J-S46044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                    Appellee                 :
                                             :
              v.                             :
                                             :
KENYA HERRING,                               :
                                             :
                    Appellant                :           No. 1000 EDA 2014

        Appeal from the Judgment of Sentence entered on March 6, 2014
             in the Court of Common Pleas of Philadelphia County,
                 Criminal Division, No. CP-51-CR-0006660-2013

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED AUGUST 07, 2015

        Kenya Herring (“Herring”) appeals from the judgment of sentence

entered following her conviction of aggravated assault of a police officer,

possessing an instrument of crime (“PIC”), simple assault, recklessly

endangering another person (“REAP”), and public drunkenness.1 We reverse

Herring’s conviction of PIC, and vacate her sentence as to that conviction.

We affirm Herring’s judgment of sentence as to her remaining convictions.

        In its Opinion, the trial court described the facts underlying the instant

appeal as follows:

               Police Officer David Tamamato [“Officer Tamamato”] was
        on duty in full uniform with his partner, Police Officer Erick Ruck
        [“Officer Ruck”,] on March 16, 2013, at 11:30 p.m., on the 5600
        block of North Broad Street in Philadelphia, PA. On that date
        and time, the officers were out of their patrol car conducting a
        pedestrian investigation of a male[,] who was urinating on the

1
    18 Pa.C.S.A. §§ 2702, 907, 2701, 2705, 5305.
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      highway. Officer Tamamato was covering his partner[, Officer]
      Ruck[,] as he dealt with the male pedestrian. [Herring] was
      walking along the sidewalk when she approached Officer
      Tamamato on his right side with two cups of coffee in her hand.
      Herring stopped and asked Officer Tamamato if the beer store
      was open. The Officer replied he didn’t know, and directed
      [Herring] across the street to the store’s location. [Herring]
      inquired a second time and attempted to walk between the two
      police officers. Officer Tamamato instructed her to walk around
      the investigation—extending his hand out to prevent [Herring]
      from coming between them and the suspect.

             [] Officer Tamamato testified [that Herring] responded, “I
      can walk anywhere I want, bitch,” and threw both cups of coffee
      directly in his face, hitting his right cheek and right eye. The
      coffee was hot and [Officer Tamamato] felt burning when it hit
      his skin. He [later] saw redness around his eye area. [Officer
      Tamamato] observed [that Herring] had a strong odor of alcohol
      on her breath and slurred speech. Officer Tamamato believed
      [Herring] to be under the influence of alcohol[,] and placed
      [Herring] in custody.

           Officer Tamamato was transported to Albert Einstein
      Medical Center for treatment[,] where he received a flush for his
      eye. There was a redness to the officer’s face and cheek.

Trial Court Opinion, 2/4/15, at 1-2.

      Following a bench trial, the trial court convicted Herring of the above-

described charges.   Thereafter, the trial court sentenced Herring to six to

twenty-three months in county jail for her conviction of aggravated assault.

For her convictions of PIC, simple assault and REAP, the trial court imposed

concurrent probation terms for a maximum period of three years. The trial

court imposed no further sentence for Herring’s conviction of public

drunkenness. Herring subsequently filed the instant timely appeal, followed




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by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Matters

Complained of on Appeal.

      Herring now presents the following claims for our review:

      1. Was not the evidence insufficient to prove aggravated
         assault[,] as there was no intent to cause bodily injury?

      2. Was not the evidence insufficient to prove [PIC,] as coffee
         does not meet the definition of an instrument of crime?

      3. Was not the evidence insufficient to prove [REAP,] as there
         was no actual risk of serious bodily injury or death?

Brief for Appellant at 2.

      Herring first challenges the sufficiency of the evidence underlying her

conviction of aggravated assault.     Id. at 7.   Herring asserts that Officer

Tamamato suffered no bodily injury, received no treatment, and missed no

time at work.    Id.   Herring argues that “[t]his is not ‘bodily injury’ within

[the] meaning of [the] aggravated assault of police officer statute.” Id. at

7-8. Further, Herring argues, the evidence fails to establish that it was her

“conscious object” to cause bodily harm to Officer Tamamato.          Id. at 9.

