Com. v. Reynolds

• Decision Date: 27 October 2003
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Courtney Joseph REYNOLDS, Appellant.
• Court: Pennsylvania Superior Court

835 A.2d 720

COMMONWEALTH of Pennsylvania, Appellee, v. Courtney Joseph REYNOLDS, Appellant.

Superior Court of Pennsylvania.

Submitted June 16, 2003.

Filed October 27, 2003.

Anthony A. Logue, Erie, for appellant.

Bradley H. Foulk, Asst. Dist. Atty., Erie, for Com., appellee.

BEFORE: HUDOCK, BENDER, and TAMILIA, JJ.

OPINION BY BENDER, J.:

¶ 1 Courtney Joseph Reynolds appeals from the October 21, 2002 judgment of sentence¹ imposed following his convictions on two counts of recklessly endangering another person (REAP), two counts of simple assault, and one count each of terroristic threats and disorderly conduct. We affirm.

¶ 2 The Honorable William R. Cunningham, who presided over trial and imposed sentence in this case, set forth the following factual history in his Pa.R.A.P. 1925(a) opinion:

On February 23, 2002 Appellant and his spouse were patrons at Sherlock's Tavern when one of the victims, Mr. Tyson Baker ["Baker"], made a disparaging remark about Appellant's spouse. Appellant responded by threatening to kill [Baker], indicating he had a gun. Subsequently, Appellant and his spouse were removed from the premises by tavern security. As [Baker] and Mr. Daniel Miner ["Miner"] exited the tavern shortly thereafter, they were confronted by the Appellant. After a brief verbal exchange, Appellant pulled a 9 mm semi-automatic handgun out of his pants and pointed it at [Baker's] face. [Baker] grabbed the gun and [Miner] tackled both [Baker] and Appellant forcing them to the ground. A struggle followed and eventually a bystander stepped upon Appellant's hand holding the gun. [Miner] then allowed Appellant to get up. Upon regaining his feet, Appellant again brandished his weapon at both [Baker] and [Miner] and threatened them before running off.

Trial Court Opinion (T.C.O.), 1/31/03, at 1-2. Appellant was charged with one count each of possessing instruments of crime (18 Pa.C.S. § 907(b)) and disorderly conduct (18 Pa.C.S. § 5503(a)(1)), and two counts each of REAP (18 Pa.C.S. § 2705), terroristic threats (18 Pa.C.S. § 2706(a)(1)), and simple assault (18 Pa. C.S. § 2701(a)(3)). Appellant proceeded to a jury trial on September 12, 2002. On September 13, 2002, the jury returned a verdict of guilty on all counts except for possessing instruments of crime and the one count of terroristic threats as to Miner.

¶ 3 On October 21, 2002, the trial court sentenced Appellant to an aggregate of twelve to forty-six months' imprisonment in a state correctional institution with a consecutive term of seven years' probation. Specifically, the sentence of imprisonment was imposed on two particular counts: terroristic threats as to Baker and simple assault as to Baker.

¶ 4 On October 29, 2002, Appellant filed a timely post-sentence motion, in which he properly consolidated all of his requests for relief, which included (1) a motion for judgment of acquittal, arrest of judgment, and/or new trial; and (2) a motion for reconsideration of sentence. See Pa. R.Crim.P. 720(A)(1), (B)(1)(a). On the same date, the trial court denied Appellant's post sentence motion. On November 7, 2002, Appellant filed a timely notice of appeal, which is now before us.

¶ 5 Appellant raises four issues in this appeal, which we shall address in the order presented. In his first issue, Appellant argues the evidence was insufficient to sustain his convictions because the Commonwealth allegedly failed to establish that Appellant did not act in self-defense. Appellant's brief at 17.

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 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. Troy, 2003 PA Super 340, 832 A.2d 1089, 1092 (2003) (citations omitted). We emphasize that it is not our role, as an appellate court, to substitute our judgment for that of the fact-finder. Commonwealth v. Lutes, 793 A.2d 949, 960 (Pa.Super.2002). "It is the function of the jury to evaluate evidence adduced at trial to reach a determination as to the facts, and where the verdict is based on substantial, if conflicting evidence, it is conclusive on appeal." Id. at 960-61.

