J. A10008/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                   v.                      :
                                           :
ERIC MARCED,                               :
                         APPELLANT         :
                                           :
                                           :     No. 2261 EDA 2014

              Appeal from the Judgment of Sentence July 10, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005207-2013

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                               FILED JULY 24, 2017

        Appellant, Eric Marced, appeals from the July 10, 2014 Judgment of

Sentence entered by the Court of Common Pleas of Philadelphia County

following his conviction of Possessing Instruments of Crime (“PIC”) and

Recklessly Endangering Another Person (“REAP”) following a bench trial.1

After careful review, we conclude that the Commonwealth failed to disprove

that Appellant was acting in self-defense during the fight, and thus, did not

prove that Appellant had the mens rea of recklessness, a required element

of REAP.      Accordingly, we reverse in part, affirm in part, vacate the

Judgment of Sentence, and remand for resentencing.




1
    18 Pa.C.S. § 907(a) and 18 Pa.C.S. § 2705, respectively.
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      The underlying facts are not in dispute.   The trial court summarized

the factual history as follows:

      On January 1, 2013, at approximately 8:10 P.M., Officer Dwayne
      Johnson (hereinafter "[Officer] Johnson") was working as a
      correction officer at the Philadelphia Industrial Correctional
      Center on cell block G1. [Officer] Johnson was working with his
      partner, Officer Gibson. [Officer] Johnson was sitting behind a
      desk when he heard a commotion. Two inmates were engaged
      in a physical altercation. The two inmates were swinging at each
      other with closed fists, two homemade knives with a closed fist
      sharpened at the edge. In prison, these homemade knives are
      called shanks.

      When [Officer] Johnson stood up there were 100 inmates circled
      around the two inmates that were fighting, Anthony Harrison
      [(“Harrison”)] and Appellant. [Officer] Johnson ran over to the
      fight and found the inmates wrestling with each other side-by-
      side swinging closed fists at each other. The other inmate
      involved in the fight, [Harrison], was bleeding from the back of
      his head. Both [] Appellant and the other inmate, [Harrison,]
      were taken to the medic. [Officer] Johnson did not notice any
      injury on [] Appellant. Counsel stipulated to the introduction of
      medical records of [Harrison,] who was transported from PICC
      on January 1, 2013[,] to Aria Health Hospital and was treated
      there for a stab wound and released on January 4, 2013.

Trial Court Opinion, filed 3/22/16, at 2-3.

      Appellant was charged with PIC, REAP, and related offenses. After a

bench trial, the trial court found Appellant guilty of PIC and REAP and

subsequently sentenced him to term of eighteen to thirty-six months’

incarceration followed by two years of probation for the PIC conviction and a

concurrent two years of probation for the REAP conviction. 2


2
  The trial court acquitted Appellant of Aggravated Assault and Simple
Assault charges. 18 Pa.C.S. § 2702 and 18 Pa.C.S. § 2701, respectively.



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      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following issue on appeal: “Was not the evidence

insufficient to support [A]ppellant’s convictions for [REAP] and [PIC]”?

Appellant’s Brief at 3.

      Our standard of review for sufficiency of evidence claims is well

settled:

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention
      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      Recklessly Endangering Another Person

      Appellant argues that the trial court erred in convicting him of REAP

because the Commonwealth failed to disprove that Appellant acted in self-

defense, and acting in self-defense negates the required mens rea of

recklessness. Appellant’s Brief at 8. We agree.

      A person is guilty of REAP if “he recklessly engages in conduct which

places or may place another person in danger of death or serious bodily



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injury.” 18 Pa.C.S. § 2705. The crime of REAP requires the Commonwealth

to prove: (1) a mens rea of recklessness, or conscious disregard of a known

risk of death or great bodily harm to another, (2) a physical act, (3)

causation, and (4) the achievement of a particular result, namely danger to

another person of death or serious bodily injury.      Commonwealth        v.

Reynolds, 835 A.2d 720, 727 (Pa. Super. 2003).

      Our Supreme Court has held that a claim of self-defense, if believed by

the fact-finder, negates any mens rea of recklessness. Commonwealth v.

Fowlin, 710 A.2d 1130, 1132-33 (Pa. 1998); Commonwealth v. Hilbert,

382 A.2d 724, 731 (Pa. 1978). A fact-finder cannot find that a defendant

justifiably acted in self-defense and simultaneously hold the defendant

criminally liable for crimes involving recklessness. Fowlin, supra at 1132.

      When one employs deadly force, as Appellant did instantly, the

elements of a claim of self-defense are that the individual 1) reasonably

believed that force was necessary to protect himself against death or serious

bodily injury; 2) was free from fault in provoking the use of force against

him; and 3) did not violate any duty to retreat.        Commonwealth v.

Mouzon, 53 A.3d 738, 740 (Pa. 2012); see also 18 Pa.C.S § 505(b)(2).

      A defendant does not have a burden to prove a claim of self-defense.

Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001).            Rather, the

burden is on the Commonwealth to disprove the defense of self-defense.

Id.   Once a party introduces some evidence to justify a finding of self-



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defense, then the issue is properly before the fact-finder and the

Commonwealth bears the burden to disprove the defense beyond a

reasonable doubt. Id.

      In this case, we conclude that Officer Johnson’s testimony – that he

observed Harrison swinging a shank at Appellant and that he did not witness

who initiated the fight – provided “some evidence” to support a finding of

self-defense. See id. If Harrison provoked the fight, Appellant could have

reasonably believed that force was necessary to protect himself.

