Com. v. Jones, D.

J-A01023-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANAE JONES :
:
Appellant : No. 1576 EDA 2022
Appeal from the Judgment of Sentence Entered June 3, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006264-2021
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED APRIL 24, 2023
Appellant Danae Jones appeals from the judgment of sentence
imposed following her convictions for recklessly endangering another person
(REAP) and related offenses. On appeal, Appellant challenges the sufficiency
of the evidence supporting her convictions. Following our review, we affirm.
The trial court summarized the underlying facts of this matter as
follows:
[Appellant was charged with multiple offenses] for her role in a
two-day dispute between two families living on the 5500 block of
Hadfield Street in Philadelphia. [Appellant] was charged with
crimes against Alex Wise and his mother, Larenda Wise [(Mrs.
Wise)] . . . .
* * *
The evidence at trial showed an incident on January 25, 2021 . .
. between [Mrs.] Wise and [Appellant’s] father, Charles Clark.
The Commonwealth adduced no evidence of misconduct by
[Appellant] against [Mrs.] Wise.
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Mrs. Wise’s adult son, Alex Wise, lives with her. On January 26,
2021 [], Alex Wise left [his] home to go to a local convenience
store. Wise testified credibly at trial that he encountered Clark
and Clark’s mother as he approached the corner of their block.
Clark brandished a knife, and Clark’s mother drew a Taser.
Clark then called someone on his phone and directed that person
to “get that s---.” Wise turned around and walked back towards
his home. Clark walked toward his own home, in the same
direction. The two men argued as they walked toward their
respective homes.
Wise noticed at that point that [Appellant] had come out of her
house with a handgun held at her side. Wise split his attention
between [Appellant] and Clark as he followed Clark to the base
of the steps that [led] to Clark’s house. [Appellant] then went
into her home (she lived across the street from her father),
appeared at her upstairs window, and pointed her handgun at
Wise, finger on the trigger. [Appellant] testified that she did not
intend to threaten or hurt anyone but was silent on the question
whether her gun was loaded. Wise and Clark stopped arguing a
few minutes later.
Trial Ct. Op., 9/6/22, at 3 (citations to the record omitted).
On March 28, 2021, the Commonwealth charged Appellant with two
counts each of REAP, possession of an instrument of crime (PIC), simple
assault, and conspiracy.1,2 On March 17, 2022, the Commonwealth added
another PIC charge relating to the incident involving Mrs. Wise. Following a
bench trial on March 22 and June 3, 2022,3 the trial court found Appellant
guilty of the charges as to Alex Wise, but not guilty of the charges as to Mrs.
____________________________________________
1 18 Pa.C.S. §§ 2701(a), 2705, 907(a), and 903(a), respectively.
2The Commonwealth also charged Appellant with two counts of aggravated
assault; however, the trial court quashed those two charges prior to trial.
3 The trial in this matter was bifurcated so one of the Commonwealth’s
witnesses could appear to testify. N.T. Trial, 3/22/22, at 4-5, 53.
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Wise. That same day, the trial court sentenced Appellant to one year of
probation for each conviction, to be served concurrently.
Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing
Appellant’s claims.
On appeal, Appellant raises the following issues for our review:
1. Was the evidence insufficient as a matter of law to support
[Appellant’s] conviction for simple assault in violation of 18
Pa.C.S. § 2701(a), where the Commonwealth failed to prove
beyond a reasonable doubt that [Appellant] attempted to
cause, or intentionally, knowingly, or recklessly cause bodily
injury to anyone, or attempted by physical menace to put
another in fear of imminent serious bodily injury?
2. Was the evidence insufficient as a matter of law to support
[Appellant’s] conviction for [PIC] in violation of 18 Pa.C.S. §
907(a), where the Commonwealth failed to prove beyond a
reasonable doubt that [Appellant] ever possessed a long
metal pipe or a knife, or otherwise possessed any instrument
of crime, including a firearm with the intent to employ it
criminally?
3. Was the evidence insufficient as a matter of law to support
[Appellant’s] conviction for conspiracy – possession of an
instrument of crime – in violation of 18 Pa.C.S. § 903, where
the bills of information never charged [Appellant] with
conspiracy relating to the possession of an instrument of
crime and where the Commonwealth failed to prove beyond a
reasonable doubt that [Appellant] conspired with another
person to commit the objective crime charged, including
assault?