¶ 6 Appellant's argument on this issue is sparse, and he merely contends, in a general fashion, that because the Commonwealth allegedly failed to disprove that he acted in self-defense, the evidence was insufficient to sustain all of his convictions. However, Appellant does not explain how the Commonwealth's alleged failure to disprove self-defense relates to his convictions other than simple assault, which include REAP, terroristic threats, and disorderly conduct. Nevertheless, despite the paucity of Appellant's argument, we will examine the sufficiency of the evidence vis-à-vis all of these offenses, followed by a discussion of self-defense.

¶ 7 We conclude initially that the evidence was sufficient to sustain all of Appellant's convictions. Appellant was convicted of two counts of simple assault, one as to Baker and one as to Miner, pursuant to 18 Pa.C.S. § 2701(a)(3), which indicates that a person commits simple assault when he "attempts by physical menace to put another in fear of imminent serious bodily injury." "[T]he act of pointing a gun at another person [can] constitute simple assault as an attempt by physical menace to put another in fear of imminent serious bodily injury." In re Maloney, 431 Pa.Super. 321, 636 A.2d 671, 674 (1994) (citations and internal quotation marks omitted) (concluding simple assault under section 2701(a)(3) established where driver pointed gun at another driver and said, "Get the f* * * out of here").

In Commonwealth v. Little, [418 Pa.Super. 558, 614 A.2d 1146 (1992)], this court formally adopted the trial court's analysis regarding sufficiency of the evidence to prove simple assault by physical menace. The elements which must be proven are intentionally placing another in fear of imminent serious bodily injury through the use of menacing or frightening activity. Id. at 1151-1155. Intent can be proven by circumstantial evidence and may be inferred from the defendant's conduct under the attendant circumstances. Id. at 1154.

Commonwealth v. Repko, 817 A.2d 549, 554 (Pa.Super.2003).

¶ 8 We examined the entire trial transcript in the light most favorable to the Commonwealth and conclude that the Commonwealth presented sufficient evidence to establish simple assault, against Baker and Miner, under section 2701(a)(3). While in the bar, during the verbal altercation between Appellant, Baker, and Miner, both Miner and another witness heard Appellant say to Baker that he had a gun and that he would "stick [his] gun down [Baker's] f* * * * * * throat" or "blow [Baker's] f* * * * * * head off." N.T. Trial, 9/12/02, at 32-33, 44. Upon discovering that Appellant had a gun, the bouncer removed Appellant and his wife from the bar. Id. at 19, 33. Approximately five to ten minutes after Appellant and his wife left the bar, Baker and Miner exited the bar and encountered Appellant and his wife again. Id. at 21, 34. The verbal argument recommenced and escalated into a physical altercation. Specifically, Appellant pulled out his gun, pointed it to Baker's face, and threatened Baker. Id. at 21, 34. Baker tried to grab the gun and was struggling with Appellant, when Miner tackled them both to the ground. Id. at 21, 34. The three men wrestled on the ground for control of the gun. Id. at 21-22, 35, 51. While on the ground, a bystander stepped on the hand holding the gun, presumably Appellant's hand. Id. at 51. The three men stood up and Appellant, who was still holding the gun, pointed the gun at both Miner and Baker and said, according to the bystander, "don't f* * * with me[,] I got a gun" and "I'll kill you mother f* * * * * *." Id. at 36, 51. After threatening Miner and Baker with the gun, Appellant ran off into a back alley. Id. at 36. Both Baker and Miner testified that they were afraid for their lives. Id. at 22, 41. Appellant's conduct, i.e., pointing the gun at the victims and threatening their lives, evidences his intent to place the victims "in fear of imminent serious bodily injury through the use of menacing or frightening activity." Repko, 817 A.2d at 554. Accordingly, the evidence was sufficient to establish the elements of simple assault by physical menace pursuant to section 2701(a)(3).

¶ 9 Appellant was also convicted of two counts of REAP, under 18 Pa.C.S. § 2705, which states that "[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. § 2705. "Thus, the crime requires (1) a mens rea 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. Trowbridge, 261 Pa.Super. 109, 395 A.2d 1337, 1340 (1978). See...