      Once the issue of self-defense was before the fact-finder, it was the

Commonwealth’s burden to disprove the defense beyond a reasonable

doubt.   See id.   The Commonwealth failed to present any evidence as to

whether it was reasonable for Appellant to use a shank to protect himself,

who initiated the fight, or whether Appellant could have retreated without

using a shank. See Mouzon, supra at 740. The Commonwealth did not

present testimony from Harrison or testimony from any of the 100 inmates

that encircled Appellant and Harrison during the fight. After considering the

only evidence that the Commonwealth presented – Officer Johnson’s

testimony and Harrison’s medical records – the trial court stated on the

record, “What I am hearing is there a [sic] fight, I don’t know who started it.

I have no idea. I can’t say it is mutual combat . . . ” N.T., 1/16/14, at 20.

After a review of the evidence in the light most favorable to the

Commonwealth, we agree with Appellant that the Commonwealth failed to



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disprove beyond a reasonable doubt that Appellant acted in self-defense.

See, e.g., Torres, supra at 345 (concluding that the Commonwealth failed

to produce sufficient evidence to disprove claim of self-defense where the

evidence established that an altercation occurred between two individuals,

but the Commonwealth failed to present evidence about how the fight

started, a motive for using force other than self-defense, and physical

evidence to disprove self-defense).

      Because the Commonwealth failed to disprove that Appellant acted in

self-defense, there was not sufficient evidence to prove that Appellant had

the required mens rea of recklessness. Thus, the trial court should not have

found Appellant liable for REAP.

      We note that in support of its REAP finding, the trial court puts forth a

separate argument that Appellant was acting recklessly not only during the

fight, but also prior to the fight by possessing the shank and bringing it to a

fight in prison. Trial Court Opinion, filed 3/22/17, at 6. We disagree that

this analysis supports a finding of recklessness needed to prove REAP.

      A conviction for REAP requires the Commonwealth to prove the

achievement of a particular result, namely danger to another person of

death or serious bodily injury.    See Reynolds, supra at 727-28.        Actual

danger must be created, not merely “the apprehension of danger[.]”

Commonwealth v. Klein, 795 A.2d 424, 427 (Pa. Super. 2002) (citation

omitted). The mere possession of a shank prior to engaging in a fight does



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not present actual danger. In the instant case, danger was not created until

the fight began and, thus, Appellant’s pre-fight possession of a shank fails to

satisfy the necessary elements to prove REAP.

      Possessing an Instrument of Crime

      We next analyze Appellant’s conviction for PIC. Appellant once again

avers that the Commonwealth failed to disprove that Appellant acted in self-

defense, and argues that this negates Appellant’s criminal liability for the PIC

charge. Appellant’s Brief at 8.

      To sustain a conviction for PIC, the Commonwealth had to prove that

Appellant 1) possessed an instrument of crime, 2) with intent to employ it

criminally. See 18 Pa.C.S. § 907(a). Under the statute, an “instrument of

crime” is defined, in pertinent part, as “[a]nything specially made or

specially adapted for criminal use.” 18 Pa.C.S. § 907(d). While a fact-finder

can infer intent from the surrounding circumstances, intent cannot be

inferred from “mere possession of the weapon.” In re A.C., 763 A.2d 889,

891 (Pa. Super. 2000).       Further, a fact-finder cannot reasonably infer

criminal intent if a defendant used a weapon solely for self-defense.      Id.;

see also Commonwealth v. Watson, 431 A.2d 949, 953 (Pa. 1981)

(holding that criminal intent could not be inferred from the circumstances

surrounding appellant's possession of the gun which killed her husband

because appellant, having acted in self-defense, never used that gun to

commit a crime).



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      In its 1925(a) Opinion, the trial court does not focus on Appellant’s use

of the shank during the fight.             Rather, the trial court considers the

inherently criminal nature of Appellant’s pre-fight possession of the shank in

prison, regardless of whether he employed the shank during the fight. The

trial court opines:

      In review of the evidence, it is absolutely clear that Appellant is
      guilty of [PIC]. First, Appellant possessed a homemade knife or
      “shank.” Second, a shank in prison is inherently criminal and
      would be made for a criminal purpose. The very presence of
      such a weapon in a prison context is criminal. The possession of
      the weapon is a crime itself, and thus by merely possessing it
      you intend to use it criminally. You do not have a weapon in
      prison without the intent to use it criminally. The shank has no
      other purpose than to injure another.         An actor’s criminal
      purpose may be inferred from the circumstances surrounding the
      possession.

Trial Court Opinion, filed 3/22/16, at 5.

      A   review      of   the   record   in   the   light   most   favorable   to   the

Commonwealth, giving the Commonwealth all favorable inferences, supports

the trial court’s conclusion that Appellant’s pre-fight possession of a shank in

prison was sufficient evidence to convict Appellant of PIC.             While a fact-

finder cannot infer criminal intent from mere possession of a weapon, this is

a unique set of circumstances where Appellant is incarcerated and there is

no legal purpose to possess a weapon in prison.               We agree with the trial

court that possession of a weapon by a prisoner in prison is “inherently

criminal” and that the trial court could infer Appellant’s criminal intent from

the surrounding circumstances, namely that Appellant was incarcerated and



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possessed a weapon.       Id. at 5; see also In re A.C., supra at 891.

Accordingly, we find that the trial court did not abuse its discretion when it

convicted Appellant of PIC.

      In conclusion, we reverse Appellant’s conviction for REAP.     Because

vacating Appellant’s sentence for REAP may disrupt the trial court’s overall

sentencing scheme, we vacate his Judgment of Sentence in its entirety and

remand for resentencing. See Commonwealth v. Barton-Martin, 5 A.3d

363, 370 (Pa. Super. 2010) (providing that where vacating a sentence

disrupts a trial court’s overall sentencing scheme, this Court will remand to

the trial court for resentencing).

      Conviction for REAP reversed; conviction for PIC affirmed. Judgment

of Sentence vacated.       Matter remanded for resentencing.      Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/24/2017




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