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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMES MCCLAIN
Appellant No. 3363 EDA 2015
Appeal from the Judgment of Sentence October 7, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011937-2014
CP-51-CR-0011938-2014
BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 20, 2016
Appellant, James McClain, appeals from the judgment of sentence
entered on October 7, 2015. We affirm.
The factual background and procedural history of this case are as
follows. In the early morning hours of September 21, 2014, Officers
Alexander Montes and Lisamarie Keleman responded to a report of
vandalism. While the officers spoke with the complainant, Appellant
violently struck the complainant’s vehicle and then fled on foot. When
Officers Montes and Keleman located Appellant a short time later, he once
again fled on foot. The officers pursued him in their patrol car.
Soon, Officer Montes exited the patrol car and began pursuing
Appellant on foot. When Officer Montes caught Appellant, he refused to be
* Retired Justice specially assigned to the Superior Court
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handcuffed. Instead, he choked Officer Montes for approximately 15
seconds and then slammed Officer Montes into the concrete sidewalk, pinned
him down, and elbowed and kicked him. Eventually, backup arrived and
four officers subdued Appellant.
The Commonwealth charged Appellant via criminal information with
aggravated assault,1 simple assault,2 recklessly endangering another person
(“REAP”),3 resisting arrest,4 and criminal mischief.5 On July 28, 2015,
Appellant was convicted of all five offenses. On October 7, 2015, the trial
court sentenced Appellant to an aggregate term of 9 to 18 months’
imprisonment. This timely appeal followed.6
Appellant presents one issue for our review:
Was not the evidence insufficient as a matter of law to sustain
[A]ppellant’s conviction for [REAP] where no person was placed
in danger of death or serious bodily injury and where it was not
proven that [A]ppellant had a conscious disregard for a known
risk of such danger?
Appellant’s Brief at 2.
1
18 Pa.C.S.A. § 2702(a).
2
18 Pa.C.S.A. § 2701(a).
3
18 Pa.C.S.A. § 2705.
4
18 Pa.C.S.A. § 5104.
5
18 Pa.C.S.A. § 3304(a)(2).
6
The trial court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b).
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“Whether sufficient evidence exists to support the verdict is a question
of law; our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016)
(citation omitted). “In assessing Appellant’s sufficiency challenge, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that the Commonwealth proved
[each] element of the crime beyond a reasonable doubt.” Commonwealth
v. Ansell, 143 A.3d 944, 949 (Pa. Super. 2016) (citation omitted). “The
evidence need not preclude every possibility of innocence and the fact-finder
is free to believe all, part, or none of the evidence presented.”
Commonwealth v. Ford, 141 A.3d 547, 552 (Pa. Super. 2016) (citation
omitted).
In order to convict a defendant of REAP, the Commonwealth must
“establish that the defendant’s conduct placed or may have placed another
in danger of serious bodily injury or death.” Commonwealth v. Cordoba,
902 A.2d 1280, 1289 (Pa. Super. 2006) (citation omitted). Furthermore,
“the evidence must establish that the defendant acted recklessly. . . . A
person acts in a reckless manner when he consciously disregards a
substantial and unjustifiable risk.” Commonwealth v. Vogelsong, 90 A.3d
717, 719 (Pa. Super. 2014), appeal denied, 102 A.3d 985 (Pa. 2014)
(internal citations omitted).
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Appellant argues that his actions did not put Officer Montes at risk of
serious bodily injury or death. He focuses on the fact that Officer Montes
was able to walk to his patrol car after the incident and was quickly released
from the hospital. Furthermore, Appellant argues that the fact Officer
Montes was no longer in pain at the time of trial proves he was not seriously
injured. This argument is flawed, however, because the focus of our inquiry
is not whether Officer Montes suffered serious bodily injury or death. See
Commonwealth v. Lawton, 414 A.2d 658, 662 (Pa. Super. 1979)
(“[T]he mere fact that the victim only sustained minor injuries and did not
sustain ‘serious bodily injury’ does not ipso facto establish that [the
defendant’s] actions did not place others in danger of such injury.”).
Instead, our inquiry is whether Appellant’s actions placed Officer Montes at
risk of serious bodily injury or death. Slamming Officer Montes to the
concrete sidewalk placed him at risk of serious bodily injury or death.7 If
Officer Montes struck his head, he could have suffered a concussion and a
concussion is a serious bodily injury. See Commonwealth v. Rife, 312
A.2d 406, 409 (Pa. 1973). Accordingly, there was sufficient evidence that
Appellant’s actions placed Officer Montes at risk of serious bodily injury or
death.
7
Appellant contends that Officer Montes wrestled him to the ground. See
Appellant’s Brief at 11. Officer Montes testified, however, that Appellant
slammed him into the concrete. N.T., 7/28/15, at 7.
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Appellant next argues that there was insufficient evidence to prove
that he acted with sufficient recklessness. He argues that he was merely
attempting to elude arrest and was not attempting to place Officer Montes at
risk of serious bodily injury or death. This argument is without merit. In
this case, Appellant did not merely resist arrest. Instead, after Officer
Montes wrapped his arms around him, Appellant slammed Officer Montes
into the concrete sidewalk. See N.T., 7/28/15, at 7. Appellant’s action
reflects a conscious choice to disregard the substantial and unjustifiable risk
that slamming Officer Montes into the concrete would place the officer at risk
of serious bodily injury. Moreover, attempting to avoid arrest does not
shield a defendant from being convicted of REAP. See Commonwealth v.
Picchianti, 600 A.2d 597, 598 (Pa. Super. 1991), appeal denied, 609 A.2d
168 (Pa. 1992); Commonwealth v. Henck, 478 A.2d 465, 467 (Pa. Super.
1984). Accordingly, there was sufficient evidence to convict Appellant of
REAP.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2016
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Com. v. McClain, J.
Combined Opinion