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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ALEXIS DELACRUZ, :
:
Appellant : No. 547 EDA 2014
Appeal from the Judgment of Sentence January 16, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0006735-2012
BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED MAY 15, 2015
Alexis Delacruz (“Delacruz”) appeals from the judgment of sentence
entered on January 16, 2014 by the Court of Common Pleas of Philadelphia
County, Criminal Division, following his convictions of recklessly endangering
another person (“REAP”), persons not to possess, use, manufacture, control,
sell or transfer firearms, and carrying firearms on public streets or public
property in Philadelphia.1 We affirm.
The trial court summarized the relevant facts of this case as follows:
On December 29, 2011, at approximately 8:30 p.m.,
[Delacruz] had a disagreement with his ex-girlfriend,
Alicia Martinez, at her grandmother’s house on 3419
Kip Street in Philadelphia. The argument turned
violent, and Martinez’s mother, who was also present
at the residence, telephoned Michael Jones
[(“Jones”)], the complainant, to come to the scene.
Jones arrived shortly after, along with Frank Dyches
1
18 Pa.C.S.A. §§ 2705, 6105(a)(1), 6108.
*Retired Senior Judge assigned to the Superior Court.
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[(“Dyches”)], the boyfriend of Alicia Martinez’s
mother. Jones and Dyches spoke first to Martinez
inside the house, and then to [Delacruz] outside of
the house. The conversation outside of the house
lasted for approximately [ten] minutes. According to
[Jones’] testimony, [Delacruz] mumbled something
and walked away. As Jones and Dyches walked
away, Jones heard a gunshot from behind him.
Jones then turned and saw [Delacruz] running from
the block.
[Jones’] trial testimony differs from the original
statement he gave police on the night of the
shooting. According to [Jones’] statement, after
[Delacruz] walked away from the conversation,
Jones overheard him on the phone telling someone
to “bring the hammer around.” Jones understood
“hammer” to mean gun. Jones then witnessed
another man, who he believed may have been
[Delacruz]’s brother, handing [Delacruz] a silver
gun. [Delacruz] began to approach Jones, who
called out to him, “What, you want to shoot me?
Shoot me then.” [Delacruz] pointed the gun at
Jones. As Jones turned away from [Delacruz], the
shot was fired.
In his testimony, Jones claimed that his police
statement was incorrect: he did not see a gun, and
while he heard a gunshot, he does not know who
was responsible for it. Jones claimed that his
statement was confused with [Dyches’]. Detective
Patrick Winward [(“Detective Winward”)] took
[Jones’] statement on the night of the shooting.
Detective Winward testified that Jones was friendly
and cooperative on the night the statement was
taken, and arrived in his own transportation. Jones
signed the statement and also initialed it where an
error had been corrected. Detective Winward also
took [Dyches’] statement that night. It was
consistent with [Jones’] statement.
Police responded to the 3400 block of Kipp Street at
8:34 PM and secured the area. Philadelphia Police
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Officer Terrence Mulvey [(“Officer Mulvey”)]
recovered a .9mm fired cartridge case from the
scene later that night. Officer Robert Stott [(“Officer
Stott”)] of the Philadelphia Police Firearm
Identification Unit offered expert testimony that the
shell casing found on the scene indicated that a shot
had been fired in the immediate area.
Prior to the start of trial, Detective Martin Sheeron
[(“Detective Sheeron”)] was assigned to find Dyches
when he failed to appear in court for the scheduled
preliminary hearing. Detective Sheeron continued to
search for Dyches when he failed to appear at trial,
but his efforts were unsuccessful. Jones, himself,
failed to appear in court on three separate dates. He
did appear for the preliminary hearing on June 6,
2012. That day, an intern at the Philadelphia District
Attorney’s Office overheard Jones on a phone call
outside of the courtroom. He said, “I don’t know
why they are threatening me, I’m not going to say
shit about the case or nothing.” Following the
telephone call, [Jones’] testimony changed from his
police statement.
Trial Court Opinion, 9/10/14, at 2-3 (record citations omitted).
On August 30, 2013, a jury found Delacruz guilty of the above-
referenced crimes. On January 16, 2014, the trial court sentenced Delacruz
to an aggregate term of six to twelve years of incarceration. On February
12, 2014, Delacruz filed a timely notice of appeal.
On appeal, Delacruz raises the following issue for our review and
determination: Was the evidence insufficient to sustain a conviction of
REAP? Delacruz’s Brief at 3. In reviewing a challenge to the sufficiency of
the evidence, our standard of review is as follows:
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As a general matter, our standard of review of
sufficiency claims requires that we evaluate the
record in the light most favorable to the verdict
winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the
evidence. Evidence will be deemed sufficient to
support the verdict when it establishes each material
element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish
guilt to a mathematical certainty. Any doubt about
the defendant’s guilt is to be resolved by the fact
finder unless the evidence is so weak and
inconclusive that, as a matter of law, no probability
of fact can be drawn from the combined
circumstances.
