J-A09028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 KIRK JACKSON                           :   No. 444 EDA 2018

                  Appeal from the Order January 8, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): MC-51-CR-0029287-2017,
                        MC-51-CR-0029288-2017


BEFORE:   KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.:                           FILED APRIL 30, 2019

     The Commonwealth appeals from the order denying its motion to refile

aggravated assault and recklessly endangering another person (REAP)

charges against Kirk Jackson (Appellee).     Upon review, we reverse and

remand for further proceedings.

     Appellee was charged at two separate criminal dockets as a result of an

incident that occurred on September 1, 2017.      The criminal complaint at

docket number 29287-2017 states:

     At or near 3647 Germantown Ave[.] [Appellee] threatened or
     intentionally put another in fear of serious injury by approaching
     [Paul Riley] and producing a firearm, and pointing it at [Riley,]
     racking the gun[,] and pulling the trigger multiple times[.]

Docket Number 29287-2017 Criminal Complaint, 10/2/17, at 1. The criminal

complaint at docket number 29288-2017 reads:



____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A09028-19


     At or near 3647 Germantown Ave[.] the [Appellee] threatened or
     intentionally put another in fear of serious injury by approaching
     [Curtis Gardner] and producing a firearm, and pointing it at
     [Gardner,] racking the gun[,] and pulling the trigger multiple
     times[.]

Docket Number 29288-2017 Criminal Complaint, 10/2/17, at 1.

     The affidavit of probable cause provides:

            On 9-1-17 at 10[:]51pm, in the city and county of
     Philadelphia, Pa, [Paul Riley] was working at the Clock Bar at 3647
     Germantown Avenue when [Appellee] . . . attempted to gain entry
     into the club[,] however was not allowed to be inside due to a
     previous incident where he assaulted a female patron[.] [Riley]
     stated to him that he couldn’t come inside and [Appellee] became
     enraged and pulled a small handgun from his waistband and
     aimed the weapon at [Riley], pulling the trigger twice but no round
     fired[.] [Riley] grabbed [Appellee] and both males began fighting
     until they fell back on the ground. While on the ground, [Appellee]
     who still [had] the gun in his hands, pointed the weapon again at
     [Riley], pulling the trigger 2 more times but again, no rounds
     discharged[.] [Riley] again fought of[f Appellee] until some of the
     patrons pulled [Riley] away from [Appellee]. [Riley] fled into the
     front door of the Clock Bar and was able to see [Appellee] walk
     off northbound on Germantown Avenue towards Erie Avenue and
     stop in front of the Eagle Bar which is located on the corner[.]
     [Curtis Gardner], who was working as uniform security at the
     Eagle Bar, was approached by the manager from Clock Bar and
     relayed to him that [Appellee], who at the time is standing by the
     curb, had pointed a small handgun at [Riley,] who was working
     [s]ecurity as well[.] [Gardner], along with several patrons,
     confronted [Appellee] about the incident at the Clock Bar as he is
     standing by the curb line on Erie Avenue east of Germantown
     Avenue[.] A[n] argument ensued and [Appellee] pull[ed] out a
     handgun and starts aiming the weapon at [Gardner] and several
     other patrons who were standing outside of the [b]ar[.] [Gardner]
     took cover behind a parked car and observed through the window
     of the car [Appellee] aiming the weapon in his hands at several
     people who were waiting on the route 23 bus stop and them
     fleeing on foot as a result. [Appellee] took off running towards
     Broad Street and [was] last observed in the area walking
     northbound.



                                    -2-
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               [A police officer] was working solo in full uniform . . . in a
        marked vehicle when he responded to a radio call for a person
        with a gun at the Clock [B]ar located at Broad and Erie St. While
        en route to the address he was flagged down by a male, wearing
        dark clothing and carrying a black pack, who stated that he was
        assaulted outside of the Clock [B]ar by another male[.] The male,
        later [identified] as [Appellee] stated that he was carrying a
        weapon and that he had a permit to carry[.] . . . [An additional
        police officer] arrived on location at the Clock [B]ar and secured
        [Riley,] who along with another [s]ecurity guard from the Eagle
        Bar, [Gardner], who stated that [Appellee] had a small handgun
        in his hands and had aimed it at the both of them on the
        highway[.] [Riley] and [Gardner] were brought to [Appellee’s
        location where] they positively [identified] him as the male who
        pointed the gun at them and pulled the trigger several times[.]
        Recovered from [Appellee] was a black Jimenez arms .380, serial
        #160505, loaded with 4 rounds in the magazine and no round in
        the chamber[.] . . . Also recovered was [] 1 magazine with 5 live
        [.]380 rounds and 36 loose rounds in a box inside of box which
        was inside of his book bag[.] [Appellee’s] permit to carry . . . and
        Act 235 card . . . [were] also confiscated as well for
        investigation[.]

