J-S57042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
             v.                            :
                                           :
ROBERT WRIGHT,                             :
                                           :
                   Appellant               :           No. 1734 EDA 2016

        Appeal from the Judgment of Sentence entered on April 15, 2016
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0013952-2014;
             CP-51-CR-0013953-2014; CP-51-CR-0013954-2014;
              CP-51-CR-0013955-2014; CP-51-CR-0013956-2014

BEFORE: PANELLA, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED NOVEMBER 15, 2017

        Robert Wright (“Wright”) appeals from the judgment of sentence

entered following his conviction of one count each of possession of a firearm

prohibited, firearms not to be carried without a license, carrying a firearm on

a public street in Philadelphia and possession of an instrument of crime, and

four counts of recklessly endangering another person.1 We affirm.

        In its Opinion, the trial court summarized the factual and procedural

history underlying the instant appeal. See Trial Court Opinion, 10/3/16, at

1-3.    We adopt the trial court’s recitation for the purpose of this appeal.

See id.

        Wright presents the following claims for our review:

        [1.] With respect to the charges of carrying a firearm without a
        license, persons not to possess firearms, and carrying a firearm


1   See 18 Pa.C.S.A. §§ 6105, 6106, 6108, 907, 2705.
J-S57042-17


      [on a public street] in Philadelphia, was the verdict against the
      weight of the evidence and so contrary to the evidence that it
      shocks one’s sense of justice where[]

     a) the Commonwealth’s evidence at trial consisted of no
        physical, forensic, or scientific evidence establishing
        [Wright’s] possession or use of a firearm guilt;

     b) no firearm or evidence related to a firearm was recovered
        from [Wright,] or discovered during an unannounced search
        of [Wright’s] home; and

     c) [Wright] testified credibly at trial that he did not possess a
        firearm?

      [2.] With respect to the [four counts] of recklessly endangering
      another person …, was the verdict [] against the weight of the
      evidence and so contrary to the evidence that it shocks one’s
      sense of justice where[]

        a) the Commonwealth’s evidence at trial consisted of no
           physical, forensic, or scientific evidence establishing
           [Wright’s] possession or use of a firearm guilt;

        b) no firearm or evidence related to a firearm[,] as
           recovered from [Wright] or discovered during an
           unannounced search of [Wright’s] home;

        c) [Wright] testified credibly at trial that he did not possess
           a firearm; and[]

        d) assuming arguendo that the weight of the evidence
           indicates that no firearm was used by [Wright] during
           the alleged incident, no one was placed in danger of
           death or serious bodily injury[,] as required to sustain a
           conviction for [violating 18 Pa.C.S.A.] § 2705?

Brief for Appellant at 6.

      In the Argument section of his brief, Wright addresses his two claims

together.   Wright challenges his convictions as against the weight of the

evidence, because “there is no forensic evidence whatsoever linking [him] to


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J-S57042-17

a gun.”   Id. at 22.   Wright asserts that there was no ballistics evidence

recovered from the scene, despite a thorough search by police officers, “who

arrived at the scene within minutes.”    Id.   Wright directs our attention to

testimony that there was no projectile found within the tire, nor an exit hole

indicating that a projectile exited the tire. Id. at 23. Wright further directs

our attention to the testimony that “everything was damaged” regarding the

damage to the tire and fender surrounding that portion of the car. Id. at

24.   Further, Wright states that Keona Henderson testified regarding the

loud “boom” she heard as the car drove up over a curb. Id. at 24-25.

      Wright additionally argues that the testimony regarding his possession

of a firearm is similarly vague, as Kendra Forrest (“Forrest”) testified that

she saw “what appeared to be the butt or bottom of a gun in [Wright’s]

hand, but she could not describe the gun.” Id. at 25. According to Wright,

Forrest could not tell if the object was a revolver or a semiautomatic gun.

