Com. v. Stalkel, R. (memorandum)

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J-S70002-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. ROY STALKEL Appellee No. 1206 EDA 2012 Appeal from the Order Entered March 13, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0018842-2011 BEFORE: GANTMAN, J., OLSON, J., and WECHT, J. MEMORANDUM BY GANTMAN, J.: FILED DECEMBER 20, 2013 Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Philadelphia County Court of Common Pleas, which granted Appellee, Roy Stalkel s, petition for writ of certiorari to review his convictions in Municipal Court, for recklessly endangering another person ( REAP ), and possessing instruments of crime ( PIC )1, vacated the convictions, and discharged Appellee. We affirm. The relevant facts and procedural history of this appeal are as follows. On May 2, 2011, at approximately 1:00 a.m., Appellee was at home alone with his three sleeping children when he heard someone knock on his door. Appellee had previously witnessed a shooting in Philadelphia and feared ____________________________________________ 1 18 Pa.C.S.A. §§ 2705, 907(a), respectively. J-S70002-13 someone was coming to get him. Appellee looked out through the door peephole and saw a person standing on the other side of the door, but Appellee was unable to determine the person s race and sex. Appellee asked who it was several times but received no answer. Appellee then looked out of another entrance to his home to see who was there, but he did not see anyone. Before going back into his home, Appellee noticed a few young guys standing on the street corner. Appellee then locked his door and retrieved his handgun. Shortly thereafter, Appellee went back outside and fired one shot into the air to scare away anyone who might be there. Appellee then returned to his home and locked the door. Appellee was taking Xanax and Percocet as the result of a car accident. He waited several minutes, looked through the peephole again, and went back outside to fire two more warning shots into the air. Appellee reentered his home and locked the door. A short while later, the police arrived on the scene and observed several empty shell casings in front of Appellee s home. Through a window, the police also observed Appellee pacing inside his home. Upon the arrival of the police, Appellee hid his handgun behind his washing machine. The police subsequently arrested Appellee and recovered the handgun. Appellee was charged with REAP and PIC. On December 2, 2011, the Philadelphia Municipal Court convicted Appellee of both charges. That same day, the Municipal Court sentenced -2- J-S70002-13 Appellee to twelve months reporting probation. Appellee timely filed a petition for writ of certiorari in the Philadelphia County Court of Common Pleas on Tuesday, January 3, 2012 (Monday, January 2, 2012, was New Year s Day observed). The Common Pleas Court granted Appellee s petition, vacated his convictions and sentences for REAP and PIC, and discharged Appellee on March 13, 2012. The Commonwealth filed a motion for reconsideration on March 21, 2012, which the court denied after a hearing on March 28, 2012. On April 11, 2012, the Commonwealth timely filed a notice of appeal, and a voluntary concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The Commonwealth raises the following issue for our review: DID THE [COMMON PLEAS COURT] ERR IN FINDING THE EVIDENCE INSUFFICIENT FOR RECKLESSLY ENDANGERING ANOTHER PERSON AND POSSESSING AN INSTRUMENT OF CRIME, WHERE [APPELLEE] REPEATEDLY FIRED A LOADED HANDGUN INTO THE AIR IN FRONT OF HIS ROWHOUSE ON A POPULATED RESIDENTIAL STREET IN PHILADELPHIA WHILE HIS FOUR YOUNG CHILDREN WERE ASLEEP INSIDE, AND SEVERAL MEN WERE STANDING NEARBY ON THE STREET CORNER? (Commonwealth s Brief at 3). The Commonwealth argues any one of Appellee s multiple warning shots could have struck someone, given the populated area in which Appellee fired his gun. The Commonwealth claims scientific evidence and plain common sense prove that firing a gun into the air in a populated area can easily result in catastrophic injury or death. The Commonwealth alleges -3- J-S70002-13 Appellee placed his sleeping children and neighbors, as well as the bystanders on the street corner, in danger of death or serious bodily injury as a result of falling and/or ricocheting bullets. The Commonwealth also contends that the court s reliance on Commonwealth v. Kamenar, 516 A.2d 770 (Pa.Super. 1986) and Commonwealth v. Smith, 447 A.2d 282 (Pa.Super. 1982) was misplaced because it was impossible for the appellant in Kamenar to have struck anyone by the lone shot she had fired into a hillside, and because the evidence in Smith, which only showed that the appellant was holding a rifle and that the rifle was fired, differs from Appellee s actions of firing three shots on a populated street. The Commonwealth concludes the court erred in finding the evidence insufficient to uphold Appellee s convictions for REAP and PIC, and those convictions and sentences should be reinstated. We disagree. When examining a challenge to the sufficiency of evidence, our standard of review is as follows: 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 -4- J-S70002-13 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. Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)). As a preliminary matter, we observe that, to preserve the requirements and purpose of Rule 1925(b), an appellant who files a voluntary Rule 1925(b) statement is held to the same requirements as an appellant who files a Rule 1925(b) statement pursuant to a court order. See Commonwealth v. Snyder, 870 A.2d 336 (Pa.Super. 2005) (stating appellant waived issues not raised in voluntary Rule 1925(b) statement). Instantly, in its brief, the Commonwealth raised sufficiency claims for REAP and PIC. Nevertheless, the Commonwealth did not raise the sufficiency of the evidence for the PIC conviction as an issue in its voluntary Rule 1925(b) statement. Accordingly, the PIC claim is waived. See id. Section 2705 of the Crimes Code provides: § 2705. Recklessly endangering another person 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 death or serious bodily injury. -5- J-S70002-13 18 Pa.C.S.A. § 2705. Thus, [this] crime requires (1) a mens rea of recklessness, (2) an actus reus some conduct, (3) causation which places, and (4) the achievement of a particular result danger, to another person, of death or serious bodily injury. Commonwealth v. Reynolds, 835 A.2d 720, 727 (Pa.Super. 