Affidavit of Probable Cause, 10/3/17, at 2.

        As a result of his alleged actions on September 1, 2017, Appellee was

charged with two counts each of aggravated assault, REAP, possession of an

instrument of crime, and simple assault.1 At the preliminary hearing held on

October 18, 2017, the Commonwealth presented the testimony of Paul Riley

and Curtis Gardner.

        Mr. Riley, a 30-year employee of the Clock Bar located at 3657

Germantown Avenue in the city of Philadelphia, testified that he was working

as security at the bar on September 1, 2017. N.T., 10/18/17, at 4-5. Mr.

Riley testified that he was “on [his] guard” when he saw Appellee approaching
____________________________________________


1   18 Pa.C.S.A. §§ 2702(a), 2705, 907, and 2701.

                                           -3-
J-A09028-19



the entrance of the Clock Bar on September 1, 2017 because he had had three

prior incidents with him.     Id. at 6-7.    According to Mr. Riley, Appellee

approached the Clock Bar wearing a black hoodie with the “hoodie pulled tight”

and a black backpack. Id. at 6. Upon seeing Appellee, Mr. Riley stood up,

and Appellee reacted by pulling up his shirt. Id. at 6. While Appellee’s shirt

was up, Mr. Riley testified that he saw a “dirty silver handle of a gun in

[Appellee’s] pants . . . on his right side waist area.” Id. at 8.

      Mr. Riley further testified that Appellee “put his hands” on the firearm,

and at that point, Mr. Riley “[p]ut [his] hand overtop [sic] of his hand so that

he [could not] pull it up and I sw[u]ng at him.” N.T., 10/18/17, at 9, 14.

Appellee then proceeded to drop back “into the street about three, four feet,

pulls [the firearm] from his waistband, and aims it at” Mr. Riley, and “pulls

the trigger twice.” Id. at 9. Mr. Riley noted that while the firearm failed to

fire, it was aimed at his body when Appellee pulled the trigger. Id.

      Mr. Riley testified that Appellee then returned the firearm to his

waistband, at which point Mr. Riley and Appellee began to engage in a fist

fight. Id. The second time he knocked Appellee back, Mr. Riley testified that

Appellee “pulled the pistol out again, [trying] to fire at me again.”     N.T.,

10/18/17, at 9. However, Mr. Riley testified that the firearm again failed to

discharge, and at that point, an employee grabbed Mr. Riley by his collar in

an attempt to pull him inside the bar. Id. The last time he saw Appellee, Mr.

Riley saw him “walking towards Erie Avenue, which is towards Germantown .

. . going up the block.” Id. at 10.

                                      -4-
J-A09028-19



      Mr. Gardner, who testified that he was in the area of 3647 Germantown

Avenue in the City of Philadelphia on September 1, 2017 in his capacity as the

head of security for both Eagle Bar and the Clock Bar, was located at the

entrance of the Eagle Bar when he was approached by the manager of the

Clock Bar. Id. at 18. Mr. Gardner subsequently approached Appellee, who

was in front of the Clock Bar, leaning up against a car and talking on a cell

phone. Id. at 19. After approaching Appellee, and attempting to question

him about the prior altercation with Mr. Riley, Mr. Gardner testified that

Appellee pulled out a firearm and pointed it at him. N.T., 10/18/17, at 20.