Id. Wright directs our attention to Forrest’s testimony that she did not see a

gun in Wright’s hand when he ran in front of her car, moments before

breaking the window. Id. Wright asserts that “[t]he ‘gun free’ scenario in

which [] Forrest hit a curb causing a flat tire as she sped away from the

scene where Wright broke her window, comports with the physical evidence

observed by police, the testimony of the Commonwealth’s civilian witnesses,

and the testimony of both defense witnesses.”         Id. at 26.    For these




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J-S57042-17

reasons, Wright contends that the trial court’s conclusion that he possessed

a gun “appears flawed.” Id. at 27.

      In its Opinion, the trial court addressed Wright’s challenge to the

verdict as against the weight of the evidence, and concluded that it lacks

merit. See Trial Court Opinion, 10/3/16, at 3-7. We agree with the sound

reasoning of the trial court, as set forth in its Opinion, and discern no error

or abuse of discretion in this regard. See id. We therefore affirm on the

basis of the trial court’s Opinion with regard to Wright’s claims. See id.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/15/2017




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                                                                                                               FILED
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                                                                                                                 OCT - 3 2016
                                             I
                                          Ii\{ THE COURT OF COMMON
                                                                PLEAS          Criminal Appeals Unit
                                 FIRST J]UDICIAL DISTRICT OF PENNSYL v ANIA First Judicial District of PA
                                     TRIAL DIVISION-CRIMINAL SECTION
                                              I
     COMMONWEALTH OF JiENNSYLV ANIA                                              : PIDLADELPIDA COURT
                                                                                 : OF COMMON PLEAS
                                              I                                  : CRIMINAL TRIAL DIVISION

                                    v.                                           :   CP-Sl-CR-0013952-2014                                 I
                                                                                 :   CP·Sl-CR-0013953-2014                                 i
                                              I                                  :   CP-51-CR;.0013954-2014
     ROBERT WRIGHT
                                                  I
                                                                                 :
                                                                                 :
                                                                                     CP-51-CR-0013955-2014
                                                                                     CP-Sl·CR-0013956·2014                                 I
                                                                                                                                           I
       CP-51-CR-0013952-2014 Comm. V. Wright, fobert
                          Opinion             i



                       I I 11111 II1111111i
              1111 HI7886059911
                                                                          OPINION
                                                                                                                                           I
     MCCAFFERY,J                                      I
                                                      I                                                                                    l
               Robert Wright (hereinafter "Appellant") has filed an appeal from the order issued by this
                                                      I
     Court on April 15, 2016, imposing judgment of sentence. For the reasons set forth below it is
                                                                                                                                           I
                                                      I
     suggested that the said order ~e affirmed.

     PROCEDURAL IDSTORYI
                                                          I

                                                          !

                                                          i
               On February 10, 2016\ following a waiver trial, Appellant was found guilty of numerous
                                                                                                                                           I
     crimes under the above Bill and Term Numbers. On CP-51-CR-0013952-2014, he was found
                                                          I
                                                                                                                                           II
     guilty of Possession of a Fuleann Prohibited, 18 Pa.C.S § 6105, Firearms not to be Carried
          .                                                   I
     Without a License, 18 Pa.c.sl § 6106, Carrying a Firearm on a Public Street, 18 Pa.C.S § 6108,
                                                              i
     Possessing an Instrument of :crime Generally, 18 Pa.C.S § 907, and Recklessly Endangering
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                                                                                                                                               II
     Another Person (REAP), 18 ija.C.S § 2705. On CP-51-CR-0013953-2014, CP-51-CR-0013954-
                                                                  1

     2014, and CP-51-CR-001395J°2014, he was found guilty of single counts of REAP on each Bill                                                I
     of Information. Finally, on cr-51-CR-0013956-2014, he was convicted of Simple Assault, 18                                                 I
     Pa.C.S § 2701, and REAP. O~ April 15, 2016, this Court imposed an aggregate sentence of five
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                                                                                                                                               j




                                                                  I          I


                                                                      I
to eleven years' incarceratf n. (N.T. 4/15/16, 31).                   Following the imposition of sentence,

Appellant filed a post-sente ce motion, which this Court denied on May 19, 2016. Appellant

thereafter filed a timely ap eal and a court-ordered Pa.R.A.P 1925(b) Statement of Matters

                                      hallenging the weight of the evidence.

