J. A10008/17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
ERIC MARCED, :
APPELLANT :
:
: No. 2261 EDA 2014
Appeal from the Judgment of Sentence July 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005207-2013
BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED JULY 24, 2017
Appellant, Eric Marced, appeals from the July 10, 2014 Judgment of
Sentence entered by the Court of Common Pleas of Philadelphia County
following his conviction of Possessing Instruments of Crime (“PIC”) and
Recklessly Endangering Another Person (“REAP”) following a bench trial.1
After careful review, we conclude that the Commonwealth failed to disprove
that Appellant was acting in self-defense during the fight, and thus, did not
prove that Appellant had the mens rea of recklessness, a required element
of REAP. Accordingly, we reverse in part, affirm in part, vacate the
Judgment of Sentence, and remand for resentencing.
1
18 Pa.C.S. § 907(a) and 18 Pa.C.S. § 2705, respectively.
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The underlying facts are not in dispute. The trial court summarized
the factual history as follows:
On January 1, 2013, at approximately 8:10 P.M., Officer Dwayne
Johnson (hereinafter "[Officer] Johnson") was working as a
correction officer at the Philadelphia Industrial Correctional
Center on cell block G1. [Officer] Johnson was working with his
partner, Officer Gibson. [Officer] Johnson was sitting behind a
desk when he heard a commotion. Two inmates were engaged
in a physical altercation. The two inmates were swinging at each
other with closed fists, two homemade knives with a closed fist
sharpened at the edge. In prison, these homemade knives are
called shanks.
When [Officer] Johnson stood up there were 100 inmates circled
around the two inmates that were fighting, Anthony Harrison
[(“Harrison”)] and Appellant. [Officer] Johnson ran over to the
fight and found the inmates wrestling with each other side-by-
side swinging closed fists at each other. The other inmate
involved in the fight, [Harrison], was bleeding from the back of
his head. Both [] Appellant and the other inmate, [Harrison,]
were taken to the medic. [Officer] Johnson did not notice any
injury on [] Appellant. Counsel stipulated to the introduction of
medical records of [Harrison,] who was transported from PICC
on January 1, 2013[,] to Aria Health Hospital and was treated
there for a stab wound and released on January 4, 2013.
Trial Court Opinion, filed 3/22/16, at 2-3.
Appellant was charged with PIC, REAP, and related offenses. After a
bench trial, the trial court found Appellant guilty of PIC and REAP and
subsequently sentenced him to term of eighteen to thirty-six months’
incarceration followed by two years of probation for the PIC conviction and a
concurrent two years of probation for the REAP conviction. 2
2
The trial court acquitted Appellant of Aggravated Assault and Simple
Assault charges. 18 Pa.C.S. § 2702 and 18 Pa.C.S. § 2701, respectively.
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Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issue on appeal: “Was not the evidence
insufficient to support [A]ppellant’s convictions for [REAP] and [PIC]”?
Appellant’s Brief at 3.
Our standard of review for sufficiency of evidence claims is well
settled:
A claim challenging the sufficiency of the evidence is a question
of law. 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. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
Recklessly Endangering Another Person
Appellant argues that the trial court erred in convicting him of REAP
because the Commonwealth failed to disprove that Appellant acted in self-
defense, and acting in self-defense negates the required mens rea of
recklessness. Appellant’s Brief at 8. We agree.
A person is guilty of REAP if “he recklessly engages in conduct which
places or may place another person in danger of death or serious bodily
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injury.” 18 Pa.C.S. § 2705. The crime of REAP requires the Commonwealth
to prove: (1) a mens rea of recklessness, or conscious disregard of a known
risk of death or great bodily harm to another, (2) a physical act, (3)
causation, and (4) the achievement of a particular result, namely danger to
another person of death or serious bodily injury. Commonwealth v.
Reynolds, 835 A.2d 720, 727 (Pa. Super. 2003).
Our Supreme Court has held that a claim of self-defense, if believed by
the fact-finder, negates any mens rea of recklessness. Commonwealth v.
Fowlin, 710 A.2d 1130, 1132-33 (Pa. 1998); Commonwealth v. Hilbert,
382 A.2d 724, 731 (Pa. 1978). A fact-finder cannot find that a defendant
justifiably acted in self-defense and simultaneously hold the defendant
criminally liable for crimes involving recklessness. Fowlin, supra at 1132.
When one employs deadly force, as Appellant did instantly, the
elements of a claim of self-defense are that the individual 1) reasonably
believed that force was necessary to protect himself 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. Commonwealth v.
Mouzon, 53 A.3d 738, 740 (Pa. 2012); see also 18 Pa.C.S § 505(b)(2).
A defendant does not have a burden to prove a claim of self-defense.
Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001). Rather, the
burden is on the Commonwealth to disprove the defense of self-defense.
Id. Once a party introduces some evidence to justify a finding of self-
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defense, then the issue is properly before the fact-finder and the
Commonwealth bears the burden to disprove the defense beyond a
reasonable doubt. Id.
In this case, we conclude that Officer Johnson’s testimony – that he
observed Harrison swinging a shank at Appellant and that he did not witness
who initiated the fight – provided “some evidence” to support a finding of
self-defense. See id. If Harrison provoked the fight, Appellant could have
reasonably believed that force was necessary to protect himself.
