J-S45020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ERNEST ORTIZ
Appellant No. 1303 EDA 2013
Appeal from the Judgment of Sentence of April 18, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0007591-2012
BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*
MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 04, 2014
Ernest Ortiz appeals his April 18, 2013 judgment of sentence, which
was entered following his non-jury conviction of simple assault and 1,2 Before us, Ortiz
challenges the sufficiency of the evidence to sustain his REAP conviction.
We affirm.
The evidence adduced at trial, viewed in the light most favorable to
the Commonwealth as verdict-winner, supports the following account of the
____________________________________________
* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. §§ 2701 and 2705, respectively. 2 Ortiz was acquitted of aggravated assault, possession of an instrument of crime, prohibited offensive weapons, terroristic threats, and intimidation of a victim. See 18 Pa.C.S. §§ 2702, 907, 908, 2706, and 4952. J-S45020-14
factual history of this case. On June 10, 2012, Ortiz approached the victim,
Irving Flores Alejo, while Alejo was sitting on the steps of his house with his
girlfriend and another friend. Alejo recognized Ortiz as the person who had
allegedly mugged him two weeks prior to this incident. Accordingly, Alejo
asked Ortiz not to speak to him. However, Ortiz continued to speak to him.
Again, Alejo asked Ortiz not to speak to him and threatened to call the
24. Immediately after this exchange, Ortiz left. Shortly thereafter, while
Alejo was speaking to his girlfriend and another friend, Ortiz returned and
struck Alejo, unexpectedly, in the side of the head. Alejo testified that Ortiz
ran away immediately after striking him. Alejo received five stitches to
repair the wound on his face.
While on duty that same day, Officer Dennis Zungolo received a flash
around 6:40 p.m., which indicated that an offender who had committed an
assault lived at 1905 South 5th Street. Officer Zungolo responded to the
flash, and, at approximately 7:10 p.m., came upon Ortiz and stopped him
for an investigation. Officer Zungolo ultimately arrested Ortiz and
transported him to Methodist Hospital, where Alejo positively identified Ortiz
as the man who had assaulted him that day.
The learned trial court summarized the procedural history of this case
as follows:
-2- J-S45020-14
A [stipulated] non-jury trial was held on March 5, 2013 after
waiving his right to a jury trial. [Ortiz] is illiterate and cannot read or write English.3 He did, however[,] state that his attorney did explain the terms of the written colloquy to him and that he signed it after the explanation. Despite his illiteracy,
[Ortiz], through counsel, then waived arraignment and entered a plea of not guilty on all charges.
After hearing the testimony of the victim, Irving Flores Alejo, and Police Officer Dennis Zungolo for the Commonwealth, and
guilty [of simple assault and REAP.]
On April 18, 2013, [Ortiz] was sentenced by [the trial court] to incarceration of one to two years, to be followed by two years [of] reporting probation. He was also ordered to complete drug and alcohol rehabilitation, anger management classes[,] and undergo a mental health evaluation. His probation is to be monitored through the Mental Health Unit, given his history of mental illness.
-2.
On May 1, 2013, Ortiz filed a timely notice of appeal. The trial court
ordered Ortiz to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Ortiz timely complied. On October 28,
2013, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).
evidence insufficient to convict [Ortiz] of recklessly endangering another ____________________________________________
3 Although he cannot read or write English, Ortiz can speak and understand English. See N.T. at 5- testified for the defense) and the victim, Alejo, made use of a Spanish translator while testifying. Id. at 19, 64. Ortiz did not testify at trial.
-3- J-S45020-14
head did not place the complainant in danger of death or serious bodily
evidence to establish that he struck the victim in the head. Nor does Ortiz
claim that he acted in self-defense, or that he lacked the necessary mens
rea
failure to prove that Alejo was in danger of death or serious bodily injury.
Our standard of review in this context is well-established:
ther the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the light most favorable to the Commonwealth as verdict[-]winner, was sufficient to enable the fact[-]finder to conclude that the Commonwealth established all
Commonwealth v. Eichinger, 915 A.2d 1122, 1130 (Pa. 2007). Additionally, when examining sufficiency issues,
sustained by means of wholly circumstantial evidence; the entire trial record is evaluated and all evidence received against the defendant considered; and the trier of fact is free to believe all, part, or none of the evidence when evaluating witness Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).
Commonwealth v. Crabill, 926 A.2d 488, 490-91 (Pa. Super. 2007)
evidence is circumstantial rather than direct so long as the combination of
Commonwealth v. Brunson, 938 A.2d 1057, 1058 (Pa. Super. 2007)
(quoting Commonwealth v. Swerdlow, 636 A.2d 1173, 1176 (Pa. Super.
-4- J-S45020-14
or conjecture, the Commonwealth need not establish guilt to a mathematical
Id. (quoting Commonwealth v. Badman, 580 A.2d 1367,
1372 (Pa. Super. 1990)).
creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
Section 2705, the Commonwealth must prove that the defendant had an
actual present ability to inflict harm and not merely the apparent ability to
Commonwealth v. Cordoba, 902 A.2d 1280, 1288 (Pa. Super. 2006)
(citing Commonwealth v. Hopkins, 747 A.2d 910, 915-16 (Pa. Super.
ipso facto[,] establish that
Commonwealth v. Lawton, 414 A.2d 658, 663 (Pa.