4. Was the evidence insufficient as a matter of law to support
[Appellant’s] conviction for [REAP] in violation of 18 Pa.C.S. §
2705, where the Commonwealth failed to prove beyond a
reasonable doubt that [Appellant] recklessly engaged in
conduct that placed or may have placed another person in
actual danger of death or serious bodily injury or otherwise
consciously disregarded a substantial and unjustifiable risk
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that death or serious bodily injury would result from her
conduct?
Appellant’s Brief at 4-5 (some formatting altered).
All of Appellant’s claims challenge the sufficiency of the evidence
supporting her convictions. Our standard of review when presented with a
sufficiency challenge is well settled:
The standard we apply in 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 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
proof 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 the evidence actually received must be considered. Finally,
the trier of fact while passing on the credibility of witnesses and
the weight of the evidence produced, is free to believe all,
part[,] or none of the evidence.
Commonwealth v. Bragg, 133 A.3d 328, 330-31 (Pa. Super. 2016)
(citation omitted). Because a sufficiency of the evidence challenge raises a
question of law, our standard of review is de novo, and our scope of review
is plenary. Commonwealth v. Mikitiuk, 213 A.3d 290, 300 (Pa. Super.
2019).
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Simple Assault
In her first claim, Appellant argues that the evidence was insufficient
to sustain her conviction for simple assault. Appellant’s Brief at 15.
Specifically, Appellant contends that the Commonwealth failed to establish
that she acted with specific intent to cause injury. Id. at 16. In support,
Appellant asserts that “there were no words or threats ever uttered by
[Appellant] or other circumstances evidencing her criminal intent to menace,
as opposed to dissuade or protect.” Id. at 17. Appellant also argues that
she raised the issue of self-defense during her testimony at trial and that
“the trial court found that [Appellant] likely had concerns for her safety” in
light of the exchange between Alex Wise and Appellant’s father the day
before. Id. at 19. Finally, Appellant contends that the trial court expressly
credited Appellant’s testimony that she “displayed the gun while standing
inside her front door so Alex [Wise] would not think about coming near her
or her home while or after fighting with her father directly across the street,”
and she concludes that the “Commonwealth offered nothing to disprove this
fear or the possibility that [she] was just trying to dissuade and protect.”
Id. at 20.
The Crimes Code defines simple assault, in relevant part, as an
“attempt[] by physical menace to put another in fear of imminent serious
bodily injury.” 18 Pa.C.S. § 2701(a)(3).
This Court has explained:
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“The act of pointing a gun at another person can constitute
simple assault as an attempt by physical menace to put another
in fear of imminent serious bodily injury.” In re Maloney, 636
A.2d 671, 674 (Pa. Super. 1994) (concluding simple assault
under Section 2701(a)(3) established where driver pointed gun
at another driver and said, “Get the f--- out of here”).
In Commonwealth v. Little, 614 A.2d 1146 (Pa. Super. 1992),
this Court formally adopted the trial court’s analysis regarding
sufficiency of the evidence to prove simple assault by physical
menace. The elements which must be proven are intentionally
placing another in fear of imminent serious bodily injury through
the use of menacing or frightening activity. Id. at 1151-55.
Intent can be proven by circumstantial evidence and may be
inferred from the defendant’s conduct under the attendant
circumstances. Id. at 1154.
Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa. Super. 2003) (some
citations omitted and formatting altered). Further, when a defendant is
charged with simple assault by physical menace for brandishing a firearm,
the Commonwealth is not required to prove that the firearm was loaded.
See Commonwealth v. Gouse, 429 A.2d 1129, 1133 (Pa. Super. 1981)
(explaining that “to obtain convictions for the pointing of an unloaded
firearm in situations where there was no actual danger of harm to the
person allegedly endangered, the indictment or information should, at the
outset, specifically charge the accused with simple assault pursuant to
[Section] 2703(a)(3)”).
With respect to self-defense, this Court has explained:
[T]he elements of a claim of self-defense are that the individual
(1) reasonably believed that force was necessary to protect
[herself] against death or serious bodily injury; (2) was free
from fault in provoking the use of force against him; and (3) did
not violate any duty to retreat.