Once the issue of self-defense was before the fact-finder, it was the
Commonwealth’s burden to disprove the defense beyond a reasonable
doubt. See id. The Commonwealth failed to present any evidence as to
whether it was reasonable for Appellant to use a shank to protect himself,
who initiated the fight, or whether Appellant could have retreated without
using a shank. See Mouzon, supra at 740. The Commonwealth did not
present testimony from Harrison or testimony from any of the 100 inmates
that encircled Appellant and Harrison during the fight. After considering the
only evidence that the Commonwealth presented – Officer Johnson’s
testimony and Harrison’s medical records – the trial court stated on the
record, “What I am hearing is there a [sic] fight, I don’t know who started it.
I have no idea. I can’t say it is mutual combat . . . ” N.T., 1/16/14, at 20.
After a review of the evidence in the light most favorable to the
Commonwealth, we agree with Appellant that the Commonwealth failed to
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disprove beyond a reasonable doubt that Appellant acted in self-defense.
See, e.g., Torres, supra at 345 (concluding that the Commonwealth failed
to produce sufficient evidence to disprove claim of self-defense where the
evidence established that an altercation occurred between two individuals,
but the Commonwealth failed to present evidence about how the fight
started, a motive for using force other than self-defense, and physical
evidence to disprove self-defense).
Because the Commonwealth failed to disprove that Appellant acted in
self-defense, there was not sufficient evidence to prove that Appellant had
the required mens rea of recklessness. Thus, the trial court should not have
found Appellant liable for REAP.
We note that in support of its REAP finding, the trial court puts forth a
separate argument that Appellant was acting recklessly not only during the
fight, but also prior to the fight by possessing the shank and bringing it to a
fight in prison. Trial Court Opinion, filed 3/22/17, at 6. We disagree that
this analysis supports a finding of recklessness needed to prove REAP.
A conviction for REAP requires the Commonwealth to prove the
achievement of a particular result, namely danger to another person of
death or serious bodily injury. See Reynolds, supra at 727-28. Actual
danger must be created, not merely “the apprehension of danger[.]”
Commonwealth v. Klein, 795 A.2d 424, 427 (Pa. Super. 2002) (citation
omitted). The mere possession of a shank prior to engaging in a fight does
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not present actual danger. In the instant case, danger was not created until
the fight began and, thus, Appellant’s pre-fight possession of a shank fails to
satisfy the necessary elements to prove REAP.
Possessing an Instrument of Crime
We next analyze Appellant’s conviction for PIC. Appellant once again
avers that the Commonwealth failed to disprove that Appellant acted in self-
defense, and argues that this negates Appellant’s criminal liability for the PIC
charge. Appellant’s Brief at 8.
To sustain a conviction for PIC, the Commonwealth had to prove that
Appellant 1) possessed an instrument of crime, 2) with intent to employ it
criminally. See 18 Pa.C.S. § 907(a). Under the statute, an “instrument of
crime” is defined, in pertinent part, as “[a]nything specially made or
specially adapted for criminal use.” 18 Pa.C.S. § 907(d). While a fact-finder
can infer intent from the surrounding circumstances, intent cannot be
inferred from “mere possession of the weapon.” In re A.C., 763 A.2d 889,
891 (Pa. Super. 2000). Further, a fact-finder cannot reasonably infer
criminal intent if a defendant used a weapon solely for self-defense. Id.;
see also Commonwealth v. Watson, 431 A.2d 949, 953 (Pa. 1981)
(holding that criminal intent could not be inferred from the circumstances
surrounding appellant's possession of the gun which killed her husband
because appellant, having acted in self-defense, never used that gun to
commit a crime).
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In its 1925(a) Opinion, the trial court does not focus on Appellant’s use
of the shank during the fight. Rather, the trial court considers the
inherently criminal nature of Appellant’s pre-fight possession of the shank in
prison, regardless of whether he employed the shank during the fight. The
trial court opines:
In review of the evidence, it is absolutely clear that Appellant is
guilty of [PIC]. First, Appellant possessed a homemade knife or
“shank.” Second, a shank in prison is inherently criminal and
would be made for a criminal purpose. The very presence of
such a weapon in a prison context is criminal. The possession of
the weapon is a crime itself, and thus by merely possessing it
you intend to use it criminally. You do not have a weapon in
prison without the intent to use it criminally. The shank has no
other purpose than to injure another. An actor’s criminal
purpose may be inferred from the circumstances surrounding the
possession.
Trial Court Opinion, filed 3/22/16, at 5.
A review of the record in the light most favorable to the
Commonwealth, giving the Commonwealth all favorable inferences, supports
the trial court’s conclusion that Appellant’s pre-fight possession of a shank in
prison was sufficient evidence to convict Appellant of PIC. While a fact-
finder cannot infer criminal intent from mere possession of a weapon, this is
a unique set of circumstances where Appellant is incarcerated and there is
no legal purpose to possess a weapon in prison. We agree with the trial
court that possession of a weapon by a prisoner in prison is “inherently
criminal” and that the trial court could infer Appellant’s criminal intent from
the surrounding circumstances, namely that Appellant was incarcerated and
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possessed a weapon. Id. at 5; see also In re A.C., supra at 891.
Accordingly, we find that the trial court did not abuse its discretion when it
convicted Appellant of PIC.
In conclusion, we reverse Appellant’s conviction for REAP. Because
vacating Appellant’s sentence for REAP may disrupt the trial court’s overall
sentencing scheme, we vacate his Judgment of Sentence in its entirety and
remand for resentencing. See Commonwealth v. Barton-Martin, 5 A.3d
363, 370 (Pa. Super. 2010) (providing that where vacating a sentence
disrupts a trial court’s overall sentencing scheme, this Court will remand to
the trial court for resentencing).
Conviction for REAP reversed; conviction for PIC affirmed. Judgment
of Sentence vacated. Matter remanded for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2017
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Com. v. Marced, E.
Combined Opinion