J-S04030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

RONALD LEE BERTRAND

                            Appellant                   No. 504 EDA 2016


           Appeal from the Judgment of Sentence December 8, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0003033-2014


BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                   FILED MAY 23, 2017

        Ronald Lee Bertrand appeals from the judgment of sentence imposed

on December 8, 2014, in the Delaware County Court of Common Pleas.

Bertrand was sentenced to an aggregate term of 42 to 84 months’

imprisonment, followed by four years’ probation, after his jury conviction of

terroristic threats, possessing an instrument of crime (“PIC”), recklessly

endangering another person (“REAP”), simple assault, and defiant trespass

(actual communication).1         Bertrand’s sole issue on appeal challenges the

sufficiency of the evidence supporting his conviction of REAP.         For the

reasons below, we affirm.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. §§ 2706(a)(1), 907(a), 2705, 2701(a)(3), and 3503(b)(1)(i),
respectively.
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     The facts underlying Bertrand’s arrest and conviction are aptly

summarized by the trial court as follows:

           On April 13, 2014, at approximately 2:20 p.m., the victim
     in this case, Michael Link, a retired Aston Township Police
     Officer, was doing some gardening on the side yard of his home
     located [on] Convent Road, Aston, Delaware County,
     Pennsylvania, along with his wife. They were just getting ready
     for a late afternoon lunch and the victim’s wife went inside. At
     or about that time, a red Chevy pick-up truck drove up the
     street and parked on the other side of the street. [Bertrand] got
     out of the vehicle and then asked a man by the name of Ronald
     Pierce, who was doing work at his mother’s home [on] Convent
     Road, which is across the street from the victim’s home; “… does
     a Michael Fink live around here?” The witness, Mr. Pierce knows
     that Michael Link lives across the street and advised [Bertrand]
     of that fact. [Bertrand] then began walking onto the victim’s
     property carrying a double-headed hand-held ax in his hand.
     The victim immediately recognized [Bertrand] as Ronnie
     Bertrand in that he had known him for approximately 30 years.
     As [Bertrand] was coming toward the victim with the double-
     headed ax, the victim yelled to [Bertrand] “get off my property;
     you’re not welcome here; leave.”

           As [Bertrand] approached the victim, he was swinging the
     double-headed ax from front to back. As [Bertrand] continued
     to approach the victim, the victim continued to yell at [Bertrand]
     to leave and attempted to retreat to his basement door which is
     two steps below grade. As [Bertrand] continued to move toward
     the victim, at one point he got within one foot of him as the
     victim retreated to his basement. The victim was able to grab
     the handle to the basement door, open it, run inside and slam
     the door shut locking it behind him. The victim testified that he
     was in fear for his life and that of his family and that the event
     “was deathly frightening.”      On at least four (4) separate
     occasions, as he pursued the victim, [Bertrand] stated “do you
     remember when you tripped me up in court?” This apparently
     referred to unrelated charges brought against [Bertrand] by
     another Aston police officer sometime in the 1990’s that resulted
     in a plea of guilty to summary offense disorderly conduct by
     [Bertrand].



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J-S04030-17



Trial Court Opinion, 5/31/2016, at 1-2 (record citations omitted; emphasis in

original).

       Bertrand was charged with the aforementioned crimes, as well as one

count of retaliation against witness, victim or party. See 18 Pa.C.S. § 4953.

The case proceeded to a jury trial, and, on November 6, 2014, the jury

found Bertrand guilty of all charges, with the exception of the retaliation

offense.     On December 8, 2014, the trial court imposed the following

sentence:     (1) a term of 24 to 48 months’ imprisonment for terroristic

threats; (2) a consecutive term of 18 to 36 months’ imprisonment and two

years’ probation for PIC; (3) a consecutive term of one year probation for

REAP; and a consecutive term of one year probation for trespass.2        That

same day, the trial court granted counsel permission to withdraw.

       On December 18, 2014, Bertrand filed a pro se post-sentence motion,

challenging the sufficiency of the evidence supporting his convictions of

terroristic threats and REAP, and the discretionary aspects of his sentence.

He then filed a second, pro se motion for reconsideration of sentence on

December 22, 2014. The trial court denied Bertrand’s motion by order dated

January 9, 2015. Bertrand did not receive notice of the entry of the order.




____________________________________________


2
  The court found the crime of simple assault merged with REAP for
sentencing purposes.




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        Thereafter, on April 2, 2015, Bertrand sent a letter to the trial court

administrator inquiring as to the status of his appeal.             The trial court

considered the filing to be a first petition for post conviction collateral relief, 3

and promptly appointed counsel, directing him to file an amended petition

within 60 days. See Order, 4/8/2015. After requesting and receiving two

extensions of time, counsel filed an amended petition on October 22, 2015,

requesting reinstatement of Bertrand’s direct appeal rights. On January 11,

2016, the PCRA court entered an order finding Bertrand was never served

with a copy of the January 8, 2015, order denying his post-sentence motion,

and consequently, the time for filing a direct appeal had not expired. See

Order, 1/11/2016.       Accordingly, the order directed that the 30-day appeal

period commence from the filing of the order, and that Bertrand’s PCRA

petition be dismissed without prejudice “to refile a PCRA Petition at the

conclusion of direct appeal.” Id.        This timely appeal followed.4

        The only issue Bertrand raises on appeal is a challenge to the

sufficiency of the evidence supporting his conviction of REAP.           Specifically,

he argues the evidence failed to establish that the victim was “placed in

____________________________________________


3
    See Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
4
  The trial court subsequently granted PCRA counsel permission to withdraw
and appointed present counsel to assist Bertrand on direct appeal. Further,
we note Bertrand complied with the trial court’s directive to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).