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A defendant does not have a burden to prove a claim of self-
defense. Once a defendant introduces some evidence to justify
a finding of self-defense, then the issue is properly before the
fact-finder and the Commonwealth bears the burden to disprove
the defense beyond a reasonable doubt.
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citations
omitted, formatting altered). In order for the Commonwealth to meet its
burden of disproving a defendant’s claim of self-defense, it need only
disprove one of the above elements beyond a reasonable doubt.
Commonwealth v. Green, 273 A.3d 1080, 1085 (Pa. Super. 2022).
Here, at trial, Appellant testified that she stood inside her home
brandishing a firearm because she “didn’t want [Alex Wise] to even come
near [her] or think about doing anything.” N.T. Trial, 6/3/22, at 53-54.
Appellant also confirmed that she walked out to the street while holding a
firearm, and that Alex Wise did not point a firearm in her direction at any
point. Id. at 55-56.
Before it announced its verdict, the trial court made the following
finding regarding Appellant’s testimony:
[I]t’s possible that if [Appellant] thought [her] father was being
threatened that [she] would get a gun to protect [her] father.
And so, you know, it’s possible that that – I don’t need to make
this finding. Here she is in her house with her hand on the
trigger. But before there’s any threat to her father whatsoever,
when her father – just in response to a phone call, get that s---,
she comes out into the street with a handgun.
Id. at 77.
In its Rule 1925(a) opinion, the trial court further explained:
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Exhibit C-2 is a photograph that shows [Appellant] standing in
the middle of her street, gun drawn. Exhibit C-1 is a photograph
that shows [Appellant] at her second-floor window, pointing the
gun at [Alex] Wise, finger on the trigger. [Appellant] testified at
trial. She acknowledged she had appeared in the middle of her
street . . . with a gun drawn.
Trial Ct. Op. at 6 (citations omitted).
Following our review of the record, and in viewing the evidence in the
light most favorable to the Commonwealth as verdict winner, we conclude
that there was sufficient evidence to sustain Appellant’s conviction for simple
assault by physical menace. See Bragg, 133 A.3d at 330-31. Although the
trial court sitting as the finder of fact credited some of Appellant’s testimony,
the trial court also noted that Appellant brought her gun out to the street
before there was any threat to Appellant or her father. See N.T. Trial,
6/3/22, at 77. Therefore, the record reflects that the Commonwealth
established that Appellant was not free from fault in provoking the incident
at issue. See Green, 273 A.3d at 1085; Miller, 172 A.3d at 640.
Additionally, as noted previously, the Commonwealth presented
evidence that Appellant pointed a firearm at Alex Wise with her finger on the
trigger, thereby placing Alex Wise in fear of imminent serious bodily injury.
Therefore, we conclude that there was sufficient evidence supporting
Appellant’s simple assault conviction. See Reynolds, 835 A.2d at 726(reiterating that the act of pointing a firearm at another person is sufficient
to prove simple assault under Section 2701(a)(3)). Accordingly, Appellant is
not entitled to relief.
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Possession of an Instrument of Crime
Appellant also challenges the sufficiency of the evidence supporting
her conviction for PIC. Appellant’s Brief at 23. Specifically, Appellant argues
that “there was insufficient evidence to support the finding beyond a
reasonable doubt that the defendant employed the firearm criminally,
especially if she did not commit an assault or recklessly endanger anyone.”
Appellant’s Brief at 23 (citations omitted).
PIC is defined as possession of “any instrument of crime with intent to
employ it criminally.” 18 Pa.C.S. § 907(a). The Crimes Code defines
“instrument of crime” as “[a]nything used for criminal purposes and
possessed by the actor under circumstances not manifestly appropriate for
lawful uses it may have.” 18 Pa.C.S. § 907(d).
Here, as noted by the trial court, the Commonwealth introduced a
photograph into evidence of Appellant pointing a firearm at Alex Wise. See
Trial Ct. Op. at 6-7. Further, as discussed previously, the act of pointing a
firearm at another person is sufficient to prove the elements of simple
assault. See Reynolds, 835 A.2d at 726. On this record, and viewing the
evidence in the light most favorable to the Commonwealth, we conclude that
there was sufficient evidence establishing that Appellant used a firearm with
the intent of using it for a criminal purpose. See 18 Pa.C.S. § 907(a);
Bragg, 133 A.3d at 330-31. Therefore, Appellant is not entitled to relief on
this claim.
