J-S45020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ERNEST ORTIZ

                            Appellant                No. 1303 EDA 2013


            Appeal from the Judgment of Sentence of April 18, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0007591-2012


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                       FILED SEPTEMBER 04, 2014

       Ernest Ortiz appeals his April 18, 2013 judgment of sentence, which

was entered following his non-jury conviction of simple assault and
                                                      1,2
                                                            Before us, Ortiz

challenges the sufficiency of the evidence to sustain his REAP conviction.

We affirm.

       The evidence adduced at trial, viewed in the light most favorable to

the Commonwealth as verdict-winner, supports the following account of the

____________________________________________


*
       Former Justice specially assigned to the Superior Court.
1
       18 Pa.C.S. §§ 2701 and 2705, respectively.
2
       Ortiz was acquitted of aggravated assault, possession of an instrument
of crime, prohibited offensive weapons, terroristic threats, and intimidation
of a victim. See 18 Pa.C.S. §§ 2702, 907, 908, 2706, and 4952.
J-S45020-14



factual history of this case. On June 10, 2012, Ortiz approached the victim,

Irving Flores Alejo, while Alejo was sitting on the steps of his house with his

girlfriend and another friend. Alejo recognized Ortiz as the person who had

allegedly mugged him two weeks prior to this incident.      Accordingly, Alejo

asked Ortiz not to speak to him. However, Ortiz continued to speak to him.

Again, Alejo asked Ortiz not to speak to him and threatened to call the




24.   Immediately after this exchange, Ortiz left.   Shortly thereafter, while

Alejo was speaking to his girlfriend and another friend, Ortiz returned and

struck Alejo, unexpectedly, in the side of the head. Alejo testified that Ortiz

ran away immediately after striking him.      Alejo received five stitches to

repair the wound on his face.

      While on duty that same day, Officer Dennis Zungolo received a flash

around 6:40 p.m., which indicated that an offender who had committed an

assault lived at 1905 South 5th Street.    Officer Zungolo responded to the

flash, and, at approximately 7:10 p.m., came upon Ortiz and stopped him

for an investigation.     Officer Zungolo ultimately arrested Ortiz        and

transported him to Methodist Hospital, where Alejo positively identified Ortiz

as the man who had assaulted him that day.

      The learned trial court summarized the procedural history of this case

as follows:




                                     -2-
J-S45020-14


       A [stipulated] non-jury trial was held on March 5, 2013 after

       waiving his right to a jury trial. [Ortiz] is illiterate and cannot
       read or write English.3     He did, however[,] state that his
       attorney did explain the terms of the written colloquy to him and
       that he signed it after the explanation. Despite his illiteracy,


       [Ortiz], through counsel, then waived arraignment and entered a
       plea of not guilty on all charges.

       After hearing the testimony of the victim, Irving Flores Alejo,
       and Police Officer Dennis Zungolo for the Commonwealth, and

       guilty [of simple assault and REAP.]

       On April 18, 2013, [Ortiz] was sentenced by [the trial court] to
       incarceration of one to two years, to be followed by two years
       [of] reporting probation. He was also ordered to complete drug
       and alcohol rehabilitation, anger management classes[,] and
       undergo a mental health evaluation. His probation is to be
       monitored through the Mental Health Unit, given his history of
       mental illness.

                                                     -2.

       On May 1, 2013, Ortiz filed a timely notice of appeal. The trial court

ordered Ortiz to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).           Ortiz timely complied.   On October 28,

2013, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).



evidence insufficient to convict [Ortiz] of recklessly endangering another
____________________________________________


3
       Although he cannot read or write English, Ortiz can speak and
understand English. See N.T. at 5-
testified for the defense) and the victim, Alejo, made use of a Spanish
translator while testifying. Id. at 19, 64. Ortiz did not testify at trial.



                                           -3-
J-S45020-14




head did not place the complainant in danger of death or serious bodily



evidence to establish that he struck the victim in the head. Nor does Ortiz

claim that he acted in self-defense, or that he lacked the necessary mens

rea

failure to prove that Alejo was in danger of death or serious bodily injury.