According to Herring, “[s]he was drunk and acted in a puerile fit of pique

upon being thwarted in the exercise of ‘her rights.’” Id. at 9-10.

      As this Court has opined,

      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.


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        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.

Commonwealth v. Stays, 70 A.3d 1256, 1266 (Pa. Super. 2013) (internal

quotation marks and citations omitted).          The facts and circumstances

established by the Commonwealth need not be absolutely incompatible with

the defendant’s innocence, but the question of any doubt is for 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.

Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003). “We may

not substitute our own judgment for the [fact finder’s], as it is the fact

finder’s province to weigh the evidence, determine the credibility of

witnesses, and believe all, part, or none of the evidence submitted.”

Commonwealth v. Cooper, 941 A.2d 655, 662 (Pa. 2007).

        A person is guilty of aggravated assault of a police officer if she

“attempts to cause or intentionally or knowingly causes bodily injury to any

of the officers, agents, employees or other persons enumerated in

subsection (c), in the performance of duty.”2       18 Pa.C.S.A. § 2702(a)(3).

The Crimes Code defines “bodily injury” as “[i]mpairment of physical

condition or substantial pain.”       18 Pa.C.S.A. § 2301.       A person acts

intentionally with respect to a material element of an offense if “it is his


2
    A police officer is one of the persons enumerated in subsection (c).


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conscious object to engage in conduct of that nature or to cause such a

result.” 18 Pa.C.S.A. § 302(b)(1)(i).

      “[I]n a prosecution for aggravated assault on a police officer[,] the

Commonwealth has no obligation to establish that the officer actually

suffered a bodily injury; rather, the Commonwealth must establish only an

attempt to inflict bodily injury, and this intent may be shown by

circumstances which reasonably suggest that a defendant intended to cause

injury.” Commonwealth v. Rahman, 75 A.3d 497, 501 (Pa. Super. 2013)

(internal quotation marks and citation omitted). An “attempt” exists when

“the accused intentionally acts in a manner which constitutes a substantial

or significant step toward perpetrating ... bodily injury upon another.”

Commonwealth v. Stevenson, 894 A.2d 759, 774 (Pa. Super. 2006)

(citation omitted).

      At trial, Officer Tamamato testified that on March, 16, 2013, at 11:30

p.m., in the 5600 block of North Broad Street in Philadelphia, he and his

partner stopped a pedestrian for urinating on the street. N.T., 12/11/13, at

17.   Officer Tamamato stood behind his partner, while they had the

pedestrian up against a wall. Id. According to Officer Tamamato, Herring

approached the two of them, stopping to ask if the beer store was still open.

Id. at 19. Officer Tamamato described what next transpired as follows:

      Q. [The Commonwealth]: … [W]hat did you say in response to
      her asking if the beer store was open?




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     A. [Officer Tamamato]: I stated I’m not sure what time the beer
     store closes. I said you can go across the street and see if
     they’re still open. I can’t really interact. I’m in the middle of
     covering my partner here.

     Q. And what did she do?

     A. At that time[,] she asked me again do you know what time
     the beer store closes, I don’t know. I said I really can’t interact
     because I’m trying to keep an eye on my partner to see if he’s
     okay. At that time I said if you’re going to walk, can you please
     walk in the direction of where the beer store is. Don’t walk
     between me and my partner.

     Q. Was she no longer stationary in speaking to you?

     A. At first she was[,] then after I told her [if] she wouldn’t mind
     going the other way or going behind but then she just stated she
     wanted to walk in between me and my partner and at that time I
     said no, you can’t.