2003) (quoting Commonwealth v. Trowbridge, 395 A.2d 1337, 1340 (Pa.Super. 1978)). See Commonwealth v. Klein, 795 A.2d 424 (Pa.Super. 2002) (indicating mens rea for REAP is conscious disregard of known risk of death or great bodily harm to another person, and serious bodily injury is bodily injury which creates substantial risk of death or causes serious, permanent disfigurement or protracted loss or impairment of function of any bodily member or organ). REAP is a crime of assault which requires the creation of danger. Reynolds, supra (quoting Commonwealth v. Rivera, 503 A.2d 11, 12 (Pa.Super. 1985) (en banc)) (internal quotation marks omitted). Significantly, REAP is a crime of assault which requires the creation of danger so there must be an actual present ability to inflict harm. Reynolds, supra at 727-28. Mere apparent ability is not enough because danger, and not the apprehension of danger, must be created. Id. at 728 (quoting Trowbridge, supra). What constitutes sufficient evidence for a REAP conviction depends on the facts and circumstances of the individual case. See, e.g., Commonwealth v. Hartzell, 988 A.2d 141 (Pa.Super. 2009) (determining -6- J-S70002-13 evidence was sufficient to support appellant s conviction for REAP where appellant consciously disregarded known risk when he pointed rifle in general direction of two men and purposefully shot into water close to men); Reynolds, supra (determining evidence was sufficient to sustain appellant s convictions for REAP where appellant created actual danger by pointing gun at victim outside bar, and where appellant s actions presented actual, foreseeable risk of danger that someone else with gun could have retaliated); Commonwealth v. Hopkins, 747 A.2d 910 (Pa.Super. 2000) (determining evidence was sufficient to support appellant s REAP convictions with respect to victim s parents where appellant proceeded with conscious disregard for safety of others and had present ability to inflict great bodily harm or death when he subjected gun to accidental misfiring while he pistolwhipped victim with victim s parents less than five feet away, and when appellant held Commonwealth gun v. as he took Boettcher, money 459 A.2d from 806 victim s mother); (Pa.Super. 1983) (determining evidence was sufficient to sustain appellant s convictions for REAP where appellant stood in her doorway and pointed loaded gun at victim, hit victim with gun, and fired shot into air). Compare Kamenar, supra (determining evidence was insufficient to sustain appellant s REAP conviction in view of complete absence of evidence that appellant s girlfriend s discharge of gun out of rear window of home, into wooded hillside behind home, placed or may have placed any other -7- J-S70002-13 person in danger of death or seriously bodily injury); Smith, supra (determining evidence was insufficient to sustain appellant s REAP conviction where there was no evidence that appellant fired rifle at his neighbor or that neighbor was placed in any danger of death or serious bodily injury). Instantly, the court analyzed the sufficiency claim for REAP as follows: In the instant case, this [c]ourt finds that the Commonwealth presented insufficient evidence to sustain [Appellee s] REAP conviction. The evidence offered by the Commonwealth was insufficient to support an inference that [Appellee] actually placed anyone in a situation where the risk of death or serious bodily injury was real and not merely apparent. Unlike in Smith, where the [C]ourt was unable to determine in what direction the rifle was actually fired, here, it is undisputed that [Appellee] fired his gun into the air and did not aim or otherwise point that weapon in the direction of any other person. Similar to the circumstances in Kamenar, where no one was in immediate danger or harm when the [girlfriend] fired her gun into the hillside behind her home, here, no one was in the immediate vicinity or area when [Appellee] fired his weapon into the night sky. [Appellee s] children were asleep inside his house on the night in question. He did not point or shoot the gun inside the dwelling or otherwise aim it in their direction. Nor did he fire the gun in the direction of the individuals standing at his street corner that evening. He fired the gun towards the sky above. Like in Kamenar, where the officer was standing nearby in a neighboring house when the [girlfriend] fired the gun into the hillside, here, the alleged intruders were standing near [Appellee s] home at the corner of the 1900 block of Goodnaw Street when he fired his gun into the night sky. In sum, this [c]ourt finds that no actual evidence was presented that anyone was ever in any real and not merely apparent danger on the night in question. The facts clearly show that [Appellee] did not point the weapon in the direction of any other person. Moreover, he did not aim his gun at anyone intending to harm him ¦. [Appellee] merely fired -8- J-S70002-13 the gun off into the night sky in a direction where virtually no one would be placed in an immediate or real danger of substantial bodily injury or death. Accordingly, this [c]ourt finds that there was insufficient evidence to sustain [Appellee s] conviction of [REAP] on these facts. (Trial Court Opinion, filed May 14, 2013, at 8-9). We agree. The facts of the present case are more analogous to the cases in which this Court found the evidence was insufficient to sustain the REAP conviction. See Kamenar, supra; Smith supra. Appellee did not point his gun at, or even in the general direction of, anyone. The Commonwealth failed to prove the area was actually populated at the time the shooting occurred. Therefore, the circumstances in this case most closely resemble those of Kamenar and Smith. Appellee s actions failed to demonstrate a conscious disregard of a known risk of death or serious bodily injury or an actual present ability to inflict harm. See Reynolds, supra; Klein, supra. Accordingly, we affirm. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/20/2013 -9-

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