Com. v. Donnelly, D. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL DONNELLY,
Appellant No. 1130 EDA 2013
Appeal from the Judgment of Sentence November 1, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003874-2012
BEFORE: BOWES, SHOGAN, and OTT, JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 16, 2014
Daniel Donnelly appeals from the judgment of sentence of eleven and
one-half to twenty-three months imprisonment followed by one year of
probation that the trial court imposed after it convicted Appellant of theft,
receiving stolen property, terroristic threats, and recklessly endangering
was insufficient to support his conviction for receiving stolen property, but
agree that it was insufficient to sustain the offense of REAP. We therefore
affirm in part and reverse in part and remand for re-sentencing.
-year-old
victim, N.S. At approximately 8:30 p.m. on March 8, 2012, N.S. left a café
on the 3700 block of Midvale Avenue, Philadelphia. He encountered
Appellant, Jimmy Gibbs, Eddie Gibbs, and Shawn Breck. The victim knew
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the four individuals, all of whom began to follow N.S. as he walked down
Midvale Avenue. Eddie Gibbs grabbed the victim, and Appellant, who was
twenty-
surrounded the victim. After Jimmy Gibbs punched N.S., he surrendered his
cell phone and Ipod. As N.S., whose glasses broke as a result of the punch,
began to walk away from the assault, Appellant approached him and said
that if the victim mentioned his name, he would kill him. Id. at 25. When
N.S. returned home, his mother telephoned police.
In this appeal from the judgment of sentence, Appellant raises two
contentions:
1. Was the evidence insufficient to support the finding that
Appellant received stolen property or theft where the evidence
presented at trial established that Appellant never intentionally
took, received, retained, or disposed of the property in question?
2. Was the evidence insufficient to support the finding that
Appellant recklessly endangered another person where no
evidence was presented at trial to establish that Appellant
engaged in conduct that may have placed another individual in
danger of death or serious bodily injury?
We first outline our well-established standard of review of sufficiency
claims:
The standard we apply when reviewing the sufficiency of
the evidence is whether viewing all the evidence admitted at trial
in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every element
of the crime beyond a reasonable doubt. In applying the above
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test, we may not weigh the evidence and substitute our judgment
for the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the trier
of fact 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. Furthermore, when reviewing a sufficiency
claim, our Court is required to give the prosecution the benefit of
all reasonable inferences to be drawn from the evidence.
Commonwealth v. Slocum, 86 A.3d 272, 275 (Pa.Super. 2014) (citation
omitted).
Appellant first challenges his conviction for receiving stolen property.
stolen property is established by proving that the accused
knowing that it has been stolen, or believing that it has probably been
stolen, unless the property is received, retained, or disposed of with intent
Commonwealth v.
Newton, 994 A.2d 1127 (Pa.Super. 2010). In assailing his conviction,
Appellant notes that the victim never testified that Appellant took or was in
possession of the property stolen from the young man. Indeed, N.S.
indicated that Jimmy Gibbs and Shawn Breck stole his property.
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The trial court stated that it convicted Appellant of the receiving-
stolen- I]t is well-
established that a defendant, who was not a principal actor in committing
the crime, may nevertheless be liable for the crime if he was an accomplice
Commonwealth v. Lynn, 83 A.3d 434, 454
(Pa.Super. 2013) (citation omitted). An accomplice is defined, in pertinent
the crime. 18
Pa.C.S. § 306(c)(1)(i-ii). Thus, two elements must be present in order for a
that the defendant intended to aid or promote the underlying offense.
Second, there must be evidence that the defendant actively participated in
Lynn,
supraevidence that he knew about the crime or was present
Id. at 454-55.
In this case, the evidence was sufficient to establish that Appellant was
an accomplice to the crime of receiving stolen property. He was more than
merely present at the scene of the crime. Rather, he joined in the actions of
the three other assailants and solicited the crime by telling his three cohorts
to take anything that they could from the victim. He also aided the culprits
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who actually took the cell phone and Ipod by surrounding the victim. His
words established that he intended for the two principal actors to take items
t which places or may
which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
mens rea for recklessly endangering another
person is a conscious disregard of a known risk of death or great bodily
harm to another person Commonwealth v. Cordoba, 902 A.2d 1280,
1288 (Pa.Super. 2006) (emphasis added and citation omitted).
As we noted in Commonwealth v. Klein, 795 A.2d 424, 427-28
(Pa.Super. 2002) (citation omitted), to establish that a defendant committed
the crime of REAP
an actual present ability to inflict harm and not merely the apparent ability
to
See also Commonwealth v. Fabian, 60 A.3d 146 (Pa.Super. 2013).