     …

     Q. And did she comply and walk behind you or walk in another
     direction?

     A. She did not.

     Q. What did she do?

     A. She attempted to walk in between me and my partner again.
     I had my hand out and I said you can’t walk through. At that
     time she made a comment stating I can do whatever I want[,]
     and then that’s when she threw the two cups of coffee at my
     face.

     …

     Q. And where was she standing at the time that she threw the
     coffee?

     A. Within about a foot.




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     Q. And was she still to your right or was she now in front of
     you?

     A. She was still to my right.

     Q. And what did she say prior to throwing the coffee?

     A. I believe she said I can walk anywhere I want, bitch.

Id. at 19-22.

     In addition, Officer Tamamato testified that the coffee hit his right

cheek and right eye. Id. at 22. According to Officer Tamamato, the coffee

“was hot enough for me to notice.” Id. Further, Officer Tamamato stated

that the coffee “hurt” when it first touched his skin. Id. Officer Tamamato

identified a photograph of himself, taken after the incident, which depicted

redness around his eye and earlobe area. Id. at 23-24. After the incident,

Officer Tamamato testified, a nurse at Albert Einstein Medical Center “gave

me some flush for my eye.”      Id. at 27.   Officer Tamamato received no

further treatment for his cheek area. Id. at 28.

     Our review discloses that the evidence that Herring threw hot coffee

towards the face and eyes of Officer Tamamato was sufficient to establish

that Herring “intentionally act[ed] in a manner which constitute[d] a

substantial or significant step toward perpetrating ... bodily injury upon

another.” Stevenson, 894 A.2d at 774. Further, Herring’s act of throwing

the hot coffee towards the eyes of Officer Tamamato was sufficient to

establish that it was her “conscious object to engage in conduct of that

nature or to cause such a result.” 18 Pa.C.S.A. § 302(b)(1)(i). Because the


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evidence is sufficient to sustain Herring’s conviction of aggravated assault,

we cannot grant her relief on this claim.

      Herring next claims that the evidence is insufficient to sustain her

conviction of PIC. Brief for Appellant at 10. Specifically, Herring argues that

the coffee at issue does not meet the definition of an “instrument of crime.”

Id. According to Herring, the coffee “was not specially made or adapted for

criminal use in any way.     It was not possessed under circumstances not

manifestly appropriate for lawful uses it may have.” Id. at 11. Upon careful

review of the record, we agree.

      A person commits the crime of PIC, a misdemeanor of the first degree,

“if [s]he possesses any instrument of crime with intent to employ it

criminally.” 18 Pa.C.S.A. § 907(a). Section 907 defines an “instrument of

crime” as any of the following:

      (1) Anything specially made or specially adapted for criminal
      use.

      (2) Anything used for criminal purposes and possessed by the
      actor under circumstances not manifestly appropriate for lawful
      uses it may have.

18 Pa.C.S.A. § 907(d).

      Our review of the record discloses that the Commonwealth presented

no evidence that the coffee, as used by Herring, was “specially made or

specially adapted for criminal use.” See id. While Herring ultimately may

have used the coffee cup to facilitate a crime, the record discloses no

evidence that she possessed the coffee “under circumstances not manifestly


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appropriate     for   lawful    uses   it   may   have.”      See   id.;   see   also

Commonwealth v. Williams, 808 A.2d 213, 215 (Pa. Super. 2002)

(holding that the mere use of an item to facilitate a crime does not

transform the item into an instrument of crime for purposes of the PIC

statute); cf. Commonwealth v. Vida, 715 A.2d 1180, 1183-84 (Pa. Super.

1998) (concluding that a paint stick, used by the defendant to paint graffiti

on a lamp pole, was an “instrument of crime”).             As such, the evidence is

insufficient to sustain Herring’s conviction of PIC.        Accordingly, we vacate

Herring’s judgment of sentence for PIC.

      Finally, Herring challenges the sufficiency of the evidence underlying

her conviction of REAP.          Brief for Appellant at 13.    Specifically, Herring

claims that there was no actual risk of serious bodily injury or death.           Id.