      Our standard of review in this context is well-established:

                                                     ther the evidence
      admitted at trial, and all reasonable inferences drawn from that
      evidence, when viewed in the light most favorable to the
      Commonwealth as verdict[-]winner, was sufficient to enable the
      fact[-]finder to conclude that the Commonwealth established all

      Commonwealth v. Eichinger, 915 A.2d 1122, 1130
      (Pa. 2007). Additionally, when examining sufficiency issues,

      sustained by means of wholly circumstantial evidence; the entire
      trial record is evaluated and all evidence received against the
      defendant considered; and the trier of fact is free to believe all,
      part, or none of the evidence when evaluating witness
                    Commonwealth v. Markman, 916 A.2d 586, 598
      (Pa. 2007).

Commonwealth v. Crabill, 926 A.2d 488, 490-91 (Pa. Super. 2007)



evidence is circumstantial rather than direct so long as the combination of



Commonwealth v. Brunson, 938 A.2d 1057, 1058 (Pa. Super. 2007)

(quoting Commonwealth v. Swerdlow, 636 A.2d 1173, 1176 (Pa. Super.


                                     -4-
J-S45020-14




or conjecture, the Commonwealth need not establish guilt to a mathematical

              Id. (quoting Commonwealth v. Badman, 580 A.2d 1367,

1372 (Pa. Super. 1990)).




18

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

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



Section 2705, the Commonwealth must prove that the defendant had an

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



Commonwealth v. Cordoba, 902 A.2d 1280, 1288 (Pa. Super. 2006)

(citing Commonwealth v. Hopkins, 747 A.2d 910, 915-16 (Pa. Super.



                                                  ipso facto[,] establish that



                    Commonwealth v. Lawton, 414 A.2d 658, 663 (Pa.

Super. 1979).

     In the present case, Ortiz argues that a single blow to the head, which

resulted in a wound requiring five stitches, did not place Alejo in danger of




                                    -5-
J-S45020-14



     The Commonwealth failed to prove beyond a reasonable doubt
     that this single punch created a known and foreseeable risk that
     [Alejo] would die or suffer permanent disfigurement. A fortiori,
     [Ortiz] cannot be said to have consciously disregarded such a
     risk.

                                *     *     *

     By contrast, this Court has upheld convictions for reckless
     endangerment where the danger of death or serious bodily injury

     not immediately evident.




danger of serious bodily

devastating." T.C.O. at 9.

     By    way   of   illustrative   contrast,   Ortiz   offers   citations   to

Commonwealth v. Brunson, 938 A.2d 1057, 1061 (Pa. Super. 2007)

(upholding REAP conviction where defendant repeatedly punched, and



            Commonwealth v. Cottam, 616 A.2d 988, 1004 (Pa. Super.

1992) (upholding REAP conviction where defendants failed to feed their



and Commonwealth v. Rochon, 581 A.2d 239, 244 (Pa. Super. 1990)

(upholding REAP conviction where defendant beat her seventeen-month-old

                                                                          came




                                     -6-
J-S45020-14




actions led to life-                                                  Id. at 10

(hyphen added).     In the                         -

Ortiz argues, his REAP conviction must be overturned. We disagree.

        The cases cited by Ortiz represent instances of extreme conduct that

fall under the definition of REAP.    However, such cases do not cover the

entire waterfront of situations in which an REAP conviction is valid.

Instantly, Ortiz has focused his argument on the fact that Alejo did not



as our recitation of case law above indicates, the quality of injury actually

sustained by a victim is not determinative in this context.    See Lawton,

supra

inflict serious bodily injury, that controls.   See Cordoba, supra.    The fact



        Our review of Pennsylvania case law has uncovered no cases that are

directly analogous to the present one. However, in Lawton, a panel of this

Court determined that an unarmed man committed REAP when he

threatened several people in a crowded Philadelphia subway station, and



Lawton, 414 A.2d at 662. The panel in Lawton discussed Section 2705,

and sufficiency of the evidence, as follows:

        Reckless endangerment is defined in 18 Pa.C.S. § 2705 as



                                      -7-
J-S45020-14


         [S]ection 211.2 of the Model Penal Code. The commentary to
         the Model Penal Code provides that [S]ection 211.2

           Establishes a general prohibition of recklessly engaging in
           conduct which places or may place another person in
           danger of death or serious bodily injury. It does not
           require any particular person to be actually placed in
           danger, but deals with potential risks, as well as cases
           where a specific person actually is within the zone of
           danger.

