J-S47019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DESMON M. RAMOS,
Appellant No. 1983 EDA 2013
Appeal from the Judgment of Sentence of June 12, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010516-2010
CP-51-CR-0010517-2010
BEFORE: MUNDY, OLSON and WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 13, 2014
Appellant, Desmon M. Ramos, appeals from the judgment of sentence
entered on June 12, 2013. We affirm.
The trial court has ably summarized the underlying facts and
procedural posture of this case. As the trial court explained:
The first complainant, [W.D.], testified that on August 4,
2010, at approximately 4:40 in the afternoon[,] he was
[traveling] home on the trolley along Woodland Avenue
from his workplace in [Center City Philadelphia]. Seated
next to [W.D.] on the two-seat bench was [Appellant].
[W.D.] testified that he was tired and was falling in and out
of sleep, but that he remembered being awakened by the
mumbling of [Appellant]. [W.D.] was awakened again when
[Appellant], who was seated next to the window, asked
[W.D.] to get up so that [Appellant] could pass him. [W.D.]
awoke a third time to find [Appellant leaning] over him and
trying to attack the man directly behind him. [W.D.]
testified that [Appellant] was holding an object in his hand
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attempt to secure the object [Appellant] was holding.
[Appellant] then moved toward the door of the trolley and
literally dragged [W.D.] with him. [W.D.] wrapped
there until [Appellant] dropped the object, which [W.D.]
identified as a flat-head [screwdriver] with a black and
yellow handle. Once [Appellant] dropped the [screw driver,
W.D.] released his grip, and [Appellant] fled. [W.D.]
received a cut on his hand during the attack.
The second complainant, [A.D.], testified that on August 4,
2010, he was sitting on the trolley directly behind [W.D.,]
along with a female friend who was sitting behind
[A.D.] testified that when the trolley came to a stop at 53rd
Street[, Appellant] asked [W.D.] if he could pass him, but
[A.D.] suffered a small cut on [his] wrist as a result. [W.D.]
subdued [Appellant], who then fled the trolley. After the
police arrived[, A.D.] was asked to accompany an officer in
his vehicle to identify [Appellant], who had been detained.
Philadelphia Police Officer Kenneth Sherard testified that at
approximately 4:40 p.m. on August 4, 2010[,] he
responded to a call of a reported stabbing at 53rd and
Woodland Avenue. On arrival[,] Officer Sherard observed
[W.D], who had blood on his hands, and [A.D.], who had
puncture wounds on his left forearm. Officer Sherard
recovered a [screwdriver] from [W.D.,] which had an
orange and black handle and was approximately eight
inches long. After taking a description from [W.D.] and
[A.D.], Officer Sherard put out flash information describing
the suspect. Upon receiving word that [Appellant] had been
apprehended[,] Officer Sherard drove [A.D.] approximately
a block away, whereupon [A.D.] identified [Appellant].
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Philadelphia Police Detective Keith Scott testified that on the
day of the assault he was on foot patrol in the vicinity of
53rd and Woodland when he received a call to investigate a
stabbing incident. Shortly afterward he and his partner
detained [Appellant], who matched the description of the
assailant, and held [Appellant] until [A.D.] was brought to
the scene and made a positive identification.
...
On August 4, 2010, [Appellant] was arrested and charged
[with two counts each of]: (1) aggravated assault pursuant
to 18 Pa.C.S.A. § 2702(a)(4), (2) possession of an
instrument of a crime with intent to employ it criminally
pursuant to 18 Pa.C.S.A. § 907(a), (3) simple assault
pursuant to 18 Pa.C.S.A. § 2701(a), [and] (4) recklessly
pursuant to 18 Pa.C.S.A. § 2705. . . .
[Appellant proceeded to a bench trial. With respect to
, the trial court found Appellant
guilty of aggravated assault, simple assault, and REAP, but
not guilty of possession of an instrument of crime. With
found Appellant guilty of possession of an instrument of
crime, and the trial court entered a judgment of acquittal
prior to disposition on the aggravated assault, simple
assault, and REAP charges].
On June 12, 2013[, the trial court sentenced Appellant] to
n on the
[possessing an instrument of crime conviction] and five
sentence was imposed on [the simple assault and REAP
convictions, as the trial court believed that the crimes]
merged with the charge of aggravated assault.
Trial Court Opinion, 12/19/13, at 1-4 (some internal citations and
capitalization omitted).
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Appellant filed a timely notice of appeal. Appellant raises one claim
before this Court:
Did not the trial court err in finding [Appellant] guilty of
[REAP] in that there was insufficient evidence that
[Appellant] engaged in conduct that placed [A.D.] in danger
of death or serious bodily injury?
We review Appell
following standard:
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 [that of] 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
-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.
Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806
(Pa. Super. 2008).
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Our Crimes Code defines REAP as follows:
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.
18 Pa.C.S.A. §
which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
crime of REAP is a crime of assault which requires the creation of danger.
As such, there must be an actual present ability to inflict harm. . . . [T]he
mere apparent ability to inflict harm is not sufficient. Danger, and not
Commonwealth v.
Reynolds, 835 A.2d 720, 727-728 (Pa. Super. 2003) (internal quotations
and citations omitted).
According to Appellant, the evidence was insufficient to support his
pecifically,
could not have found Appellant guilty of REAP. Id.
At the outset, Appellant is incorrect to claim that he could not have
been convicte actual injuries were minor.
may place another person in danger of
Pa.C.S.A. § 2705 (emphasis added). Thus, under the plain terms of the
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statute, a REAP conviction is supportable even where the victim suffered no
actual injury whatsoever. Commonwealth v. Rahman, 75 A.3d 497, 502-
503 (Pa. Super. 2013) (evidence was sufficient to support REAP conviction
where the defe
actually fall down the stairs, the evidence was sufficient to place the officer
Commonwealth v. Hartzell, 988 A.2d 141, 143-144 (Pa. Super.
2009) (explaining that the evidence was sufficient to support the appel
distance of approximately 30 yards, appellant fired into the creek near the
bridge. Although appellant may not have pointed the weapon directly at the
two [victims], it was pointed in their general direction. Moreover, the
evidence established that the water was rather shallow and there were rocks
in the stream. . . . Thus, it is hardly inconceivable that a bullet fired into the
stream nearby could have struck a rock or other object and deflected up and
Reynolds, 835 A.2d at 729 (pointing a loaded gun
at an individual created the danger of death or serious bodily injury and the
In the case at bar,
and actually stabbing A.D. with
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a sharp, eight-inch-long screwdriver in close quarters constituted conduct
2705. As the trial court so well explained:
The Commonwealth presented convincing evidence from
two eyewitnesses that [Appellant], without provocation,
aggressively attacked [A.D.]. The instrument used for the
attack was an [eight-inch-long screwdriver], which was
sharp enough to pierce the skin of [W.D.] and [A.D.] during
the incident. This [screwdriver] was clearly capable of
being a dangerous weapon when used in the manner
employed by [Appellant]. The violent and intentional nature
the weapon over his head and bringing it down on [A.D.] in
thrusts did not inflict more serious injury and that [W.D.]
was able to quickly subdue [Appellant], but the evidence
presented was more than sufficient to show that
ed . . . [A.D.] in danger of death
sufficient for the [trial court] to find beyond a reasonable
such injury.
Trial Court Opinion, 12/19/13, at 6.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2014
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