J-S23010-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
ALEXIS DELACRUZ,                           :
                                           :
                   Appellant               : No. 547 EDA 2014

           Appeal from the Judgment of Sentence January 16, 2014,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0006735-2012

BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED MAY 15, 2015

       Alexis Delacruz (“Delacruz”) appeals from the judgment of sentence

entered on January 16, 2014 by the Court of Common Pleas of Philadelphia

County, Criminal Division, following his convictions of recklessly endangering

another person (“REAP”), persons not to possess, use, manufacture, control,

sell or transfer firearms, and carrying firearms on public streets or public

property in Philadelphia.1 We affirm.

       The trial court summarized the relevant facts of this case as follows:

             On December 29, 2011, at approximately 8:30 p.m.,
             [Delacruz] had a disagreement with his ex-girlfriend,
             Alicia Martinez, at her grandmother’s house on 3419
             Kip Street in Philadelphia. The argument turned
             violent, and Martinez’s mother, who was also present
             at the residence, telephoned Michael Jones
             [(“Jones”)], the complainant, to come to the scene.
             Jones arrived shortly after, along with Frank Dyches


1
    18 Pa.C.S.A. §§ 2705, 6105(a)(1), 6108.


*Retired Senior Judge assigned to the Superior Court.
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          [(“Dyches”)], the boyfriend of Alicia Martinez’s
          mother. Jones and Dyches spoke first to Martinez
          inside the house, and then to [Delacruz] outside of
          the house. The conversation outside of the house
          lasted for approximately [ten] minutes. According to
          [Jones’] testimony, [Delacruz] mumbled something
          and walked away. As Jones and Dyches walked
          away, Jones heard a gunshot from behind him.
          Jones then turned and saw [Delacruz] running from
          the block.

          [Jones’] trial testimony differs from the original
          statement he gave police on the night of the
          shooting.    According to [Jones’] statement, after
          [Delacruz] walked away from the conversation,
          Jones overheard him on the phone telling someone
          to “bring the hammer around.” Jones understood
          “hammer” to mean gun.        Jones then witnessed
          another man, who he believed may have been
          [Delacruz]’s brother, handing [Delacruz] a silver
          gun.    [Delacruz] began to approach Jones, who
          called out to him, “What, you want to shoot me?
          Shoot me then.” [Delacruz] pointed the gun at
          Jones. As Jones turned away from [Delacruz], the
          shot was fired.

          In his testimony, Jones claimed that his police
          statement was incorrect: he did not see a gun, and
          while he heard a gunshot, he does not know who
          was responsible for it.      Jones claimed that his
          statement was confused with [Dyches’]. Detective
          Patrick Winward [(“Detective Winward”)] took
          [Jones’] statement on the night of the shooting.
          Detective Winward testified that Jones was friendly
          and cooperative on the night the statement was
          taken, and arrived in his own transportation. Jones
          signed the statement and also initialed it where an
          error had been corrected. Detective Winward also
          took [Dyches’] statement that night.         It was
          consistent with [Jones’] statement.

          Police responded to the 3400 block of Kipp Street at
          8:34 PM and secured the area. Philadelphia Police



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            Officer   Terrence     Mulvey   [(“Officer   Mulvey”)]
            recovered a .9mm fired cartridge case from the
            scene later that night. Officer Robert Stott [(“Officer
            Stott”)]    of  the    Philadelphia   Police   Firearm
            Identification Unit offered expert testimony that the
            shell casing found on the scene indicated that a shot
            had been fired in the immediate area.

            Prior to the start of trial, Detective Martin Sheeron
            [(“Detective Sheeron”)] was assigned to find Dyches
            when he failed to appear in court for the scheduled
            preliminary hearing. Detective Sheeron continued to
            search for Dyches when he failed to appear at trial,
            but his efforts were unsuccessful. Jones, himself,
            failed to appear in court on three separate dates. He
            did appear for the preliminary hearing on June 6,
            2012. That day, an intern at the Philadelphia District
            Attorney’s Office overheard Jones on a phone call
            outside of the courtroom. He said, “I don’t know
            why they are threatening me, I’m not going to say
            shit about the case or nothing.”        Following the
            telephone call, [Jones’] testimony changed from his
            police statement.

Trial Court Opinion, 9/10/14, at 2-3 (record citations omitted).

      On August 30, 2013, a jury found Delacruz guilty of the above-

referenced crimes. On January 16, 2014, the trial court sentenced Delacruz

to an aggregate term of six to twelve years of incarceration. On February

12, 2014, Delacruz filed a timely notice of appeal.

      On appeal, Delacruz raises the following issue for our review and

determination:   Was the evidence insufficient to sustain a conviction of

REAP? Delacruz’s Brief at 3. In reviewing a challenge to the sufficiency of

the evidence, our standard of review is as follows:




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            As a general matter, our standard of review of
            sufficiency claims requires that we evaluate the
            record in the light most favorable to the verdict
            winner giving the prosecution the benefit of all
            reasonable inferences to be drawn from the
            evidence.   Evidence will be deemed sufficient to
            support the verdict when it establishes each material
            element of the crime charged and the commission
            thereof by the accused, beyond a reasonable doubt.
            Nevertheless, the Commonwealth need not establish
            guilt to a mathematical certainty. Any doubt about
            the defendant’s guilt is to be resolved by the fact
            finder unless the evidence is so weak and
            inconclusive that, as a matter of law, no probability
            of fact can be drawn from the combined
            circumstances.