Herring argues that “[t]he act of throwing coffee, evidently not scalding hot

coffee since the lack of injury is inconsistent with the coffee being scalding

hot, does not present a substantial risk of death or serious, permanent

disfigurement, or protracted loss or impairment of any bodily member or

organ.”   Id.

      A person commits the crime of REAP “if [s]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.    “[I]n order to make out a

prima facie case for REAP, the Commonwealth need only establish that the

defendant’s conduct placed or may have placed another in danger of serious



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bodily injury or death.”   Commonwealth v. Black, 108 A.3d 70, 78 (Pa.

Super. 2015) (citation and emphasis omitted).

      [REAP] is a crime directed against reckless conduct entailing a
      serious risk to life or limb out of proportion to any utility the
      conduct might have.”       Commonwealth v. Rivera, 349 Pa.
      Super. 303, 503 A.2d 11 (Pa. Super. 1985) (en banc). … A
      person acts in a reckless manner when [s]he consciously
      disregards a substantial and unjustifiable risk. See [id.]
      § 302(b)(3).

      In contrast, a person acts in merely a negligent manner when he
      should have known that his actions created a substantial and
      unjustifiable risk. See [id.] § 302(b)(4). “Recklessness is
      distinguishable from negligence on the basis that recklessness
      requires conscious action or inaction which creates a substantial
      risk of harm to others, whereas negligence suggests unconscious
      inadvertence.” Tayar v. Camelback Ski Corp., Inc., 616 Pa.
      385, 402, 47 A.3d 1190, 1200 (2012).

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014). “It is

not [the defendant herself] that must be [shown] to have the present ability

to cause death or serious bodily injury to another, it is [the defendant’s]

actions.”   Id. at 721.    Our law defines “serious bodily injury” 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.

      To sustain a conviction under section 2705, the Commonwealth
      must prove that the defendant had an actual present ability to
      inflict harm and not merely the apparent ability to do so. In re
      Maloney, 431 Pa. Super. 321, 636 A.2d 671, 674 (Pa.Super.
      1994). Danger, not merely the apprehension of danger, must be
      created. Id. The mens rea for recklessly endangering another
      person is “a conscious disregard of a known risk of death or
      great bodily harm to another person.” Commonwealth v.



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       Peer, 454 Pa. Super. 109, 684 A.2d 1077, 1080 (Pa.Super.
       1996)….

Commonwealth v. Martuscelli, 54 A.3d 940, 949 (Pa. Super. 2012).

       This Court has opined that “[b]randishing a loaded firearm during the

commission of a crime provides a sufficient basis on which a fact-finder may

conclude that a defendant proceeded with conscious disregard for the safety

of other, and that he had the present ability to inflict great bodily harm or

death.”    Commonwealth v. Hopkins, 747 A.2d 910, 916 (Pa. Super.

2000).    Similarly, allowing a horse to roam freely on a highway has been

deemed sufficient to sustain a conviction for REAP. Vogelsong, 90 A.3d at

721.

       Keeping in mind our standard of review, we conclude that the evidence

is sufficient to sustain Herring’s conviction of REAP.   The evidence reflects

that Herring threw hot coffee into Officer Tamamato’s face, and walked

between Officer Tamamato and his partner during an investigation where the

officers had a suspect against a wall. N.T., 12/11/13, at 21. We conclude

that this evidence is sufficient to establish that Herring consciously

disregarded a known risk of death or great bodily harm to Officer Tamamato

and his partner by interfering with the officers. As the trial court observed in

its Opinion, “[Herring’s] actions put the police officers and public at risk.”

Trial Court Opinion, 2/4/15, at 6.     Accordingly, we cannot grant Herring

relief on this claim.




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        Judgment of sentence affirmed in part and vacated in part consistent

with this Memorandum.3 Superior Court jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2015




3
    Our resolution does not affect the trial court’s sentencing scheme.


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