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Criminal Conspiracy
Appellant also challenges the sufficiency of the evidence supporting
her conviction for criminal conspiracy to commit simple assault.4 Appellant’s
Brief at 24. Appellant argues that the trial court engaged in “guesswork and
speculation” to convict Appellant of conspiracy because Appellant “did
nothing with the handgun as she stood outside her home other than to hold
it down to her side and then scurry into her house when the fight between
Alex [Wise] and [Clark] drew closer to her home.” Id. at 25.
“A person is guilty of conspiracy with another person . . . to commit a
crime if with the intent of promoting or facilitating its commission [s]he
agrees with such other person . . . that they or one or more of them will
engage in conduct which constitutes such crime[.]” 18 Pa.C.S. § 903(a)(1).
Further, as this Court has noted:
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of a
____________________________________________
4 In her brief, Appellant has included argument and analysis challenging her
conviction for conspiracy to commit simple assault. However, Appellant
notes that the trial court’s written sentencing order reflects that Appellant
was convicted of conspiracy to commit PIC. See Appellant’s Brief at 24.
After reviewing the record in its entirety, we conclude that the charge
reflected on the written sentencing order was an error, and that Appellant
was actually charged with and convicted for conspiracy to commit simple
assault. See Criminal Information, 7/15/21, at 1; see also N.T. Trial,
6/3/22, at 77-78 (reflecting the trial court’s guilty verdict for conspiracy to
commit simple assault). As such, we will review Appellant’s sufficiency claim
as it pertains to her conviction for conspiracy to commit simple assault.
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shared criminal intent. An explicit or formal agreement to
commit crimes can seldom, if ever, be proved and it need not
be, for proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its activities.
Thus, a conspiracy may be inferred where it is demonstrated
that the relation, conduct, or circumstances of the parties, and
the overt acts of the co-conspirators sufficiently prove the
formation of a criminal confederation. The conduct of the parties
and the circumstances surrounding their conduct may create a
web of evidence linking the accused to the alleged conspiracy
beyond a reasonable doubt. Even if the conspirator did not act
as a principal in committing the underlying crime, [s]he is still
criminally liable for the actions of [her] co-conspirators taken in
furtherance of the conspiracy.
Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018)
(citations omitted and formatting altered).
In the instant case, the trial court addressed Appellant’s conspiracy
conviction as follows:
The evidence showed [Appellant] conspired with her father to
assault Alex Wise. [Alex] Wise testified credibly that Clark called
someone on the phone when [Alex] Wise and Clark argued on
the street corner on [January 26, 2021]. [Alex] Wise heard
Clark tell the other person on the line to “get that s---.”
[Appellant] appeared in the street a few minutes later with a
handgun, and later pointed it at [Alex] Wise with her finger on
the trigger. The [trial court] inferred from this sequence of
events that (1) Clark was speaking with [Appellant] when he told
someone to “get that s---,” (2) [Appellant] understood Clark to
mean she should get her handgun, and (3) [Appellant] agreed
with Clark to use the handgun to intimidate [Alex] Wise. This
evidence supports a conviction of conspiracy to commit simple
assault in violation of 18 Pa.C.S. § 903(a).
Trial Ct. Op. at 5 (formatting altered).
Based on our review of the record, and in viewing the evidence in the
light most favorable to the Commonwealth, we conclude that there was
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sufficient evidence establishing Appellant’s guilt for conspiracy to commit
simple assault. See Bragg, 133 A.3d at 330-31. As noted by the trial
court, the Commonwealth presented circumstantial evidence that Appellant
and Clark agreed to intimidate Alex Wise through the use of a firearm. See
18 Pa.C.S. § 903(a); Johnson, 180 A.3d at 479. Accordingly, Appellant is
not entitled to relief on this claim.