Super. 1979).
In the present case, Ortiz argues that a single blow to the head, which
resulted in a wound requiring five stitches, did not place Alejo in danger of
-5- J-S45020-14
The Commonwealth failed to prove beyond a reasonable doubt that this single punch created a known and foreseeable risk that [Alejo] would die or suffer permanent disfigurement. A fortiori, [Ortiz] cannot be said to have consciously disregarded such a risk.
* * *
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J-S45020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ERNEST ORTIZ
Appellant No. 1303 EDA 2013
Appeal from the Judgment of Sentence of April 18, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0007591-2012
BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*
MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 04, 2014
Ernest Ortiz appeals his April 18, 2013 judgment of sentence, which
was entered following his non-jury conviction of simple assault and 1,2 Before us, Ortiz
challenges the sufficiency of the evidence to sustain his REAP conviction.
We affirm.
The evidence adduced at trial, viewed in the light most favorable to
the Commonwealth as verdict-winner, supports the following account of the
____________________________________________
* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. §§ 2701 and 2705, respectively. 2 Ortiz was acquitted of aggravated assault, possession of an instrument of crime, prohibited offensive weapons, terroristic threats, and intimidation of a victim. See 18 Pa.C.S. §§ 2702, 907, 908, 2706, and 4952. J-S45020-14
factual history of this case. On June 10, 2012, Ortiz approached the victim,
Irving Flores Alejo, while Alejo was sitting on the steps of his house with his
girlfriend and another friend. Alejo recognized Ortiz as the person who had
allegedly mugged him two weeks prior to this incident. Accordingly, Alejo
asked Ortiz not to speak to him. However, Ortiz continued to speak to him.
Again, Alejo asked Ortiz not to speak to him and threatened to call the
24. Immediately after this exchange, Ortiz left. Shortly thereafter, while
Alejo was speaking to his girlfriend and another friend, Ortiz returned and
struck Alejo, unexpectedly, in the side of the head. Alejo testified that Ortiz
ran away immediately after striking him. Alejo received five stitches to
repair the wound on his face.
While on duty that same day, Officer Dennis Zungolo received a flash
around 6:40 p.m., which indicated that an offender who had committed an
assault lived at 1905 South 5th Street. Officer Zungolo responded to the
flash, and, at approximately 7:10 p.m., came upon Ortiz and stopped him
for an investigation. Officer Zungolo ultimately arrested Ortiz and
transported him to Methodist Hospital, where Alejo positively identified Ortiz
as the man who had assaulted him that day.
The learned trial court summarized the procedural history of this case
as follows:
-2- J-S45020-14
A [stipulated] non-jury trial was held on March 5, 2013 after
waiving his right to a jury trial. [Ortiz] is illiterate and cannot read or write English.3 He did, however[,] state that his attorney did explain the terms of the written colloquy to him and that he signed it after the explanation. Despite his illiteracy,
[Ortiz], through counsel, then waived arraignment and entered a plea of not guilty on all charges.
After hearing the testimony of the victim, Irving Flores Alejo, and Police Officer Dennis Zungolo for the Commonwealth, and
guilty [of simple assault and REAP.]
On April 18, 2013, [Ortiz] was sentenced by [the trial court] to incarceration of one to two years, to be followed by two years [of] reporting probation. He was also ordered to complete drug and alcohol rehabilitation, anger management classes[,] and undergo a mental health evaluation. His probation is to be monitored through the Mental Health Unit, given his history of mental illness.
-2.
On May 1, 2013, Ortiz filed a timely notice of appeal. The trial court
ordered Ortiz to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Ortiz timely complied. On October 28,
2013, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).
evidence insufficient to convict [Ortiz] of recklessly endangering another ____________________________________________
3 Although he cannot read or write English, Ortiz can speak and understand English. See N.T. at 5- testified for the defense) and the victim, Alejo, made use of a Spanish translator while testifying. Id. at 19, 64. Ortiz did not testify at trial.
-3- J-S45020-14
head did not place the complainant in danger of death or serious bodily
evidence to establish that he struck the victim in the head. Nor does Ortiz
claim that he acted in self-defense, or that he lacked the necessary mens
rea
failure to prove that Alejo was in danger of death or serious bodily injury.
Our standard of review in this context is well-established:
ther the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the light most favorable to the Commonwealth as verdict[-]winner, was sufficient to enable the fact[-]finder to conclude that the Commonwealth established all
Commonwealth v. Eichinger, 915 A.2d 1122, 1130 (Pa. 2007). Additionally, when examining sufficiency issues,
sustained by means of wholly circumstantial evidence; the entire trial record is evaluated and all evidence received against the defendant considered; and the trier of fact is free to believe all, part, or none of the evidence when evaluating witness Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).