      Mr. Gardner further testified that Appellee pulled the trigger twice, but

when the weapon failed to fire, Appellee “[t]hen proceeded to pull the slide

back so he could chamber another round.” Id. at 21. Mr. Gardner provided

the following testimony about what transpired:

      Then [Appellee] pointed it at the other individuals that were
      standing next to me. Then I fell on the ground and as I hit the
      deck, my head hit the pavement. I looked up. He is pointing it
      at the individuals waiting for the bus. There was a woman and
      child that were screaming. She almost knocked the baby over
      trying to get away from this individual pointing the weapon at the
      people at the bus stop. Then, at my restaurant, the Eagle Bar,
      people were standing outside waiting for their steaks because the
      line goes outside. They started scattering. A woman was almost
      hit by a bus because of this individual pointing his weapon. Then
      he pulled the slide back twice again on Germantown Avenue and
      pointed at us again . . . at the crowd that was in front of the Clock
      Bar. Then he proceeded to go to Broad and Erie. Then he made
      a left turn and went down Broad Street. I was tracking him on
      the other side of the street because I wanted to find out exactly
      where he was going. . . . I went back to check on [Mr. Riley] at
      the front door of the Clock Bar to find out exactly what happened.
      At that time an unmarked police vehicle pulled up.

                                      -5-
J-A09028-19



N.T., 10/18/17, at 21-22.

      After conversing with the police officer, Mr. Gardner testified that the

officer took him to Broad Street where he positively identified an individual

standing next to a police vehicle as Appellee. Id. at 22-23. After identifying

Appellee, Mr. Gardner witnessed the police remove a firearm from Appellee,

“[take] the clip out of the weapon, put handcuffs on him, and put him in the

back of a police vehicle.” Id. at 23.

      Other than the testimony of Mr. Riley and Mr. Gardner, the only other

evidence submitted at the preliminary hearing was a stipulation by both

parties that the weapon recovered from Appellee was a “black semi-automatic

Jimenez Arms pistol, 380 auto . . . [o]perability, FIU report, operability, yes.”

N.T., 10/18/17, at 30-31. At the conclusion of the hearing, the municipal

court dismissed both of the Commonwealth’s cases for lack of evidence.

      The Commonwealth subsequently filed notices of refiling of a criminal

complaint, at each docket number, with the trial court. Argument was held

on December 22, 2017.       On January 8, 2018, the trial court granted the

Commonwealth’s motion to refile charges as to possession of an instrument

of a crime and simple assault, but denied the Commonwealth’s motions to

refile aggravated assault and REAP charges. The trial court remanded both

cases to the municipal court for further proceedings on the remaining charges.




                                        -6-
J-A09028-19



        On February 6, 2018, the Commonwealth filed an interlocutory appeal

of the trial court’s January 8, 2018 order.2 Both the Commonwealth and the

trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.

The trial court opined that the Commonwealth failed to establish prima facie

cases of aggravated assault and REAP. Trial Court Opinion, 5/21/18, at 8, 9.

        Conversely, the Commonwealth presents a single, multi-part issue for

our review:

              Did the Commonwealth present sufficient evidence to
        establish a prima facie case of aggravated assault and reckless
        endangering another person where [Appellee] aimed his gun at
        the victims and pulled the trigger at least five times on a crowded
        public street?

Commonwealth Brief at 4. In arguing that it established prima facie cases of

both offenses, the Commonwealth asserts that the trial court “failed to

consider the evidence in the light most favorable to the Commonwealth.” Id.

at 8.

        At the outset, we recognize:

              It is settled that the evidentiary sufficiency, or lack thereof,
        of the Commonwealth’s prima facie case for a charged crime is a
        question of law as to which an appellate court’s review is plenary.
        The trial court is afforded no discretion in ascertaining whether,
        as a matter of law and in light of the facts presented to it, the
        Commonwealth has carried its pre-trial prima facie burden to
        make out the elements of a charged crime. Therefore, we are not
        bound by the legal determinations of the trial court.
____________________________________________


2  In compliance with Pennsylvania Rule of Appellate Procedure 311(d), in its
notice of appeal, the Commonwealth “certifies . . . that the order will terminate
or substantially handicap the prosecution” of Appellee. Commonwealth Notice
of Appeal, 2/6/18, at 1.

                                           -7-
J-A09028-19



Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa. Super. 2018) (citations

omitted).