FACTUAL HISTORY

         On October 18, 2014, during the early evening, Ms. Kendra Forrest attended a party at a

friend's house located at 151, East Cayuga Street in Northeast Philadelphia. (N.T. 2/10/16, 9-

10, 19). When the party wa ending, two women got into an argument outside the property.

(N.T. 2/10/16, 13-15), Ms. F rrest, her two children, another child, and a man named Terrell

Cartwright, who at some po· t, while the other argument was taking place, had gotten into an

argument with Appellant, cli bed into Ms. Forrest's car, who began driving home. (N.T.

2/10/16, 15, 90): 1 Before the left, Appellant began threatening to slap everyone there. (N.T.                       I
2/10/16, 17).
                                                                                                                     I
         As Ms. Porrest was riving away, Appellant ran toward her car holding a gun she

believed to be a revolver. (N. i • 2/10/16, 18, 22, 33).2 When he reached the car he smashed the                     I
front passenger window, whic showered everyone in the car with glass, after which Ms. Forrest
                                                                                                                     I
                                                                                                                     I
heard a "pow." (N.T. 2/10/16 18, 25).3 Terrell was sitting in the passenger seat and had to go to
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                                                                                                                     J
a hospital because he suffered uts from the broken glass. (N.T. 2/10/16, 23). Ms. Forrest drove                      II
a short distance away and cont cted the police. (N.T. 2/10/16, 22). She later was interviewed by
                                                                                                                     I
police and told them what App Hant had done to her car. (N.T. 2/10/16, 22).                                          I
                                                                                                                     J
                                                                                                                     II

I
  Terrell died after the incident; his d th was unrelated to the instant matter.
2
  Ms. Forrest indicated that she saw e handle of the gun. (N.T. 2/10/16, 21,41).
3
  Ms. Forrest later ascertained that a t eon her car had been flattened and Police collected the tire as evidence.
(N.T. 2/10/16, 9-lO).

                                                            2
            Ms. Keona Henderso , Ms. Forrest's daughter, also attended the party and witnessed the

argument between Appellan               and Terrell that started after Appellant threatened to "smack"

everyone.       (N.T. 2/10/16, 4 -51). After her mother began driving away, Ms. Henderson saw

Appellant retrieve something from under a car and run toward Ms. Forrest's car. (N.T. 2/10/16,

51). Terrell then began yellin at Appellant, who ran up to the car and smashed the window with

what Ms. Henderson believ d to be a gun. (N.T. 2/10116, 52).4 Ms. Henderson then saw

Appellant shoot at a tire on          e car. (N.T. 2/10/16, 52). The glass from the window sprayed all

over everyone in the car. (N ..         2/10/16, 53).

           Police investigation o the car and tire, which was flat, did not result in the recovery of a

spent projectile, a gun, or o          r ballistic evidence. (N.T. 2/10/l6, 64 ). The car, however, was

full of glass. (N.T. 2/10/16, 6 -66, 71).

           Appellant testified in i own defense. Although he admitted breaking the glass on the car

with the palm of his hand, he enied possessing a gun and said that he did not expect the glass to

break. (N.T. 2/10/16, 113-11 , 118). Appellant testified that he smacked the car because Terrell

angered him by threatening to return and get him.              (N.T. 2/10/16, 113).

           He also presented the estimony of his grandfather, Frederick Cartwright. Mr. Cartwright

testified that Appellant was _n t in possession of a gun during the incident, did not shoot at the

tire, and broke the window on the car with his hand. (N.T. 2/10/16, 93, 95-96).