Recklessly Endangering Another Person
In her final claim, Appellant challenges the sufficiency of the evidence
supporting her conviction for REAP. Appellant’s Brief at 21. Initially,
Appellant notes that the mere act of pointing an unloaded gun at a person is
insufficient to prove the elements of REAP. Id. (citing Gouse, 429 A.2d at
1131). In the instant case, Appellant asserts that the trial court found her
guilty of REAP because she brought “a loaded handgun out on the street”
and later pointed that gun out of her second-floor window, which was
reckless conduct that “created an actual danger of death or serious bodily
injury[.]” Appellant’s Brief at 22. However, Appellant argues that the
Commonwealth failed to present any evidence establishing that the gun was
loaded. Further, Appellant argues that although the trial court found that
“the handgun must have been loaded[,] there was no evidence to support
this conclusion.” Id.The Commonwealth responds that “the evidence was sufficient to allow
the reasonable inference that [Appellant] placed others in danger of death or
serious bodily injury.” Commonwealth’s Brief at 9. In support, the
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Commonwealth relies on Mrs. Wise’s trial testimony that “‘a loaded firearm’
prevented [Alex Wise] from returning to his home.” Id. at 9. The
Commonwealth also refers to Alex Wise’s testimony from the preliminary
hearing where he stated that Appellant’s father “‘was continually egging her
on to use the firearm,’ which suggests he had reason to believe that the gun
was usable and the weapon was loaded.” Id. (citing N.T. Trial, 3/22/22, at
44; N.T. Preliminary Hr’g, 7/12/21, at 14) (emphasis added).5 Finally, the
Commonwealth notes that this Court has affirmed REAP convictions in cases
where there was no “definitive confirmation that a wielded gun was loaded.”
Id. at 9-10 (citing Commonwealth v. Rivera, 503 A.2d 11 (Pa. Super.
1985) (en banc); Commonwealth v. Holguin, 385 A.2d 1346 (Pa. Super.
1978) (en banc); Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009)).
The Crimes Code defines REAP as follows: “a person commits a
misdemeanor of the second degree if [s]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.
This Court has explained:
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5 The record reflects that the trial court admitted a copy of the transcript
from the preliminary hearing. See N.T. Trial, 6/3/22, at 56-58. Because
our standard of review requires that we review all evidence admitted at trial,
we may review the contents of the preliminary hearing transcript. See
Bragg, 133 A.3d at 330.
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To sustain a conviction for recklessly endangering another
person, the Commonwealth must 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. The mens rea for recklessly
endangering another person is a conscious disregard of a known
risk of death or great bodily harm to another person.
Brandishing a loaded firearm during the commission of a crime
provides a sufficient basis on which a fact-finder may conclude
that a defendant proceeded with conscious disregard for the
safety of other[s], and that [s]he had the present ability to inflict
great bodily harm or death.
Commonwealth v. Martuscelli, 54 A.3d 940, 949 (Pa. Super. 2012)
(citations omitted, formatting altered, and emphasis added). Additionally,
the “mere apparent ability to inflict harm is not sufficient for a conviction
under section 2705, and the pointing of an unloaded weapon, without more,
does not constitute recklessly endangering.” Gouse, 429 A.3d at 1131
(citations omitted).
However, this Court has acknowledged that we may sustain a REAP
charge involving an unloaded gun where “the circumstances surrounding the
pointing of the gun were so inherently dangerous that the required common
law element of actual danger of harm was proven despite the fact that the
gun was unloaded.” Id.; see e.g., Rivera, 503 A.2d at 12-13 (concluding
that it was unnecessary for the Commonwealth to prove that the defendant’s
gun was loaded in a REAP case where the evidence demonstrated that the
victims in a home invasion “were in ‘actual’ danger, not merely ‘apparent’
danger, from the pointed gun and [] the robbers were in a position whereby
they could, in fact, shoot the victims of the robbery”); Holguin, 385 A.2d at
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1353 (finding sufficient evidence for REAP where the defendant pointed a
gun into a crowded bar because, although there was no evidence that the
defendant’s gun was loaded, the defendant created a significant risk of
retaliation with gunfire by either employees or patrons of the bar); Hartzell,
988 A.2d at 144 (finding sufficient evidence for REAP where the defendant
fired a gun, and stating that “it is not difficult to conclude that the actual
discharging of a weapon numerous times in the vicinity of others constitutes
a sufficient danger to satisfy the REAP statute”).
We find that the facts of the instant case are analogous to Holguin,
Rivera, and Hartzell. The Commonwealth presented evidence of escalating
hostilities between Clark and the Wises. Indeed, the trial court heard
testimony that Clark struck Mrs. Wise in the face with a metal pipe the day
before the incident at issue in the instant case. N.T. Trial, 3/22/22, at 13.