     Further, the law is well-settled as to the prima facie standard required

of the Commonwealth:

           “A prima facie case consists of evidence, read in the light
     most favorable to the Commonwealth, that sufficiently
     establishes both the commission of a crime and that the accused
     is probably the perpetrator of that crime.” Commonwealth v.
     Black, 108 A.3d 70, 77 (Pa. Super. 2015) (citation omitted). As
     we have previously explained:

            The Commonwealth establishes a prima facie case
            when it produces evidence[] that, if accepted as true,
            would warrant the trial judge to allow the case to go
            to a jury. The Commonwealth need not prove the
            elements of the crime beyond a reasonable doubt;
            rather, the prima facie standard requires evidence of
            the existence of each and every element of the crime
            charged. Moreover, the weight and credibility of the
            evidence are not factors at this stage, and the
            Commonwealth need only demonstrate sufficient
            probable cause to believe the person charged has
            committed the offense.      Inferences reasonably
            drawn from the evidence of record which would
            support a verdict of guilty are to be given effect,
            and the evidence must be read in the light most
            favorable to the Commonwealth’s case.

     Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super.
     2011) (internal citations and quotations omitted) (emphasis
     added). Moreover, “suspicion and conjecture are not evidence
     and are unacceptable as such.” Commonwealth v. Packard,
     767 A.2d 1068, 1071 (Pa. Super. 2001) (citations omitted). Proof
     beyond a reasonable doubt is not required. Black, 108 A.3d at
     70; see [Commonwealth v. McBride, 595 A.2d 589, 591 (Pa.
     1991)] (noting that the prima facie hurdle is less demanding than
     the Commonwealth’s burden at trial of proving guilt beyond a
     reasonable doubt).



                                    -8-
J-A09028-19



Ouch, 199 A.3d at 923 (emphasis in original).

       The Commonwealth claims that the trial court incorrectly determined

that it failed to prove prima facie cases of aggravated assault for Appellee’s

actions on September 1, 2017. Commonwealth Brief at 9-14. “A person is

guilty of aggravated assault if he . . . attempts to cause serious bodily injury

to another, or causes such injury intentionally, knowingly, or recklessly under

the circumstances manifesting extreme indifference to the value of human

life.” 18 Pa.C.S.A. § 2702(a)(1). Section 2301 provides that 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.A. § 2301.

       “When no serious bodily injury results from the accused actions, the

Commonwealth must prove that he attempted to cause another to suffer such

injuries.” Commonwealth v. Lopez, 654 A.2d 1150, 1154 (Pa. Super. 1995)

(citations omitted). We have stated:

       For aggravated assault purposes, an ‘attempt’ is found where the
       accused, with the required specific intent,3 acts in a manner which
____________________________________________


3   Section 302 provides the following as to the mens rea of intent:

       (1) A person acts intentionally with respect to a material element
       of an offense when:

       (i) if the element involves the nature of his conduct or a result
       thereof, it is his conscious object to engage in conduct of that
       nature or to cause such a result; and




                                           -9-
J-A09028-19


       constitutes a substantial step toward perpetrating a serious bodily
       injury upon another. As our Court has previously stated: An intent
       is a subjective frame of mind, it is of necessity difficult of direct
       proof. We must look to all the evidence to establish intent,
       including, but not limited to, [defendant’s] conduct as it appeared
       to his eyes. Intent can be proven by direct or circumstantial
       evidence; it may be inferred from acts or conduct or from the
       attendant circumstances.

Commonwealth v. Alford, 880 A.2d 666, 670-71 (Pa. Super. 2005) (citation

omitted). “The finder of fact is free to conclude that the accused intended the

natural and probable consequences of his actions to result therefrom.”

Commonwealth v. Rosado, 684 A.2d 605, 608 (Pa. Super. 1996) (citation

omitted).    “The fact that the accused misapprehended the circumstances,

thereby making it impossible for him to commit the crime attended, is not a

defense to an attempt crime.” Lopez, 654 A.2d at 1154 (citing 18 Pa.C.S.A.

§ 901(b)). Therefore, “if the accused intends to cause serious bodily injury to

another, then proceeds to perform all of the acts necessary to do so, the

accused can still be guilty of aggravated assault even though completing an

aggravated assault is impossible.” Id. (citations omitted).

