J-A28024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ANTOINE LAMAR WILSON

                        Appellant                     No. 1 EDA 2015


        Appeal from the Judgment of Sentence December 3, 2014
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0015851-2013


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY PANELLA, J.                        FILED JANUARY 05, 2016

     Appellant, Antoine Lamar Wilson, appeals from the judgment of

sentence entered December 3, 2014, in the Court of Common Pleas of

Philadelphia County. We affirm.

     The trial court summarized the facts of this case as follows.

           On November 28, 2013, [Appellant’s] family members
     were celebrating Thanksgiving at … [Appellant’s] mother’s home
     in Philadelphia. [Appellant] went into the kitchen and began
     arguing with his sister, the complainant in this case, Atiya Wilson
     (“Ms. Wilson”). [Appellant] was upset that the mother of his
     children had been invited to Thanksgiving dinner. During this
     argument, [Appellant] told Ms. Wilson that he was “strapped.”
     He proceeded to pull a firearm from the waistband of his pants,
     point it at Ms. Wilson’s head, and threatened to kill her. He then
     pointed the gun toward the living room where other family
     members were present and threatened to kill the father of Ms.
     Wilson’s children.

            Ms. Wilson’s teenage son Talik Monsonto (“Mr. Monsonto”)
     testified that he first saw the firearm a few minutes before the
     argument started, when it slipped from the pocket of
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       [Appellant’s] pants. Once [Appellant] began making threats, Mr.
       Monsonto went into the living room to get other family
       members. Together they pushed [Appellant] out of the house.

             Moments later, [Appellant] reentered the house and
       returned to the kitchen. As he walked in, Ms. Wilson was in the
       process of calling the police. [Appellant] again pointed the
       firearm at Ms. Wilson and threatened to blow up the house if she
       made the call. Ms. Wilson dropped the phone and ducked to
       avoid the firearm’s aim. During this time, Ms. Wilson’s three-
       year-old daughter had come into the kitchen. After Ms. Wilson
       ducked, the firearm was pointed at the three-year-old. Family
       members were again able to safely get [Appellant] out of the
       house, this time locking the front door. Ms. Wilson called the
       police, who arrived approximately twenty minutes later.
       [Appellant] turned himself in to the police with his parole agent
       on December 5, 2013.

Trial Court Opinion, 3/17/15 at 2-3 (record citations omitted).

       Following a bench trial, Appellant was convicted of persons not to

possess firearms, firearms not to be carried without a license, carrying

firearms on the streets of Philadelphia, possession of an instrument of crime,

terroristic threats, simple assault, and recklessly endangering another

person (“REAP”).1 The trial court sentenced Appellant to six to twelve years

in prison, followed by ten years of probation. This timely appeal followed.

       On appeal, Appellant raises the following issues for our review.

       1. Was not the evidence insufficient to support appellant’s
          conviction for carrying a firearm without a license, 18 Pa. C.S.
          § 6106, insofar as the Commonwealth failed to prove that
          appellant carried a firearm either in a vehicle or concealed on
          or about his person?

____________________________________________


1
  18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6108, 907(a), 2706(a)(1),
2701(a), and 2705, respectively.



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      2. Was not the evidence insufficient to support appellant’s
         conviction for recklessly endangering another person, 18 Pa.
         C.S. § 2705, insofar as the Commonwealth failed to prove
         that appellant actually had the ability to inflict death or
         serious bodily injury?

Appellant’s Brief at 3.

      The following standard governs our review of a challenge to the

sufficiency of the evidence.

      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. 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.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. [T]he facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant's innocence. Any doubt about
      the defendant's guilt is to be resolved by the fact finder unless
      the evidence is so weak and inconclusive that, as a matter of
      law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(citation omitted).    “When reviewing for sufficiency of the evidence, an

appellate   court    may   not   substitute   its   judgment   for   the   jury’s.”

Commonwealth v. Mudrick, 507 A.2d 1212, 1213 (Pa. 1986) (citation

omitted). The factfinder, while passing upon the credibility of witnesses and

the weight of the evidence produced, is free to believe all, part or none of

the evidence.       Commonwealth v. Valentine, 101 A.3d 801, 805 (Pa.

Super. 2014). Furthermore, the Commonwealth may sustain its burden by




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means of wholly circumstantial evidence. See Commonwealth v. Diggs,

949 A.2d 873, 877 (Pa. 2008).

      Appellant first argues that the evidence was insufficient to sustain his

conviction of firearms not to be carried without a license because the

Commonwealth failed to prove that he carried a firearm either in a vehicle or

concealed on his person. We disagree.

      A person is guilty of the offense of carrying a firearm without a license

if he “carries a firearm in any vehicle or … carries a firearm concealed on or

about his person, except in his place of abode or fixed place of business,

without a valid and lawfully issued license….” 18 Pa.C.S.A. 6106(a)(1).

      At trial, Talik Monsonto testified that he first observed the firearm

Appellant carried on his person when it “fell out of his pocket … like it fell

down his pants.” N.T., Trial, 11/22/14 at 14. Atiya Wilson further testified

that, during the course of the argument, Appellant told her he was

“strapped” and that he later pulled the firearm out and pointed it at her

head. Id., at 23.

      It was certainly reasonable for the trial court to infer from this

testimony that, prior to revealing the weapon to Ms. Wilson and prior to the

moment the firearm fell from Appellant’s waistband, it was concealed on

Appellant’s person.    There is no evidence that the firearm was visible




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previously.     We therefore find the evidence was sufficient to sustain

Appellant’s conviction for firearms not to be carried without a license. 2

        Appellant next claims that the evidence was insufficient to support his

REAP conviction as the Commonwealth failed to establish that the firearm

was loaded or in working order. We again disagree.

        An individual commits the offense of REAP 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.A. § 2705.    Contrary to Appellant’s

assertion otherwise, the REAP statute does not require a loaded gun. A REAP

conviction will be sustained where the circumstances show that Appellant

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

ability to do so.” Commonwealth v. Cordoba, 902 A.2d 1280, 1288 (Pa.

2006).

        Herein, the circumstances reveal that Appellant not only informed Ms.

Wilson that he was strapped, but angrily pointed the firearm at the victim’s

head and threatened that he would “blow up [the] house” if she called the

police. N.T., Trial, 11/22/14 at 25. Appellant then proceeded to point the

gun towards the victim’s family and threatened to kill her children’s father as

well.    Id., at 24.   At this point, Appellant was forcibly removed from the



____________________________________________


2
  Appellant does not contend that he possessed a valid license to carry the
concealed firearm.



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residence, only to return and again point the firearm at the victim and her

three-year-old daughter. See id., at 28.

      We find that Appellant’s behavior—pointing the gun at the victim and

her family, combined with his threats to “blow up” the house and to kill her

children’s father—supported an inference that Appellant had the actual

ability to inflict harm.   See Commonwealth v. Rivera, 503 A.2d 11 (Pa.

Super. 1985) (en banc) (upholding REAP conviction where Commonwealth

did not prove the gun was loaded, but evidence established that Appellant

not only pointed gun at his victims but threatened and robbed them). This

claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




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