Com. v. Shaw, A. , 203 A.3d 281 ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARTURO SHAW, :
:
Appellant. : No. 3945 EDA 2017
Appeal from the Judgment of Sentence, December 1, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0013005-2015.
BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 15, 2019
Arturo Shaw appeals the judgment of sentence imposed following his
convictions for a firearm violation, possession of an instrument of crime, and
recklessly endangering another person.1 We affirm.
The trial court summarized the pertinent facts as follows:
On July 20, 2017, a [bench] trial was held before this
court. [C.B.] testified that around 12:00 a.m. on November
18, 2015 she was in her car near her house on 57 th Street
and Girard Avenue in Philadelphia. As [C.B.] pulled up to
her house, she saw on her left side about fifteen (15) to
twenty (20) feet away [Shaw] on the porch of his row home
talking loudly to himself with one of his arms extended
upward above his head into the air. Fearing for her safety,
[C.B.] quickly got out of her vehicle and ducked behind the
driver’s side of her vehicle waiting for an opportunity to run
to the front of her house. Simultaneously, she then heard
a gunshot and observed a small flash of light emerge from
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1 18 Pa.C.S.A. §§ 6105, 907, and 2705.
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around the hand area of [Shaw’s] extended arm. After the
gunshot she heard something fall straight down or bounce
off of another object. At the point she felt secure enough,
she ran to her house for safety and called the police. The
whole encounter lasted approximately two (2) minutes.
[C.B.] lived at her house since 2009, knowing neighbors
by their faces but not personally. She recognized [Shaw]
from seeing him one or twice a month as her next-door
neighbor. She was also familiar with the sound of a gunshot
from a handgun based on past experience. [C.B.] later gave
a statement to Detective Maurizio of the Philadelphia Police
and identified her location and [Shaw’s] location from a
Google Map photograph. [C.B.] also positively identified
[Shaw] from a photograph presented to her by Detective
Maurizio at 2:30 a.m. after the incident.
On November 19, 2015 at 7:15 a.m., Detective Maurizio
executed a search warrant at [Shaw’s] residence at 1244
North 57th Street and recovered the following: a box labeled
.45 auto, containing 20 live rounds; a box labeled .38
special, containing 32 live rounds; two labeled 12-gauge
sluggers, containing 5 live rounds each; two live rounds
stamped 12 gauge; one fired cartridge casing stamped .38
special; and a black BB gun ASG Model CZ75D. The BB gun
recovered was operable and resembled a CZ75D
semiautomatic pistol. [Shaw] did not possess a license to
be in possession of the firearm and a previous conviction for
involuntary manslaughter made him ineligible to possess
any firearm.
Following his arrest and while incarcerated, [Shaw] sent
several letters to [C.B.] In the letters, [Shaw] apologized
to her for the incident and purported that he had become
aware that the Defender Association of Philadelphia was
petitioning for her arrest and attached false supporting
documents. One of these supporting documents was a
forged Defender Association memorandum that called for
[C.B.] to be arrested for both perjury and falsely reporting
information to law enforcement authorities. Copies of the
Philadelphia Police Department’s arrest memorandum and
investigation report, as well as the notes of testimony from
the preliminary hearing, were attached to the letter with
handwritten notes claiming inconsistencies in [C.B.’s]
statements. Several Pennsylvania criminal statutes and
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sections of the Pennsylvania Rules of Criminal Procedure
were also attached to the letter in [an] attempt to lend it an
appearance of authenticity.
[Shaw’s] nine telephone calls from prison while awaiting
trial [as well the transcripts thereof were admitted at trial].
On the calls between [Shaw] and his sister from February
10 thru February 18, 2016, he appears to discuss the idea
of offering money to [C.B.] to persuade her not to show up
to testify at trial. On a series of calls from February 14,
2016 to February 15, 2016, [Shaw] also spoke with his
sister about retrieving a hidden item, presumably a weapon,
to evade its discovery from the police.
Trial Court Opinion, 3/19/18, at 1-4 (citations, footnote, and references to
trial exhibits omitted).
Based on this evidence, the trial court found Shaw guilty of the above
charges. On December 1, 2017, the court sentenced Shaw to an aggregate
term of three to six years of imprisonment. This appeal timely followed. Both
Shaw and the trial court have complied with Pa.R.A.P. 1925.
Shaw raises the following issue on appeal:
Is the evidence of record insufficient as a matter of law to
convict Shaw of recklessly endangering another person, 18
Pa.C.S.A. § 2705, because: (1) the only weapon recovered
by police was a BB gun, (2) Shaw never aimed any BB gun
or other instrument at C.B. or any other person, and (3)
there was no damage observed in the porch roof where a
projectile would have been discharged had Shaw been firing
a firearm as opposed to a BB gun?
See Shaw’s Brief at 5.
A claim challenging the sufficiency of evidence is a question of law, and
as such the standard of review is de novo and the scope of review is plenary.
Commonwealth v. Weimer, 977 A.2d 1103, 1104-05 (Pa. 2009).