       The Commonwealth also contends that the trial court incorrectly

prohibited it from refiling REAP charges against Appellee at both dockets.

Commonwealth Brief at 15-16. An individual is guilty of REAP if “he recklessly

engages in conduct which places or may place another person in danger of

____________________________________________


       (ii) if the element involves the attendant circumstances, he is
       aware of the existence of such circumstances or he believes or
       hopes that they exist.

18 Pa.C.S.A. § 302(b)(1)(i), (ii).

                                          - 10 -
J-A09028-19



death or serious bodily injury.”      18 Pa.C.S.A. § 2705.       “To sustain a

conviction for [REAP], the Commonwealth must prove that the defendant

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

to do so.” Commonwealth v. Martuscelli, 54 A.3d 940, 949 (Pa. Super.

2012) (citation omitted) (emphasis added). “Danger, not merely the

apprehension of danger, must be created.” Id. However, “[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 bodily injury or death.” Commonwealth v. Vogelsong, 90 A.3d 717,

721 (Pa. Super. 2014) (citation omitted) (emphasis added). “The mens rea

for [REAP] is a conscious disregard of a known risk of death or great bodily

harm to another person.” Martuscelli, 54 A.3d at 949 (citation omitted).

      Because REAP “is a crime of assault which requires the creation of

danger . . . there must be an actual present ability to inflict harm.”

Commonwealth v. Reynolds, 835 A.2d 720, 727-28 (Pa. Super. 2003)

(citations omitted). Therefore, “the pointing of an unloaded weapon, without

more, does not constitute [REAP].”     Commonwealth v. Gouse, 429 A.2d

1129, 1131 (Pa. Super. 1981) (citation omitted).

      However, “even if a defendant’s gun is unloaded, the surrounding

circumstances may be sufficient to sustain a conviction of REAP.” Reynolds,

835 A.2d at 728 (sustaining a conviction of REAP, where the defendant pointed

an unloaded gun at a victim, but “the surrounding circumstances were such

that [defendant] created an actual danger by pointing the gun, whether or not

                                     - 11 -
J-A09028-19



it was actually loaded and capable of firing.”). As such, when a charge of

REAP involves a firearm, the Commonwealth can either prove the ability to

inflict harm by showing either “that the gun was loaded or the surrounding

circumstances were inherently dangerous.” Commonwealth v. Baker, 429

A.2d 709, 711 (Pa. Super. 1981).      See also Martuscelli, 54 A.3d at 949

(“Brandishing 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 [another], and that he

had the present ability to inflict great bodily harm or death.”) (citation

omitted) (emphasis added); Commonwealth v. Hartzell, 988 A.2d 141, 144

(Pa. Super. 2009) (“The act of pointing a loaded gun has been deemed

sufficient to support a conviction for REAP.”) (citation omitted).

      Upon review, we conclude that the trial court, in denying the

Commonwealth’s request to refile aggravated assault and REAP charges,

erroneously viewed the evidence in the light most favorable to Appellee. In

viewing the record in a light most favorable to the Commonwealth, the

testimony presented at Appellee’s preliminary hearing establishes a prima

facie case of aggravated assault against Appellee at both criminal dockets. If

the facts presented by the Commonwealth at Appellee’s preliminary hearing

are presented at trial, the fact-finder may determine whether Appellee

attempted to cause both Paul Riley and Curtis Gardner serious bodily injury.

Lopez, 654 A.2d at 1155. Likewise, there is sufficient evidence to support

prima facie cases against Appellee for REAP at both criminal dockets. The trial

                                     - 12 -
J-A09028-19



court therefore committed an error of law in precluding the Commonwealth

from refiling aggravated assault and REAP charges against Appellee.

