find no merit in Appellant’s

contentions and no relief is due.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




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