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When this Court reviews a challenge to the sufficiency of evidence, we
must determine whether the evidence admitted at trial, and all reasonable
inferences drawn therefrom, when viewed in the light most favorable to the
Commonwealth as verdict winner, was sufficient to prove every element of
the offense beyond a reasonable doubt. Commonwealth v. Wise, 171 A.3d
784, 790 (Pa. Super. 2017). Where there is sufficient evidence to allow the
trier of fact to find every element of the crime has been established beyond a
reasonable doubt, a challenge to the sufficiency of the evidence fails.
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa. Super. 2016).
The evidence established by the Commonwealth at trial need not
preclude every possibility of innocence, and the finder of fact is free to believe
all, part, or none of the evidence presented. Id. It is not within this Court’s
authority to re-weigh the evidence presented and substitute our own
judgment over that of the fact finder. Id. Moreover, the Commonwealth may
sustain its burden of proof by wholly circumstantial evidence.
Commonwealth v. Wise, 171 A.3d 784, 790 (Pa. Super. 2017).
Finally, “a solitary witness’s testimony may establish every element of
a crime, assuming that it speaks to each element, directly and/or by rational
inference.” Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa. Super.
2018) (emphasis omitted).
“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
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death or serious bodily injury.” 18 Pa.C.S.A. § 2705. “Serious bodily injury”
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.” 18 Pa.C.S.A. § 2301.
Reckless endangerment of another person (“REAP”) requires the
creation of danger, so the Commonwealth must prove the existence of an
actual present ability to inflict harm to another. Commonwealth v.
Reynolds, 835 A.2d 720, 727-28 (Pa. Super. 2003). This Court has held that
both a handgun and a BB gun are capable of causing serious bodily injury or
death. Commonwealth v. Peer, 684 A.2d 1077, 1081 (Pa. Super. 1996);
Commonwealth v. Ramos, 920 A.2d 1253, 1257 (Pa. Super. 2007).
However, the mere act of discharging a firearm does not on its own constitute
recklessly endangering another person. See Commonwealth v. Kamenar,
516 A.2d 770 (Pa. Super. 1986) (finding evidence insufficient to support
conviction where the accused fired a single gunshot away from the direction
of other people, into a wooded hillside behind his home); Commonwealth v.
Smith, 447 A.2d 282 (Pa. Super 1982) (finding evidence insufficient where
no evidence indicated that the rifle was fired at the witness, and it was just as
likely that the accused safely fired the rifle into the air). However, discharging
a firearm near another person is sufficient to support such a conviction.
Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009).
To support his sufficiency challenge, Shaw references the fact that C.B.’s
testimony was equivocal as to whether he had a handgun or BB gun in his
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hand. Moreover, he argues that “[r]egardless of the item employed, there is
no dispute that the hand holding an object was pointed straight up over [his]
head” and that he “never pointed his hand or object toward [C.B.] or anyone
else.” Shaw’s Brief at 14. In addition, he asserts that C.B. did not testify
as to any damage to the porch consistent with a handgun being fired and the
police did not note any such damage when they executed the search warrant
at Shaw’s house. Given these facts, Shaw asserts that this Court’s prior
decisions in Kamenar, supra, and Smith, supra “are both apposite and
controlling.” Shaw’s Brief at 15. As in those cases, Shaw contends that the
evidence presented by the Commonwealth in his case was insufficient to
support his REAP conviction. We disagree.
The trial court found that the evidence presented by the Commonwealth
was similar to the facts of Hartzell, supra, a case in which this Court found
sufficient evidence to support the REAP conviction. The trial court explained:
In Hartzell, a defendant placed two men in danger by
discharging his firearm toward a creek near a bridge from
approximately ninety (90) feet away, approximately
twenty-five (25) to thirty (30) feet away from the men’s
location on the bridge. While the defendant did not aim his
firearm directly at the two men, the Superior Court found
that since the water was shallow and there were rocks in the
stream, it was hardly inconceivable that a bullet fired into
the nearby stream could have struck a rock or other object
and deflected up and hit one of them. The Court found that
the actual discharging of a firearm in the vicinity of others
constituted a sufficient danger of death or serious bodily
injury to satisfy the statute of [REAP]. As for the mens rea
of a conscious disregard of a known risk, the defendant’s
purposeful shot into the water and awareness of the men on
the bridge were more than enough to satisfy the needed
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mental state. Therefore, the Court held that the evidence
was sufficient to find the defendant guilty of [REAP].
Here, [Shaw] discharged a firearm in close proximity to
[C.B.], only fifteen (15) to twenty (20) feet away. While
[Shaw] did not directly aim the firearm at [C.B.], he did
discharge it above his head into the air, creating a risk of
causing serious bodily injury under the same reasoning
applied in Hartzell. The police recovered from [Shaw’s]
residence a substantial amount of ammunition for shotguns,
handguns, and BB guns. It is of particular note that among
the ammunition recovered in [Shaw’s] home was a single
fired cartridge casing stamped .38 special, which is primarily
used in handguns. [C.B.] was unable to precisely identify
the type of firearm utilized by [Shaw] but she believed the
sound of its discharge to be the same from gunshots she
had heard before. The recovered single fired cartridge
casing and [C.B.’s] description of the gunshot sound and
observed flash are strong circumstantial evidence that Shaw
discharged a firearm.