The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Accordingly, [t]he fact that the evidence establishing
a defendant’s participation in a crime is
circumstantial does not preclude a conviction where
the evidence coupled with the reasonable inferences
drawn therefrom overcomes the presumption of
innocence. Significantly, we may not substitute our
judgment for that of the fact finder; thus, so long as
the evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the
respective elements of a defendant’s crimes beyond
a reasonable doubt, the appellant’s convictions will
be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(internal quotations and citations omitted). Importantly, “the jury, which
passes upon the weight and credibility of each witness’s testimony, is free to
believe all, part, or none of the evidence.” Commonwealth v. Ramtahal,
33 A.3d 602, 607 (Pa. 2011).
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Section 2705 of the Crimes Code defines the crime of 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. § 2705. Serious bodily injury
is defined as “[b]odily 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. To support a REAP conviction, the conduct in question must create
an actual, not merely theoretical or perceived, danger. Commonwealth v.
Cancilla, 649 A.2d 991, 994 (Pa. Super. 1994) (“Danger, and not merely
the apprehension of danger, must be created. Therefore … (“[18 Pa.C.S.A.]
§ 2705 retains the common law assault requirement of actual present ability
to inflict harm.”) (quoting Commonwealth v. Trowbridge, 395 A.2d 1337,
1340 (Pa. Super. 1978)). To establish the existence of an actual danger of
death or serious bodily injury in a REAP case involving a gun, the
Commonwealth must establish that the gun was loaded to secure a
conviction. See Commonwealth v. Smith, 437 A.2d 757, 759 (Pa. Super.
1981) (holding that REAP conviction based on threat of shooting requires
proof that the firearm was loaded).
First, Delacruz argues that the evidence was insufficient to sustain his
conviction of REAP because there was no evidence that Delacruz actually
fired a gun during the incident. Delacruz’s Brief at 10, 13. Delacruz asserts
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that there were several other people outside with him during the incident,
and any one of those people could have fired the gun. Id. at 11. Second,
Delacruz contends that there was no evidence that when he pointed the gun
at Jones, prior to the gunshot, that it was loaded. Id. at 10-11, 13. Third,
Delacruz claims that even if he fired the gun, there was no evidence as to
the direction in which he was pointing the gun when he fired it. Id. at 11.
Delacruz relies entirely on the change in Jones’ recollection of the
incident from when Jones gave his statement to police to when he testified
at trial. At trial, Jones testified that he did not see a gun and that while he
heard a gunshot, he did not know who fired the gun. N.T., 8/27/13, at 84-
92. In this regard, Delacruz ignores the requirement that we view the
evidence in the light most favorable to the Commonwealth and that the jury
was free to believe all, part, or none of the evidence, including Jones’
statement to police.
The evidence, viewed in the light most favorable to the
Commonwealth, establishes the following. During the course of a fight
Delacruz was having with his ex-girlfriend, Jones and Dyches arrived at the
scene and spoke with Delacruz. N.T., 08/27/2013, at 72-83. Jones and
Dyches spoke with Delacruz for a few minutes before Delacruz mumbled
something and walked away. Id. at 82-83. According to Jones’ statement
to police, after Delacruz walked away from his conversation with Jones and
Dyches, Jones overheard Delacruz telling someone to “bring the hammer
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around.” N.T., 08/27/2013, at 100. Jones knew “hammer” to mean a gun.
Id. Jones told police that he then observed another man hand Delacruz a
silver nine-millimeter gun. Id. at 100, 110-11. Jones further told police
that as Delacruz approached Jones with the gun, Jones said to him, “What,
you want to shoot me? Shoot me then.” Id. at 101. According to Jones’
statement to police, Delacruz then pointed the gun at Jones and as Jones
turned away from Delacruz, Delacruz fired the gun. Id. at 101, 110-11.
Later that night, Officer Mulvey recovered a discharged nine-millimeter shell
from the scene. N.T., 08/28/2013, at 127-28.2 Officer Stott testified that
the recovery of this shell casing indicated that a shot had been fired in the
immediate vicinity. Id. at 118.
Therefore, the certified record reflects that Delacruz fired a gun during
the incident, that when he pointed the gun at Jones, it was loaded, and that
he pointed the gun in Jones’ direction when he fired the gun. Thus, each of
Delacruz’s arguments fails. It is immaterial that Jones’ recollection of the
incident changed from the time he gave his statement to police to the time
of trial as the jury was free to believe the version of the incident that he
originally gave to police. See Ramtahal, 33 A.3d at 607. Accordingly, we
conclude that the evidence was sufficient to sustain the REAP conviction.
Judgment of sentence affirmed.
2
The transcript from August 28, 2013 is incorrectly labeled as August 28,
2012 in the certified record on appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2015
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