Appellant relies upon Commonwealth v. Alexander, 383 A.2d 887(Pa. 1978). Although Appellant represents that Alexander was convicted of
REAP when that defendant actually was convicted of aggravated assault, we
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do find that decision inst
sidewalk when Alexander punched him in the face. The victim fell to the
ground but did not become unconscious, and the only injury that he
sustained was a broken nose. At a nonjury trial, Alexander was convicted of
aggravated assault under 18 Pa.C.S. § 2702(a)(1). Someone is guilty of
causes such injury intentionally, knowingly or recklessly under circumstances
manifesting extreme ind
§ 2702(a)(1). On appeal, our Supreme Court concluded that the
Commonwealth failed to prove the offense in question.
The Commonwealth admitted that Alexander did not cause the victim
serious bodily injury. It maintained that, when the defendant struck the
victim on the nose with a closed first, the defendant displayed an intent to
inflict such injury. The Alexander Court held that a single punch delivered
to the face, without more, cannot support a finding that the actor intended
to inflict serious bodily injury. It continued that, where a single punch is
involved, the record must contain other evidence that the defendant had an
actual intent to inflict such injury. It indicated that such intent could be
supported by other circumstances, including, but not limited to, proof that
the defendant was disproportionately larger or stronger than the victim, that
the attack was not escalated solely due to restraint applied to the defendant,
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that the defendant had a weapon, or that the defendant made comments
during the incident that evidenced an intent to inflict serious bodily injury.
The defendant in Alexander was held not to possess specific intent to
inflict serious bodily injury by punching the victim once. Likewise, herein,
the evidence does not make out a case that Appellant exposed the victim to
a known risk of serious bodily injury by telling his three companions to take
his property. No one was armed and Appellant did not encourage or suggest
that the victim be attacked. While there was a danger of bodily injury to
N.S., there was not a known and actual risk of serious bodily injury inherent
in the situation.
The result herein is supported by the decision in Commonwealth v.
Moody, 441 A.2d 371 (Pa.Super. 1982). Therein, Moody was convicted of
established that the defendant forced a twelve-year-old girl into the
basement of a building, where he fondled her. When Moody began to unzip
his pants, the victim kicked him in the groin. Moody began to flee and the
victim followed him. Moody struck the girl in an attempt to keep her in the
basement and then tried to lock the basement door. After the girl told him
not to lock the door, Moody ceased that action, and the victim left the
premises. Moody argued on appeal that there was insufficient evidence to
which included forcing the girl into the basement, striking her, and touching
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Id. at 374.
In this case, four people surrounded the victim and one of them
punched him in the face. These actions involved substantially less danger
than those examined in Moody. Even though there were four accomplices
involved in the crime and the victim was a teenager, we find no proof that
Appellant exposed the victim to an actual and immediate danger of serious
bodily injury. He encouraged his cohorts to take items from the victim but
did not verbalize that he wanted the victim injured. One of his partners in
his glasses but did not cause bodily injury. Under all the circumstances, we
conclude that the evidence was insufficient to prove that Appellant
consciously disregarded an actual and known risk of death or great
bodily harm, which is the mens rea required to sustain a REAP offense. Cf.
Commonwealth v. Lawton, 414 A.2d 658 (Pa.Super. 1979) (defendant
indiscriminately swung wildly at crowd, punched two people, and continually
threated to kill people).1
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1
We do observe that there is an apparent inconsistency in the case law
regarding the immediacy of the danger required to sustain a REAP
conviction. In Lawton, we indicated that § 2705 did not mandate that any
person actually be placed in danger but instead, also encompassed potential
risks. Nevertheless, Moody is factually indistinguishable from the case at
bar. Moreover, the more recent case law as indicated in the text above
mandates that the situation create actual rather than apparent risk of
danger. A potential risk of serious bodily injury appears to flow from a
(Footnote Continued Next Page)
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Accordingly, we must reverse that conviction. Since our reversal in
this respect affects the overall sentencing scheme of the trial court, which
imposed the one-year probationary tail on this offense, we will remand for
re-sentencing.
reversed. In all other respects, the convictions are affirmed. The judgment
of sentence is vacated and the matter is remanded for resentencing. Case
remanded. Jurisdiction relinquished.
Judges Shogan and Ott Concur in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
_______________________
(Footnote Continued)
situation where four males, including one adult, surround a teenager to take
his belongings.
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