      In its opinion, the trial court cites two considerations in support of its

decision: 1) Appellee’s firearm was unloaded, and 2) his actions were in self-

defense. As to Appellee’s alleged aggravated assault of Mr. Riley, the trial

court stated:

              Here, there is no evidence that Appellee had the intent to
      inflict bodily injury on anyone, nor did he threaten, verbalize, or
      otherwise demonstrate the intent to do so. At most, the testimony
      showed that Appellee pointed his gun at several people under
      circumstances that demonstrate that Appellee was not the
      aggressor; to the contrary, the evidence revealed that Appellee
      lifted his shirt to show he had a weapon, at which point Mr. Riley
      put his hands on Appellee. Appellee had a license to carry the
      firearm and an active Act 235 license, and the evidence did not
      establish that there were any bullets available to the gun
      and in the magazine which would have been noted on the
      police paperwork. To the contrary, the testimony indicated that
      Mr. Riley was the aggressor, that Appellee pointed his weapon at
      Mr. Riley after Riley had put his hands upon Appellee first, and
      that, upon seeing the firearm, Mr. Riley struck Appellee. Since
      the two men began to fistfight thereafter, it appears that
      Appellee was acting in self-defense, rather than with the
      intent to cause serious bodily injury.

Trial Court Opinion, 5/21/18, at 7-8 (emphasis added, footnotes omitted).

      With regard to its decision to deny the refiling of aggravated assault

charges against Appellee as to Mr. Gardner, the trial court stated:

            Similarly, with respect to Mr. Gardner, after Appellee left the
      bar and Mr. Gardner — whose testimony about exactly what
      happened wasn’t clear — approached Appellee while Appellee was
      on his cellphone, after which, again, Appellee was attacked by two
      bars’ patrons before Appellee took out the gun and pointed it, or
      pulled the trigger, or ratcheted the empty gun. In both instances,
      although it was alleged that Appellee pulled the trigger of the gun

                                     - 13 -
J-A09028-19


      several times, the weapon did not fire. Therefore, at most,
      Appellee pointed an unloaded gun at two individuals who were
      the apparent aggressors. As such, a prima facie case of
      aggravated assault cannot be sustained.

Id. at 8 (emphasis added, footnote omitted). The trial court continued:

      At the argument in front of this court on the Commonwealth’s
      refiling of charges, there was a disagreement between counsel as
      to whether the gun was loaded. See Notes of Testimony, Dec.
      22, 2017 hearing, p. 9. However, no ballistics documentation
      indicated any live rounds in the licensed weapon and
      magazine whatsoever, which would have been included in
      the testimony and the ballistics documentation and the
      other police paperwork.

Id. (emphasis added).

      In addressing the REAP charges brought against Appellee for his actions

on September 1, 2017, the trial court opined:

            Pointing an unloaded weapon, without more, does not
      constitute    recklessly  endangering   another    person.
      Commonwealth v. Grouse, 429 A.2d 1128 [] ([Pa. Super.]
      1981).

            As with the charges of aggravated assault, the evidence at
      the preliminary hearing demonstrated that appellee pointed an
      unloaded gun at several individuals with whom he was having a
      physical altercation in which they were the aggressors. The
      Commonwealth was unable to prove either the mens rea on the
      part of Appellee, nor the danger of death or serious bodily injury
      as to any persons.

Trial Court Opinion, 5/21/18, at 9 (emphasis added).

      Upon careful review, we are not persuaded by the trial court’s factual or

legal analysis. Our examination of the record in a light most favorable to the

Commonwealth reveals that on September 1, 2017, Appellee pulled a firearm

from his waistband, pointed it at the body of Mr. Riley, and pulled the trigger


                                    - 14 -
J-A09028-19



twice.     N.T., 10/18/17, at 9.    However, the firearm failed to fire.     Id.

Thereafter, a fistfight ensued, Appellee pulled the firearm out a second time,

again attempting to fire at Mr. Riley, but the firearm again failed to discharge.

Id.

         The evidence presented at the preliminary hearing further shows that

after his interactions with Mr. Riley, Appellee encountered Mr. Gardner, who

attempted to question Appellee about the incident with one of his employees,

Mr. Riley. Id. at 19. After being approached by Mr. Gardner, Appellee pulled

out his firearm a third time, pointed it at Mr. Gardner, and pulled the trigger

two times. Id. at 20, 21. However, when the weapon again failed to fire,

Appellee “proceeded to pull the slide back so he could chamber another

round.” Id. at 21.

