J-S77032-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    Appellee              :
                                          :
                      v.                  :
                                          :
MARIO RAMOS,                              :
                                          :
                    Appellant             :     No. 989 EDA 2014

           Appeal from the Judgment of Sentence Entered July 12, 2014
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-0012280-2011

BEFORE:       STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED FEBRUARY 05, 2015

      Mario Ramos (Appellant) appeals from the judgment of sentence

entered July 12, 2014, following his convictions for possessing an instrument

of crime, simple assault, and recklessly endangering another person (REAP).

We affirm.

      The trial court set forth the relevant factual history of this case as

follows.

             On October 8, 2011, at around 7:19 P.M. [Philadelphia City
      Police] Officer [Jerome] Cotton responded to the 2900 block of
      N. Howard St. in Philadelphia for a report of a man with a knife.
      Prior to police responding to the scene, [] Appellant, [] left his
      residence to purchase cigarettes. When he left his house, he
      heard the complaining witness, Angel Melendez yell in his
      direction that he was an undocumented illegal alien and “what
      are you doing here.” At that point [Appellant] and Melendez
      begin to have a physical altercation.




*Retired Senior Judge assigned to the Superior Court.
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              Upon arriving at [N. Howard Street], Officer Cotton
        observed [Appellant] with a large butcher knife, standing within
        arm’s reach of Melendez with the blade of the knife pointed at
        him. After the officer exited his vehicle, drew his weapon and
        ordered [Appellant] to drop the knife, Ramos fled with the knife
        into 2915 N. Howard St. Officer Cotton arrested [Appellant]
        inside that property and recovered a ten to twelve inch butcher
        knife with a black handle. Neither [Appellant nor] Melendez
        appeared to be injured. Additionally, Officer Cotton did not
        observe Melendez with a knife or a weapon.

Trial Court Opinion, 5/16/2014, at 2 (citations omitted).

        On May 14, 2012, following a bench trial, Appellant was found guilty of

the aforementioned offenses. On July 12, 2012, Appellant was sentenced to

three-and-a-half years of probation on the charge of possession of an

instrument of a crime.         Appellant received no further penalty on the

remaining charges.

        Appellant did not file a direct appeal. On July 2, 2013, Appellant filed

a petition pursuant to the Post Conviction Relief Act (PCRA) 1 seeking

reinstatement of his post-sentence and appellate rights. The PCRA court

granted Appellant’s petition on March 10, 2014.          On March 18, 2014,

Appellant filed a notice of appeal. Appellant complied with the directive to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).




1
    42 Pa.C.S. §§ 9541-9546.



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      On appeal, Appellant challenges the sufficiency of the evidence

presented at trial to convict him of either REAP or simple assault. Appellant’s

Brief at 13-15.

      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 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 defendant’s guilt
      may be resolved by the fact-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. Knox, 50 A.3d 749, 754 (Pa. Super. 2012) (quoting

Commonwealth v. Brown, 23 A.3d 544, 559–60 (Pa. Super. 2011) (en

banc)).

      With regard to REAP, the Crimes Code provides that “[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. § 2705. With regard to simple assault, the

statute provides, in relevant part, that “[a] person is guilty of assault if he:




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(3) attempts by physical menace to put another in fear of imminent serious

bodily injury….” 18 Pa.C.S. § 2701(a)(3). “Serious bodily injury” is “[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 contends that Officer Cotton’s testimony was insufficient to

sustain his convictions because the officer merely observed Appellant

standing a few feet from Melendez, with a knife raised above his own head.

Appellant’s Brief at 14-15.   He emphasizes that Officer Cotton did not see

him use the knife in any way, and that Melendez did not suffer injury, nor

did he testify against Appellant. Id.

      We begin by noting that the Commonwealth did not need to prove that

Melendez was actually injured in order to sustain its burden with respect to

either charge.

      We have held that a person is guilty of [REAP] when it is shown
      that the person (1) possessed “a mens rea recklessness,” (2)
      committed a wrongful deed or guilty act (“actus reus”), and (3)
      created by such wrongful deed the danger of death or serious
      bodily injury to another person. The element of “mens rea
      recklessness” has been defined as “a conscious disregard of a
      known risk of death or great bodily harm to another person.” …
      We have further held that Section 2705 “was directed against
      reckless conduct entailing a serious risk to life or limb out of
      proportion to any utility the conduct might have” had. Finally,
      the perpetrator must create an actual condition of danger, not
      merely an apprehension of danger.




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Commonwealth v. Emler, 903 A.2d 1273, 1278 (Pa. Super. 2006)

(citations and bolding omitted).

      Moreover, “the elements which must be proven [in order to sustain a

conviction for simple assault by physical menace] are intentionally placing

another in fear of imminent serious bodily injury through the use of

menacing or frightening activity. Intent can be proven by circumstantial

evidence and may be inferred from the defendant’s conduct under the

attendant circumstances.” Commonwealth v. Reynolds, 835 A.2d 720,

726 (Pa. Super. 2003) (citations omitted).

      Mindful of the above, and viewing the evidence in the light most

favorable to the Commonwealth, we hold that the evidence presented here

was sufficient to allow the factfinder to conclude that Appellant intended to

place Melendez in fear of serious bodily injury by threatening him with a

large knife. Moreover, we hold that the evidence was sufficient to prove that

Appellant acted recklessly with a conscious disregard of a known risk of

death or great bodily harm to Melendez. See Commonwealth v. Little,

572, 614 A.2d 1146, 1153 (Pa. Super. 1992) (reaffirming prior holdings of

this Court that a person may indeed commit simple assault by physical

menace without verbally threatening the victim or actually pointing a

weapon or holding the weapon in a striking position).2


2
  Additionally, Appellant argues that the trial court erred in disregarding his
claim of self-defense presented at trial. Appellant’s Brief at 15. This claim


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     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/5/2015




presents a challenge to the weight of the evidence. Commonwealth v.
Rivera, 983 A.2d 1211 (Pa. Super. 2009). Because Appellant failed to raise
this claim before the trial court, we find it waived. Pa.R.Crim.P 607.


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