J-S55004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DANIEL DONNELLY,

                        Appellant                  No. 1130 EDA 2013

         Appeal from the Judgment of Sentence November 1, 2012
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0003874-2012

BEFORE: BOWES, SHOGAN, and OTT, JJ.

MEMORANDUM BY BOWES, J.:                      FILED SEPTEMBER 16, 2014

     Daniel Donnelly appeals from the judgment of sentence of eleven and

one-half to twenty-three months imprisonment followed by one year of

probation that the trial court imposed after it convicted Appellant of theft,

receiving stolen property, terroristic threats, and recklessly endangering



was insufficient to support his conviction for receiving stolen property, but

agree that it was insufficient to sustain the offense of REAP. We therefore

affirm in part and reverse in part and remand for re-sentencing.

                                                                   -year-old

victim, N.S. At approximately 8:30 p.m. on March 8, 2012, N.S. left a café

on the 3700 block of Midvale Avenue, Philadelphia.          He encountered

Appellant, Jimmy Gibbs, Eddie Gibbs, and Shawn Breck.       The victim knew
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the four individuals, all of whom began to follow N.S. as he walked down

Midvale Avenue. Eddie Gibbs grabbed the victim, and Appellant, who was

twenty-



surrounded the victim. After Jimmy Gibbs punched N.S., he surrendered his

cell phone and Ipod. As N.S., whose glasses broke as a result of the punch,

began to walk away from the assault, Appellant approached him and said

that if the victim mentioned his name, he would kill him. Id. at 25. When

N.S. returned home, his mother telephoned police.

     In this appeal from the judgment of sentence, Appellant raises two

contentions:

           1. Was the evidence insufficient to support the finding that
     Appellant received stolen property or theft where the evidence
     presented at trial established that Appellant never intentionally
     took, received, retained, or disposed of the property in question?

           2. Was the evidence insufficient to support the finding that
     Appellant recklessly endangered another person where no
     evidence was presented at trial to establish that Appellant
     engaged in conduct that may have placed another individual in
     danger of death or serious bodily injury?



     We first outline our well-established standard of review of sufficiency

claims:

            The standard we apply when 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

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     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. Furthermore, when reviewing a sufficiency
     claim, our Court is required to give the prosecution the benefit of
     all reasonable inferences to be drawn from the evidence.

Commonwealth v. Slocum, 86 A.3d 272, 275 (Pa.Super. 2014) (citation

omitted).

     Appellant first challenges his conviction for receiving stolen property.

            stolen property is established by proving that the accused



knowing that it has been stolen, or believing that it has probably been

stolen, unless the property is received, retained, or disposed of with intent

                                                        Commonwealth v.

Newton, 994 A.2d 1127 (Pa.Super. 2010).         In assailing his conviction,

Appellant notes that the victim never testified that Appellant took or was in

possession of the property stolen from the young man.          Indeed, N.S.

indicated that Jimmy Gibbs and Shawn Breck stole his property.




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      The trial court stated that it convicted Appellant of the receiving-

stolen-                                                           I]t is well-

established that a defendant, who was not a principal actor in committing

the crime, may nevertheless be liable for the crime if he was an accomplice

                           Commonwealth v. Lynn, 83 A.3d 434, 454

(Pa.Super. 2013) (citation omitted). An accomplice is defined, in pertinent




                                                                the crime. 18

Pa.C.S. § 306(c)(1)(i-ii). Thus, two elements must be present in order for a



that the defendant intended to aid or promote the underlying offense.

Second, there must be evidence that the defendant actively participated in

                                                                        Lynn,

supra

evidence that he knew about the crime or was present

Id. at 454-55.

      In this case, the evidence was sufficient to establish that Appellant was

an accomplice to the crime of receiving stolen property. He was more than

merely present at the scene of the crime. Rather, he joined in the actions of

the three other assailants and solicited the crime by telling his three cohorts

to take anything that they could from the victim. He also aided the culprits


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who actually took the cell phone and Ipod by surrounding the victim.     His

words established that he intended for the two principal actors to take items




                                                      t which places or may




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

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

                             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. Cordoba, 902 A.2d 1280,

1288 (Pa.Super. 2006) (emphasis added and citation omitted).

     As we noted in Commonwealth v. Klein, 795 A.2d 424, 427-28

(Pa.Super. 2002) (citation omitted), to establish that a defendant committed

the crime of REAP

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

to

See also Commonwealth v. Fabian, 60 A.3d 146 (Pa.Super. 2013).