Id.                                                                    lant may

have only struck the victim and another unidentified individual, his action of

swinging indiscriminately into a crowd of students was sufficient to establish

beyond a reasonable doubt that he may have placed other persons in danger

of serious bodi            Id. While there is no allegation in the instant case

that Ortiz placed anyone but the victim in immediate danger, we read

Lawton for the general proposition that a victim of REAP, who is also an




assailant in Lawton was found to have committed REAP on the basis of

nothing more than swinging his fists, with no apparent target selected in

advance.     Here, by contrast, the trial evidence showed that Ortiz targeted

Alejo.



noting that the evidence presented by the Commonwealth suggests that

                                    . At trial, Alejo testified that Ortiz struck




                                      -8-
J-S45020-14


              See N.T. at 21. Specifically, Alejo testified that immediately

                                                                hing metal on

                                                                       Id. at

22-23. Although Alejo could not identify precisely what Ortiz was holding in



Alejo with something, as opposed to merely hitting him with his naked fist.

This testimony, viewed in the light most favorable to the Commonwealth as

verdict-winner, see Crabill, supra, was sufficient circumstantial evidence to

allow the trial court to conclude that Ortiz used a weapon to assault Alejo.

                                                        see Commonwealth

v. Alexander



una

demonstrate that Ortiz possessed an actual ability to inflict physical harm

upon Alejo, and not merely a theoretical ability to do so.

      Based upon the foregoing discussion, we conclude that there was

sufficient evidence for the trial court to conclude that Ortiz committed REAP.

Our case law demonstrates that a single blow to the head cannot be

assumed to carry only a de minimis risk of serious bodily injury.        See

Commonwealth v. Burton, 2 A.3d 598, 605 (Pa. Super. 2010) (en banc)




                                     -9-
J-S45020-14


Commonwealth v. Patrick, 933 A.2d 1043, 1047-48 (Pa. Super. 2007)

(holding that the         Commonwealth presented a        prima facie   case   for

aggravated assault upon the basis of the assailant delivering a single punch
                     4
                         Specifically, in both Burton and Patrick, the respective




victims in Burton and Patrick were felled and struck their heads upon the

concrete, thereby greatly exacerbating their injuries. See Burton, 2 A.3d at



to the pavement without the benefit of a reflexive action to protect against

            Patrick, 933 A.2d at 1047 (same).

       While Burton and Patrick do not specifically address the claim raised

by Ortiz in this case, they are highly instructive in elucidating the potential

harms that may result from single blows to the head.              Although Ortiz



____________________________________________


4
      We cite to Burton and Patrick for the general proposition that a
single blow to the head carries a real risk of serious bodily injury. Both
cases dealt explicitly with sufficiency of the evidence in the context of the
crime of aggravated assault, an offense which is not at issue in the instant

for the purposes of both aggravated assault and REAP is identical. See 18

article shall have, unless the context clearly indicates otherwise, the
                                                Burton and Patrick are
germane to this discussion for the limited purpose of establishing that




                                          - 10 -
J-S45020-14


                                                                 have had that

ultimate result.     Here, viewed in the light most favorable to the

Commonwealth, the evidence indicates that Ortiz struck Alejo with a

weapon, while Alejo was unawares, and that this assault resulted in physical

injury.   Under Section 2705, we are not only concerned with the actual

injuries inflicted as the result of an assault, but with the potential for harm it

presented. Lawton, supra. Here, viewed in the context of our Burton and

Patrick precedents, Ortiz ignored the palpable risk that Alejo would suffer



      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/2014




                                     - 11 -