Trial Court Opinion, 3/19/18, at 7-8 (citations omitted).
The trial court further rejected the significance Shaw gave to the fact an
actual gun was never recovered, the fact that C.B. could not identify the
weapon used, and that Shaw never aimed a gun directly at her:
The search of [Shaw’s] residence was executed seven (7)
hours after the time of the incident, allowing ample time for
[Shaw] to remove any handguns from his residence. During
[Shaw’s] pre-trial incarceration in a recorded phone call, he
also discussed with his sister about retrieving a weapon he
had previously hidden, presumably a handgun. It is of no
question either that a handgun is capable of causing serious
bodily injury or death to allow for a conviction of [REAP].
However, [Shaw’s] argument on appeal frames it as if the
only firearm that should be considered is the recovered BB
gun. But even within that framework, [Shaw’s] argument
does not pass muster.
The metallic ball projectile shot from the BB gun could
have also easily caused serious bodily harm to [C.B.] The
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BB gun recovered [from Shaw] was an ASG Model CZ75D,
a spring-type gun capable of reaching a velocity of 207 feet
per second (fps). At a minimum of approximately 197, fps,
a BB gun can penetrate the cranium, fracture bones and
permanently damage eyes. The discharged metallic ball
could have feasibly struck [C.B.] or any other innocent
bystander on its way back down to the ground or caused
another object to fall onto her. [C.B] specifically testified
that she heard something fall straight down or bounce off of
another object immediately after [Shaw] discharged his
firearm. Moreover, [Shaw] not only recklessly endangered
[C.B], but also other occupants of his own row home and
those in the immediate area. [Shaw’s] argument on appeal
that he never specifically aimed his firearm at another
person or in their general direction is of no consequence
given the overall facts—his vicinity to [C.B.] and other in an
urban residential area caused a sufficient danger of serious
bodily injury as in Hartzell.
Trial Court Opinion, 3/19/18, at 8-9 (citations and footnotes omitted).
Finally, the trial court found that the Commonwealth established the
requisite mens rea to support Shaw’s REAP conviction:
As it regards the conscious disregard of a known risk,
[Shaw’s] deliberate shot from his firearm in a residential
neighborhood fulfills the awareness requirement. [C.B] was
within twenty (20) feet of [Shaw] during most of the
encounter. In addition, [Shaw] shared his row home with
several other people in an urban residential neighborhood
and, therefore, would have reasonably known others were
likely nearby inside or outside of their homes. Furthermore,
[Shaw’s] letters to [C.B.] expressing regret for his actions,
hastily forged documents to pressure her not to appear at
trial, and [Shaw’s] discussions on prison calls demonstrate
a recognition of risk and guilt. Therefore, the evidence was
sufficient to find [Shaw] guilty of [REAP].
Id. at 9.
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Our review of the record supports the trial court’s conclusions.
Moreover, given these conclusions, Shaw’s reliance upon this Court’s previous
decisions in Kamenar and Smith is misplaced. First, in both of those cases,
there was no evidence that any person was in actual danger of being injured
or killed by the gunshot. In Kamenar the gun was fired into a deserted
wooded hillside, and in Smith no evidence indicated that the gun was fired in
a direction that would not endanger the only witness. Here, Shaw fired a
handgun into his porch ceiling with a witness mere feet away. Like in
Hartzell, Shaw’s actions recklessly endangered another person because it is
possible that the shot could have ricocheted off the porch ceiling toward C.B.
as she hid behind her car, creating a risk of serious bodily harm.
Moreover, as noted by the trial court, even if the shot had come from a
BB gun, C.B. was still in danger of serious bodily harm. Although the trial
court characterized Shaw as discharging his weapon “in the air,” he did not do
so toward from a distance or into the sky above: rather Shaw discharged his
weapon into the ceiling of his porch in an urban residential area. He was in
close vicinity to both C.B. and other people who lived in nearby row homes.
It is feasible that the projectile could have struck C.B. or another person.2
Like in Hartzell, this created a sufficient danger of serious bodily injury.
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2 While we only discuss the BB gun, circumstantial evidence indicates an actual
firearm may have been used on the night in question. Our analysis would be
the same. Ramos, supra; Trial Court Opinion, 3/19/18, at 7-8.
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We find that the Commonwealth proved beyond a reasonable doubt that
Shaw engaged in conduct that placed another in danger of death or serious
bodily injury. It is not within our province to re-weigh the facts found by the
trial court as finder of fact. Rodriguez, supra.3 It is our job to determine
whether each element was established beyond a reasonable doubt based on
the evidence found by the trial court, and as such we find that the evidence
was sufficient to sustain Shaw’s conviction for recklessly endangering another
person.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/19
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3 Shaw’s claim that the Commonwealth failed to introduce evidence of damage
to the porch’s ceiling involves the weight the trial court assigned the evidence
presented by the Commonwealth, not its sufficiency.
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