J-A13008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GREGORY EDWARDS                            :
                                               :
                      Appellant                :   No. 158 EDA 2016

           Appeal from the Judgment of Sentence November 30, 2015
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002593-2015


BEFORE:       LAZARUS, J., OTT, J., and FITZGERALD,* J.

CONCURRING AND DISSENTING STATEMENT BY FITZGERALD, J.:

FILED OCTOBER 23, 2017

         I agree with the majority’s disposition of Appellant’s challenges to the

sufficiency of the evidence for simple assault, terroristic threats, and

possessing an instrument of crime. However, I respectfully differ from the

majority’s conclusion that there was sufficient evidence to sustain the

conviction for recklessly endangering another person (“REAP”).1 In my view,

Appellant did not achieve a present ability to risk serious bodily injury to the

loss prevention officer or others based on his possession of a concealed

knife.


____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. § 2705.
J-A13008-17



      Section 2705 of the Crimes Code states: “A person commits a

misdemeanor of the second degree 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.      A conviction for reckless endangerment

requires “the Commonwealth . . . 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.”

Commonwealth v. Cianci, 130 A.3d 780, 782 (Pa. Super. 2015) (citation

and quotation marks omitted).     The actual harm or danger must relate to

serious bodily injury, which “is defined 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.’”   Commonwealth v. Martuscelli, 54 A.3d 940, 949 (Pa. Super.

2012) (discussing 18 Pa.C.S. §§ 2301, 2705).

      Instantly, it is undisputed that throughout his altercation with the store

manager and the loss prevention officer, Appellant possessed a concealed

knife and threatened that he had a needle and was HIV-positive. However,

it was not until Appellant was wrestled to the ground that Appellant stated

he had a knife.   The loss prevention officer was able to disarm Appellant

without an additional struggle over the knife. Accordingly, I find the cases

discussed by the majority distinguishable and would vacate Appellant’s

conviction for REAP. See Commonwealth v. Rahman, 75 A.3d 497, 502-

03 (Pa. Super. 2013) (affirming conviction for REAP, when the defendant’s

                                     -2-
J-A13008-17



aggression against a police officer could have caused the officer to fall down

stairs near the edge of a balcony); Commonwealth v. Mitchell, 554 A.2d

542, 548 (Pa. Super. 1989) (affirming conviction for REAP when the

defendant’s struggle over a police officer’s firearm, could have caused the

firearm to discharge).

      Thus, I dissent from the majority’s decision to affirm the REAP

conviction.




                                    -3-