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danger of death or serious bodily injury.” Bertrand’s Brief at 12. He claims

“[a]lthough [he] did enter onto the victim’s property unannounced with an

ax in hand, he made no discernable effort to strike at the victim with the

implement or take any other explicit action that could be construed as

swinging the ax to, in fact, try to cause injury to [the victim].”          Id.

Therefore, he maintains, “the victim was never placed in actual danger of

death or serious bodily injury.” Id. at 20.

      Our review of a sufficiency challenge is well-settled:

      The standard of review for a challenge to the sufficiency of the
      evidence is to determine whether, when viewed in a light most
      favorable to the verdict winner, the evidence at trial and all
      reasonable inferences therefrom is sufficient for the trier of fact
      to find that each element of the crimes charged is established
      beyond a reasonable doubt. The Commonwealth may sustain its
      burden of proving every element beyond a reasonable doubt by
      means of wholly circumstantial evidence.

      The facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. Any doubt
      raised as to the accused's guilt is to be resolved by the fact-
      finder. As an appellate court, we do not assess credibility nor do
      we assign weight to any of the testimony of record. Therefore,
      we will not disturb the verdict “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.”

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

(internal citations omitted), appeal denied, 102 A.3d 985 (Pa. 2014).

      A defendant may be convicted of 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. In making this determination, we

must bear in mind the following:

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     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.”        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.
     Danger, not merely the apprehension of danger, must be
     created. 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. Hopkins, 747 A.2d 910, 915–916 (Pa. Super. 2000)

(emphasis supplied and internal citations omitted).

     Here, the trial court succinctly addressed Bertrand’s claim as follows:

     [Bertrand] had an actual present ability to inflict harm.
     [Bertrand] was walking “very briskly” toward the victim, Michael
     Link. [Bertrand] was swinging a shiny, double-headed ax from
     front to back. At trial, Link testified that [Bertrand] threatened
     him verbally. On at least four (4) separate occasions, as he
     pursued the victim, [Bertrand] stated “do you remember when
     you tripped me up in court?” [Bertrand] was about a foot from
     the victim and continued to move the ax back and forth. The
     victim testified:

        Q. How close was Mr. Bertrand to you as you’re back
        pedaling down those steps?

        A. We were real close. I mean, we’re like a foot apart, if
        that …

        A. And he’s saying get in the basement; get in the
        basement, okay, as I’m back pedaling down these stairs.
        And there’s an overhang on the sides of my step, okay,
        and I heard the clink of the ax. And -- …

        Q. And that was what, the ax what?

        A. Hitting the side of the cement as it was being swung.
        And at the same time – and I’m – I’m saying to him Ron,
        you’re really starting to scare me; you need to leave okay?




                                    -6-
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             [Bertrand] menaced the victim by wielding an ax less than
      a foot from the victim’s body thus establishing an actual present
      ability to inflict injury. There was ample evidence to sustain
      [Bertrand’s] conviction for Reckless Endangerment.

Trial Court Opinion, 5/31/2016, at 9.

      Our review of the record reveals ample support for the trial court’s

ruling on the sufficiency claim.      The victim’s testimony demonstrates that

Bertrand had the “actual present ability” to inflict serious bodily harm upon

the victim.   Hopkins, supra, 747 A.2d at 915.         See Commonwealth v.

Lawton, 414 A.2d 658, 662 (Pa. Super. 1979) (finding evidence sufficient to

support   REAP   conviction   when      defendant   was   “swinging     [his   fists]

indiscriminately into a crowd of students” and explaining “the mere fact that

the victim only sustained minor injuries and did not sustain ‘serious bodily

injury’ does not ipso facto establish that appellant's actions did not place

others in danger of such injury.”).

      Bertrand suggests the evidence was insufficient to support his REAP

conviction because the victim was never in any real danger. He emphasizes

“the ax was never raised to strike a blow[;]” rather, he simply approached

the victim “with the ax in his hands.”        Bertrand’s Brief at 19.    However,

Bertrand mischaracterizes the testimony.            The victim explained that

Bertrand approached him in a menacing manner while swinging a double-

headed ax by his side.     These actions certainly created a situation which

placed the victim in danger of serious bodily injury. See 18 Pa.C.S. § 2705.

Moreover, Bertrand’s reliance on cases in which the defendant possessed an



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unloaded firearm is misplaced.          See Bertrand’s Brief at 12.   An unloaded

firearm, unlike an ax, is not inherently dangerous.5

       Accordingly, because we conclude the evidence was sufficient to

sustain Bertrand’s conviction of REAP, we affirm the judgment of sentence.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




____________________________________________


5
  We also reject Bertrand’s reliance on Commonwealth v. Cavanaugh, 420
A.2d 674 (Pa. Super. 1980), and Commonwealth v. Parks, 421 A.2d 1135
(Pa. Super. 1980), for the proposition that the ax “did not become
dangerous to the victim until it was utilized in a manner that created an
environment of real harm[.]” Bertrand’s Brief at 20. See Cavanaugh,
supra, 420 A.2d at 675 (defendant’s action in striking victim on the head
with a tire iron sufficient to support REAP conviction); Parks, supra, 421
A.2d at 1138 (defendant’s action in beating victim over the head with
victim’s own cane sufficient to sustain REAP conviction). Although in both of
those cases the defendant used the instrumentality to strike the victim, the
appellate court did not imply the evidence would have been insufficient if the
defendants had merely threatened the victims or approached them in a
menacing manner.



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