Alex Wise further testified that before Appellant pointed a gun at him, he
encountered Clark and Clark’s mother, both of whom were armed with a
knife and Taser, respectively, on the street. N.T. Trial, 6/3/22, at 17-18. At
the time of this encounter, Wise testified that Clark made a phone call
directing the recipient of the call to “get that s---.” Id. at 18. Based on
these facts, we find that Appellant’s pointing a gun at Wise increased the
likelihood of potential retaliation from other residents in the neighborhood.
See Holguin, 385 A.2d at 1353.
Additionally, the Commonwealth presented evidence that Clark was
encouraging Appellant to shoot Wise. Specifically, Wise testified as follows:
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Actually [Clark] was continually egging [Appellant] on to use the
firearm. He was saying, you know, [“]Shoot that f-----.[”] Like
talking about me and stuff about killing him. I was trying to stay
home that day because there was an incident the day before
that kind of ties into this.
N.T. Preliminary Hr’g, 7/12/21 at 14. Further, Wise testified that Appellant
was screaming inaudibly during this incident. Id. at 16. We find that a
factfinder may reasonably infer from this evidence that Appellant possessed
the ability to shoot Wise. See Rivera, 503 A.2d at 12-13. Finally, the
evidence introduced at trial reflects that this incident took place in an urban
neighborhood in the City of Philadelphia consisting of a narrow street with
rowhomes on each side. See Commonwealth’s Exhibit 1 and 2. A factfinder
could reasonably infer if Appellant fired her gun, the bullets could potentially
hit bystanders. See Hartzell, 988 A.2d at 145.
While our review of Appellant’s sufficiency of the evidence challenge is
de novo, we cannot overlook the troubling misinterpretation of fundamental
legal principles inferred by the trial court in its 1925(a) opinion. When
addressing Appellant’s REAP conviction, the trial court observed:
[At trial, Appellant] was silent on the question of whether the
gun was loaded.
Appellant knew her ability to harm [Alex] Wise was at issue at
trial. She testified on direct examination that she did not intend
to hurt or threaten him. She had every incentive to testify
that the gun was unloaded if that had been the case. But
she did not. The [trial court], sitting as the factfinder,
reasonably inferred from her failure to address this issue
that [Appellant] had pointed a loaded gun.
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Trial Ct. Op. at 7 (citations omitted and emphasis added). We are
concerned that this analysis improperly articulates a shifting of the burden to
prove guilt from the Commonwealth to Appellant. See generally U.S.
Const. amend. V; Pa. Const., art. I, § 9. Clearly, Appellant testified at trial
and chose not to exercise her constitutional right to remain silent, but by
doing so she did not assume the burden to prove herself not guilty. The trial
court as factfinder in a bench trial certainly was entitled to assess her
credibility like any other witness but could not require Appellant to disprove
the charges against her.
We note that it is axiomatic that in a criminal proceeding, the
Commonwealth bears the burden of proving a defendant’s guilt beyond a
reasonable doubt. “Of course, the burden of proving [a] defendant’s guilt
beyond a reasonable doubt never shifts . . . .” Commonwealth v. Bryson,
120 A. 552, 555 (Pa. 1923) (citation omitted); see also Patterson v. New
York, 432 U.S. 197, 208 (1977) (stating that “[t]he requirement of proof
beyond a reasonable doubt in a criminal case is ‘bottomed on a fundamental
value determination of our society that it is far worse to convict an innocent
man than to let a guilty man go free’” (quoting In re Winship, 397 U.S.
358, 372 (1970) (Harlan, J., concurring)). Although the trial court’s
comments were troubling, the totality of the evidence presented in the
record supports its inference that the gun was loaded, including a photo of
Appellant at her front door, pointing a gun at Wise with her finger on the
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trigger. N.T. Trial, 6/3/22, at 25-26, 83-84; Commonwealth Exhibit 1; Trial
Court Op. at 3.
For these reasons, following our review of the record, and in viewing
the light most favorable to the Commonwealth, we conclude that the
Commonwealth presented sufficient evidence to sustain Appellant’s
conviction for REAP as well as the other related offenses discussed herein.
See Patterson, 432 U.S. at 208; Bryson, 120 A. at 555; Bragg, 133 A.3d
at 330-31.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2023
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