         Next, after attempting to discharge the firearm while it was pointed at

Mr. Gardner, Appellee pointed the firearm at other individuals who were

standing next to Mr. Gardner, and as well as individuals waiting at a nearby

bus stop. Id. at 21-22. As a result of Appellee pointing the firearm at the

people gathered at the bus stop, a woman “almost knocked [a] baby over

trying to get away,” and people in line at the Eagle Bar began to scatter. N.T.,

10/18/17, at 21, 22.      During the course of their attempts to escape, “[a]

woman was almost hit by a bus because of [Appellee] pointing his weapon.”

Id. at 22. Appellee then pulled the slide on the firearm back two times and

pointed it at the crowd outside the Clock Bar. Id.




                                      - 15 -
J-A09028-19



       The evidence also showed that shortly after the above events, Mr.

Gardner positively identified Appellee as the individual the police had in

custody. Id. at 23. Mr. Gardner then witnessed the police remove the firearm

from Appellee’s person and “[take] the clip out of the weapon.” Id. Finally,

the parties stipulated at the preliminary hearing that the firearm recovered

from Appellee’s person was a .380 semi-automatic pistol. Id. at 30.

       In denying the Commonwealth’s request to refile charges, the trial court

primarily relies on the factual conclusion that Appellee’s firearm was unloaded

because it failed to discharge. We disagree and hold that the Commonwealth

offered sufficient evidence to prove prima facie cases of aggravated assault

and REAP at the preliminary hearing.

       We reiterate that “[i]nferences reasonably drawn from the evidence of

record which would support a verdict of guilty are to be given effect, and the

evidence must be read in the light most favorable to the Commonwealth’s

case.”   Marti, 779 A.2d at 1180 (emphasis added).        The transcript of the

October 18, 2017 preliminary hearing, read in a light most favorable to the

Commonwealth, fails to support the trial court’s conclusion that Appellee’s

firearm was unloaded.         To the contrary, from the testimony presented, a

reasonable factfinder could conclude that Appellee’s firearm was loaded,4

____________________________________________


4 Furthermore, the affidavit of probable cause, which is part of the certified
record, states that the firearm taken from Appellee immediately after his
interactions with Mr. Riley and Mr. Gardner was “loaded with 4 rounds in the
magazine and no round in the chamber[.]” Affidavit of Probable Cause,
10/3/17, at 2 (emphasis added).

                                          - 16 -
J-A09028-19



based upon Appellee’s multiple attempts to both discharge the firearm by

pulling its trigger, and also his repeated actions of “pull[ing] the slide back so

he could chamber another round.” N.T., 10/18/17, at 9, 21.

      The only source from which the trial court could have concluded that

Appellee’s firearm was unloaded was defense counsel’s bald assertion that

“[i]t was not a loaded gun” at argument held before the trial court on

December 22, 2017. N.T., 12/22/17, at 9. This assertion was contested by

the Commonwealth, but appears to have been accepted by the trial court as

fact. Id. (responding to defense counsel’s assertion, the trial court stated:

“All right. It was not a loaded gun.”). However, defense counsel’s assertion

at argument is not a proper basis for such finding in determining whether a

prima facie case of a crime exists, and the trial court therefore erred in using

the finding in making its legal determination.

      Additionally, the trial court’s conclusion that the Appellee acted in “self-

defense” was also improper in making the legal conclusion of whether prima

facie cases exist at the pre-trial stage.     Such a determination under 18

Pa.C.S.A. § 505 is to be made by the fact-finder at trial, and not in preliminary

proceedings. See Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001)

(“When a defendant raises the issue of self-defense, the Commonwealth bears

the burden to disprove such a defense beyond a reasonable doubt. . . . If

there is any evidence that will support the [self-defense] claim, then the issue

is properly before the fact[-]finder.”) (citations omitted) (emphasis added);

Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa. Super. 2005) (“It

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remains the province of the jury to determine whether the accused’s belief

was reasonable, whether he was free of provocation, and whether he had no

duty to retreat.”) (citation omitted) (emphasis added); Commonwealth v.

Hill, 629 A.2d 949, 952 (Pa. Super. 1993) (“The issues of whether a defendant

acts out of an honest, bona fide belief [that he was in imminent danger] and

whether such belief was reasonable are questions properly resolved by the

finder of fact.”) (emphasis added). Accordingly, the trial court committed

further legal error by basing its decision not to let the Commonwealth refile

aggravated assault and REAP charges against Appellee on a self-defense

determination that is reserved for the finder of fact at trial.