            The Commonwealth may sustain its burden by
            means     of     wholly    circumstantial    evidence.
            Accordingly, [t]he fact that the evidence establishing
            a    defendant’s   participation   in   a   crime    is
            circumstantial does not preclude a conviction where
            the evidence coupled with the reasonable inferences
            drawn therefrom overcomes the presumption of
            innocence. Significantly, we may not substitute our
            judgment for that of the fact finder; thus, so long as
            the evidence adduced, accepted in the light most
            favorable to the Commonwealth, demonstrates the
            respective elements of a defendant’s crimes beyond
            a reasonable doubt, the appellant’s convictions will
            be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted).   Importantly, “the jury, which

passes upon the weight and credibility of each witness’s testimony, is free to

believe all, part, or none of the evidence.” Commonwealth v. Ramtahal,

33 A.3d 602, 607 (Pa. 2011).




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     Section 2705 of the Crimes Code defines the crime of 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. § 2705. 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.A.

§ 2301. To support a REAP conviction, the conduct in question must create

an actual, not merely theoretical or perceived, danger. Commonwealth v.

Cancilla, 649 A.2d 991, 994 (Pa. Super. 1994) (“Danger, and not merely

the apprehension of danger, must be created. Therefore … (“[18 Pa.C.S.A.]

§ 2705 retains the common law assault requirement of actual present ability

to inflict harm.”) (quoting Commonwealth v. Trowbridge, 395 A.2d 1337,

1340 (Pa. Super. 1978)). To establish the existence of an actual danger of

death or serious bodily injury in a REAP case involving a gun, the

Commonwealth must establish that the gun was loaded to secure a

conviction. See Commonwealth v. Smith, 437 A.2d 757, 759 (Pa. Super.

1981) (holding that REAP conviction based on threat of shooting requires

proof that the firearm was loaded).

     First, Delacruz argues that the evidence was insufficient to sustain his

conviction of REAP because there was no evidence that Delacruz actually

fired a gun during the incident. Delacruz’s Brief at 10, 13. Delacruz asserts



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that there were several other people outside with him during the incident,

and any one of those people could have fired the gun. Id. at 11. Second,

Delacruz contends that there was no evidence that when he pointed the gun

at Jones, prior to the gunshot, that it was loaded. Id. at 10-11, 13. Third,

Delacruz claims that even if he fired the gun, there was no evidence as to

the direction in which he was pointing the gun when he fired it. Id. at 11.

      Delacruz relies entirely on the change in Jones’ recollection of the

incident from when Jones gave his statement to police to when he testified

at trial. At trial, Jones testified that he did not see a gun and that while he

heard a gunshot, he did not know who fired the gun. N.T., 8/27/13, at 84-

92.   In this regard, Delacruz ignores the requirement that we view the

evidence in the light most favorable to the Commonwealth and that the jury

was free to believe all, part, or none of the evidence, including Jones’

statement to police.

      The   evidence,   viewed    in     the   light   most   favorable   to   the

Commonwealth, establishes the following.          During the course of a fight

Delacruz was having with his ex-girlfriend, Jones and Dyches arrived at the

scene and spoke with Delacruz.         N.T., 08/27/2013, at 72-83.    Jones and

Dyches spoke with Delacruz for a few minutes before Delacruz mumbled

something and walked away. Id. at 82-83. According to Jones’ statement

to police, after Delacruz walked away from his conversation with Jones and

Dyches, Jones overheard Delacruz telling someone to “bring the hammer



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around.” N.T., 08/27/2013, at 100. Jones knew “hammer” to mean a gun.

Id. Jones told police that he then observed another man hand Delacruz a

silver nine-millimeter gun.   Id. at 100, 110-11.   Jones further told police

that as Delacruz approached Jones with the gun, Jones said to him, “What,

you want to shoot me? Shoot me then.”       Id. at 101. According to Jones’

statement to police, Delacruz then pointed the gun at Jones and as Jones

turned away from Delacruz, Delacruz fired the gun.      Id. at 101, 110-11.

Later that night, Officer Mulvey recovered a discharged nine-millimeter shell

from the scene. N.T., 08/28/2013, at 127-28.2 Officer Stott testified that

the recovery of this shell casing indicated that a shot had been fired in the

immediate vicinity. Id. at 118.

     Therefore, the certified record reflects that Delacruz fired a gun during

the incident, that when he pointed the gun at Jones, it was loaded, and that

he pointed the gun in Jones’ direction when he fired the gun. Thus, each of

Delacruz’s arguments fails.   It is immaterial that Jones’ recollection of the

incident changed from the time he gave his statement to police to the time

of trial as the jury was free to believe the version of the incident that he

originally gave to police. See Ramtahal, 33 A.3d at 607. Accordingly, we

conclude that the evidence was sufficient to sustain the REAP conviction.

     Judgment of sentence affirmed.



2
  The transcript from August 28, 2013 is incorrectly labeled as August 28,
2012 in the certified record on appeal.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2015




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