           Appellant fled the see e before the police arrived. (N.T. 2/10/16, 93, 114-115).


DISCUSSION

           In his 1925(b) stateme t, Appellant argues that the verdicts were against the weight of the

evidence. Specifically, with r spect to the three convictions under the Uniform Firearms Act, he


4
    Ms. Henderson stated that she saw e bottom or handle of the gun. (N.T. 2/ I0/16. 52, 56).

                                                           3
contends   that the guilty verdicts shock the conscience because the Commonwealth           did not

recover a firearm from Appellant's    person or during a search of his home or find any physical

evidence that Appellant possessed or used a gun or present any scientific evidence that Appellant

possessed a firearm;. He also 'argues that he testified credibly that he did not possess a firearm.

Regarding his convictions forlREAP, he submits that the verdicts shock the conscience for the

same three reasons set forth inlhis first claim. He further argues that "assuming that the weight of

the evidence indicates that   no firearm   was used by [Appellant] during the alleged incident, no

one was placed in danger of death or serious bodily injury as required to sustain a conviction for

[18 Pa.C.S.] § 2705.

       The standard in reviewing a weight of the evidence claim is well-settled:

               Appellate review of a weight claim is a review of the exercise of
               discretion, not of the underlying question of whether the verdict is
               against the weight of the evidence. Because the trial judge has had
               the opportunity to hear and see the evidence presented, an
               appellate court will give the gravest consideration to the findings
               and reasons advanced by the trial judge when reviewing a trial
               court's determination that the verdict is against the weight of the
               evidence. One i of the least assailable reasons for granting or
               denying a new trial is the lower court's convict ion that the verdict
               was or was notl against the weight of the evidence and that a new
               trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A,.3d 1049, 1055 (Pa. 2013) (emphasis and citations omitted); see

also Commonwealth v. Sanchez, 36 .3d 24, 27 (Pa. 2011) (stating that "[rjelief on a weight of the

evidence claim is reserved for extraordinary circumstances, when the jury's verdict is so contrary

to the evidence as to shock one's sense of justice and the award of a new trial is imperative so

that right may be given another opportunity to prevail." (citation omitted)).

       The initial determination regarding the weight of the evidence is for the fact-finder.

Commonwealth v. Jarowecki, i 923 A.2d 425, 433 (Pa. Super. 2007). The trier of fact is free to



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believe all, some or none of the evidence. Id. A reviewing court is not permitted to substitute its
                                                                                                        I
judgment for that of the fact-finder, Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999).              IJ ..
When the challenge to the !weight of the evidence is predicated on the credibility of trial              lI
testimony, appellate review of a trial court's decision is extremely limited. Unless the evidence is    !
so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, weight
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                                                                                                        !
                                                                                                        f
of evidence claims shall be ~ejected. Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa.
                                                                                                        r
Super. 2004).                                                                                           I
       Instantly, this Court d~termined that Appellant's weapons convictions did not shock the

conscience because this Court found the testimony of the Commonwealth's fact witnesses

credible and Appellant's to
                               !
                              be self-serving and not   truthful especially with respect to his claim   I
that he broke the window with the palm of his hand. Both complainants presented similar
                             '
testimony that they observed lthe bottom or handle of a gun in Appellant's hand, which he used
                                                                                                        Ii
to smash the front passenger window of the complainants' car and that they then heard a pop and

experienced a flat tire. Ms. Henderson added that she saw Appe11ant fire the weapon. Evidence

that the window had been smashed
                            ;
                                 and the tire flattened was introduced at trial.