      Mindful of the foregoing, our review of the record reveals that as a

matter of law, the Commonwealth offered sufficient evidence to prove prima

facie cases of aggravated assault at both of Appellee’s criminal dockets. In

the light most favorable to the Commonwealth, the evidence at the

preliminary hearing would allow a fact-finder to reasonably conclude that

Appellee attempted to cause serious bodily injury to both Mr. Riley and Mr.

Gardner when he pointed his firearm at both and pulled the trigger multiple

times. Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. Super. 2005)

(“[I]n instances where the defendant has both drawn and fired (or drawn

and misfired) a gun, we have consistently held that an aggravated assault

occurred.”) (emphasis added) (citing cases). See also Commonwealth v.

Chance, 458 A.2d 1371, 1374-75 (Pa. Super. 1983) (“where the defendant

and a bar owner became involved in a struggle and the gun of the defendant

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clicked several times while it was pointed at the bar owner, the evidence was

sufficient to show an aggravated assault on the bar owner notwithstanding

the fact that the gun was not actually loaded.”) (citing Commonwealth v.

Bond, 396 A.2d 414 (Pa. Super. 1978)).

      The fact-finder could also conclude that Appellee intended the natural

and probable consequences of pointing and pulling the trigger of a firearm, to

result therefrom. Rosado, 684 A.2d at 608. Impossibility, i.e., the firearm

not being able to fire, for any reason, would not be a defense where Appellee

mistakenly thought the firearm would discharge while pointed at either Riley

or Gardner.    Lopez, 654 A.2d at 1154 (citing 18 Pa.C.S.A. § 901(b)).

Therefore, based upon the evidence offered by the Commonwealth at the

preliminary hearing and the reasonable inferences derived therefrom, prima

facie cases of aggravated assault were established at both dockets.

      We further hold that the Commonwealth established prima facie cases

of REAP.    At docket number 29287-2017, the evidence proffered by the

Commonwealth at the preliminary hearing established that Appellee may have

placed Mr. Riley in danger of death or serious bodily injury by engaging in

reckless conduct.    Vogelsong, 90 A.3d at 721.        While we recognize that

pointing an unloaded firearm at someone has been previously held as an

insufficient basis for a REAP conviction, Gouse, 429 A.2d at 1131, from

Appellee’s actions on September 1, 2017, a fact-finder could reasonably infer

that Appellee had an actual present ability to inflict harm, i.e., the firearm was

loaded.    Reynolds, 835 A.2d at 727-28.         The Commonwealth therefore

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carried its prima facie burden of establishing that Appellee may have placed

Mr. Riley in danger of death or serious bodily injury on September 1, 2017.

      As to the REAP charge at docket number 29288-2017, we also hold that

pointing a firearm at Mr. Gardner and pulling the trigger multiple times is

sufficient to establish a prima facie case. However, we note that Appellee’s

alleged actions at this docket number may also support a conviction under the

“inherently dangerous surrounding circumstances” theory, regardless of

whether a factfinder concludes Appellee’s firearm was loaded when he aimed

it at Mr. Gardner and pulled the trigger.      Baker, 429 A.2d at 711.        The

Commonwealth carried its burden of establishing that Appellee may have

placed Mr. Gardner, and/or those individuals outside the Clock Bar and Eagle

Bar, in danger of death or serious bodily injury.

      In sum, the trial court incorrectly based its legal conclusions on a factual

conclusion unsupported by the record, as well as a premature conclusion that

Appellee was acting in self-defense. In reviewing the evidence presented at

the preliminary hearing in the light most favorable to the Commonwealth, as

we must, we conclude that the Commonwealth met its burden of establishing

a prima facie case of aggravated assault and REAP at both of Appellee’s

criminal dockets. To view the evidence otherwise would be to view it in the

light most favorable to Appellee.

      Accordingly, we reverse the trial court’s January 8, 2018 order and

remand for further proceedings, including the reinstatement of the charges.

      Order reversed. Case remanded. Jurisdiction relinquished.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/19




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