     Appellant relies upon Commonwealth v. Alexander, 383 A.2d 887

(Pa. 1978). Although Appellant represents that Alexander was convicted of

REAP when that defendant actually was convicted of aggravated assault, we


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do find that decision inst

sidewalk when Alexander punched him in the face.             The victim fell to the

ground but did not become unconscious, and the only injury that he

sustained was a broken nose. At a nonjury trial, Alexander was convicted of

aggravated assault under 18 Pa.C.S. § 2702(a)(1).            Someone is guilty of



causes such injury intentionally, knowingly or recklessly under circumstances

manifesting extreme ind

§ 2702(a)(1).      On    appeal,    our   Supreme    Court   concluded   that   the

Commonwealth failed to prove the offense in question.

      The Commonwealth admitted that Alexander did not cause the victim

serious bodily injury.    It maintained that, when the defendant struck the

victim on the nose with a closed first, the defendant displayed an intent to

inflict such injury. The Alexander Court held that a single punch delivered

to the face, without more, cannot support a finding that the actor intended

to inflict serious bodily injury.   It continued that, where a single punch is

involved, the record must contain other evidence that the defendant had an

actual intent to inflict such injury.      It indicated that such intent could be

supported by other circumstances, including, but not limited to, proof that

the defendant was disproportionately larger or stronger than the victim, that

the attack was not escalated solely due to restraint applied to the defendant,




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that the defendant had a weapon, or that the defendant made comments

during the incident that evidenced an intent to inflict serious bodily injury.

      The defendant in Alexander was held not to possess specific intent to

inflict serious bodily injury by punching the victim once.     Likewise, herein,

the evidence does not make out a case that Appellant exposed the victim to

a known risk of serious bodily injury by telling his three companions to take

his property. No one was armed and Appellant did not encourage or suggest

that the victim be attacked.    While there was a danger of bodily injury to

N.S., there was not a known and actual risk of serious bodily injury inherent

in the situation.

      The result herein is supported by the decision in Commonwealth v.

Moody, 441 A.2d 371 (Pa.Super. 1982). Therein, Moody was convicted of



established that the defendant forced a twelve-year-old girl into the

basement of a building, where he fondled her. When Moody began to unzip

his pants, the victim kicked him in the groin. Moody began to flee and the

victim followed him. Moody struck the girl in an attempt to keep her in the

basement and then tried to lock the basement door. After the girl told him

not to lock the door, Moody ceased that action, and the victim left the

premises. Moody argued on appeal that there was insufficient evidence to



which included forcing the girl into the basement, striking her, and touching


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                                                     Id. at 374.

        In this case, four people surrounded the victim and one of them

punched him in the face. These actions involved substantially less danger

than those examined in Moody. Even though there were four accomplices

involved in the crime and the victim was a teenager, we find no proof that

Appellant exposed the victim to an actual and immediate danger of serious

bodily injury. He encouraged his cohorts to take items from the victim but

did not verbalize that he wanted the victim injured. One of his partners in



his glasses but did not cause bodily injury. Under all the circumstances, we

conclude that the evidence was insufficient to prove that Appellant

consciously disregarded an actual and known risk of death or great

bodily harm, which is the mens rea required to sustain a REAP offense. Cf.

Commonwealth v. Lawton, 414 A.2d 658 (Pa.Super. 1979) (defendant

indiscriminately swung wildly at crowd, punched two people, and continually

threated to kill people).1

____________________________________________
1
   We do observe that there is an apparent inconsistency in the case law
regarding the immediacy of the danger required to sustain a REAP
conviction. In Lawton, we indicated that § 2705 did not mandate that any
person actually be placed in danger but instead, also encompassed potential
risks. Nevertheless, Moody is factually indistinguishable from the case at
bar. Moreover, the more recent case law as indicated in the text above
mandates that the situation create actual rather than apparent risk of
danger. A potential risk of serious bodily injury appears to flow from a
(Footnote Continued Next Page)

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        Accordingly, we must reverse that conviction.   Since our reversal in

this respect affects the overall sentencing scheme of the trial court, which

imposed the one-year probationary tail on this offense, we will remand for

re-sentencing.



reversed. In all other respects, the convictions are affirmed. The judgment

of sentence is vacated and the matter is remanded for resentencing. Case

remanded. Jurisdiction relinquished.

        Judges Shogan and Ott Concur in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2014




                       _______________________
(Footnote Continued)
situation where four males, including one adult, surround a teenager to take
his belongings.


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