       The lack of physical evidence that a gun was used in this case and the fact that no gun
                                   ;

was found in Appellant's possession was considered by this Court. However, the absence of

such evidence did not render the verdicts shocking to the conscience because Appellant fled the

scene after the incident and there was no other plausible reason why the window shattered or the
                                       .                                              .
tire flattened. Thus, it is submitted that it simply cannot be said that this Court's determinations

here were shocking. See Commonwealth v. That], 830 A.2d at 528 (trial court did not abuse its

discretion in denying relief onl weight claim where "issue was ultimately one of credibility" and
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"the jury obviously chose to i credit the Commonwealth's evidence and to reject the defense


                                                 5
theory of the case"); Gibsori, 720 A.2d at 480-81 (appellant's weight claim failed where he
                                !



asserted verdict was based on contradictory and unreliable testimony, as these issues were fully

explored at trial and jury credited testimony of Commonwealth        witnesses); Commonwealth v.

Lyons, 833 A.2d 245, 259 (Pa.Super, 2003) "Where issues of credibility and weight of the
                                i
                                i

evidence are concerned, it isj not the function of the appellate court to substitute its judgment

based on a cold record for that of the Oury]") (citation omitted). Accordingly, it is respectfully

suggested that Appellant's claim with respect to this issue be deemed lacking in merit.

        With regard to Appellant' s second weight claim, it is suggested that no relief is due

because this Court did find that Appellant possessed and used a gun despite the lack of any

corroborative evidence based pn the credible testimony of the two complainants and the rejection

of Appellant's   testimony.   Thus, the fourth reason submitted by Appellant as to why the REAP

convictions were against the weight of the evidence should be found not to entitle Appellant to
                                    '
relief because this Court did f~nd that Appellant possessed a firearm during the incident.
                                    i
                                    i

        It is noted that even h~d this Court determined that Appellant did not possess a firearm

during the incident, the REAf convictions would not have shocked the conscience. A person

recklessly endangers another [person when he "recklessly engages in conduct which places or

may place another person in danger of death or serious bodily injury." 18 Pa.C.S.A. § 2705. This

offense requires proof for four elements: "1) a mens rea recklessness, (2) an actus reus some

'conduct,' (3) causation 'which places,' and (4) the achievement of a particular result 'danger,'
                                    I




to another person, of death or serious bodily injury." Commonwealth v. Reynolds, 835 A.2d 720,

727 (Pa.Super, 2003) (citing Commonwealth        v. Trowbridge, 395 A.2d 1337, 1340 (Pa.Super.

1978)). Since the crime of REAP "is a crime of assault which requires the 'creation of danger' ",
                                    ;
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                                    i




                                                 6
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"there must be an 'actual present ability to inflict harm,' "Commonwealth

11, 12 (Pa.Super. 1985). See also Trowbridge, 395 A.2d at 1340.
                                                                              v. Rivera, 503 A.2d
                                                                                                     I
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                                                                                                     1·
        Appellant, by smacking the window of a moving car occupied with five persons with a
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force sufficient to shatter the.'window, manifested the reckless intent necessary to make out the
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crime. Appellant's act also exposed those in the car to death or serious bodily injury because the

driver could have lost control of the vehicle and crashed. Therefore, for all of the foregoing

reasons, Appellant should be denied relief with respect to this claim.

CONCLUSION
                              j

        Based on the foregoing, the order imposing judgment of sentence should be affirmed.
                              '
                                                             BY THE COURT,



Date:   frJ/~/Jo/&




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                                 CERTIFICATION OF SERVICE

        I, James Molinari, Esqbre, Law clerk to the Honorable Daniel D. Mccaffery hereby
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                                            {j~ 7       , 2016, by first class mail, postage prepaid, a
certifies that on the   ] /7.t,:; tday of
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true and correct copy of the attached opinion was served upon the following:


James R. Lloyd, Esquire
One Penn Center-Suite 999                                                                                 I
1617 JFK Blvd.
Philadelphia, PA 19103                                                                                    I
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                                                                                                          [


Hugh Burns, Esquire
                                                                                                          I
Chief-Appeals Unit
Office of the Philadelphia
District Attorney
Three South Penn Square
Philadelphia, PA 19107




                                                                  James Molinari, Esquire
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