Commonwealth v. Crabill, 926 A.2d 488, 490-91 (Pa. Super. 2007)
evidence is circumstantial rather than direct so long as the combination of
Commonwealth v. Brunson, 938 A.2d 1057, 1058 (Pa. Super. 2007)
(quoting Commonwealth v. Swerdlow, 636 A.2d 1173, 1176 (Pa. Super.
-4- J-S45020-14
or conjecture, the Commonwealth need not establish guilt to a mathematical
Id. (quoting Commonwealth v. Badman, 580 A.2d 1367,
1372 (Pa. Super. 1990)).
creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
Section 2705, the Commonwealth must prove that the defendant had an
actual present ability to inflict harm and not merely the apparent ability to
Commonwealth v. Cordoba, 902 A.2d 1280, 1288 (Pa. Super. 2006)
(citing Commonwealth v. Hopkins, 747 A.2d 910, 915-16 (Pa. Super.
ipso facto[,] establish that
Commonwealth v. Lawton, 414 A.2d 658, 663 (Pa.
Super. 1979).
In the present case, Ortiz argues that a single blow to the head, which
resulted in a wound requiring five stitches, did not place Alejo in danger of
-5- J-S45020-14
The Commonwealth failed to prove beyond a reasonable doubt that this single punch created a known and foreseeable risk that [Alejo] would die or suffer permanent disfigurement. A fortiori, [Ortiz] cannot be said to have consciously disregarded such a risk.
* * *
By contrast, this Court has upheld convictions for reckless endangerment where the danger of death or serious bodily injury
not immediately evident.
danger of serious bodily
devastating." T.C.O. at 9.
By way of illustrative contrast, Ortiz offers citations to
Commonwealth v. Brunson, 938 A.2d 1057, 1061 (Pa. Super. 2007)
(upholding REAP conviction where defendant repeatedly punched, and
Commonwealth v. Cottam, 616 A.2d 988, 1004 (Pa. Super.
1992) (upholding REAP conviction where defendants failed to feed their
and Commonwealth v. Rochon, 581 A.2d 239, 244 (Pa. Super. 1990)
(upholding REAP conviction where defendant beat her seventeen-month-old
came
-6- J-S45020-14
actions led to life- Id. at 10
(hyphen added). In the -
Ortiz argues, his REAP conviction must be overturned. We disagree.
The cases cited by Ortiz represent instances of extreme conduct that
fall under the definition of REAP. However, such cases do not cover the
entire waterfront of situations in which an REAP conviction is valid.
Instantly, Ortiz has focused his argument on the fact that Alejo did not
as our recitation of case law above indicates, the quality of injury actually
sustained by a victim is not determinative in this context. See Lawton,
supra
inflict serious bodily injury, that controls. See Cordoba, supra. The fact
Our review of Pennsylvania case law has uncovered no cases that are
directly analogous to the present one. However, in Lawton, a panel of this
Court determined that an unarmed man committed REAP when he
threatened several people in a crowded Philadelphia subway station, and
Lawton, 414 A.2d at 662. The panel in Lawton discussed Section 2705,
and sufficiency of the evidence, as follows:
Reckless endangerment is defined in 18 Pa.C.S. § 2705 as
-7- J-S45020-14
[S]ection 211.2 of the Model Penal Code. The commentary to the Model Penal Code provides that [S]ection 211.2
Establishes a general prohibition of recklessly engaging in conduct which places or may place another person in danger of death or serious bodily injury. It does not require any particular person to be actually placed in danger, but deals with potential risks, as well as cases where a specific person actually is within the zone of danger.
Id. lant may
have only struck the victim and another unidentified individual, his action of
swinging indiscriminately into a crowd of students was sufficient to establish
beyond a reasonable doubt that he may have placed other persons in danger
of serious bodi Id. While there is no allegation in the instant case
that Ortiz placed anyone but the victim in immediate danger, we read
Lawton for the general proposition that a victim of REAP, who is also an
assailant in Lawton was found to have committed REAP on the basis of
nothing more than swinging his fists, with no apparent target selected in
advance. Here, by contrast, the trial evidence showed that Ortiz targeted
Alejo.
noting that the evidence presented by the Commonwealth suggests that
. At trial, Alejo testified that Ortiz struck
-8- J-S45020-14
See N.T. at 21. Specifically, Alejo testified that immediately
hing metal on
Id. at
22-23. Although Alejo could not identify precisely what Ortiz was holding in
Alejo with something, as opposed to merely hitting him with his naked fist.
This testimony, viewed in the light most favorable to the Commonwealth as
verdict-winner, see Crabill, supra, was sufficient circumstantial evidence to
allow the trial court to conclude that Ortiz used a weapon to assault Alejo.
see Commonwealth
v. Alexander
una
demonstrate that Ortiz possessed an actual ability to inflict physical harm
upon Alejo, and not merely a theoretical ability to do so.
Based upon the foregoing discussion, we conclude that there was
sufficient evidence for the trial court to conclude that Ortiz committed REAP.
Our case law demonstrates that a single blow to the head cannot be
assumed to carry only a de minimis risk of serious bodily injury. See
Commonwealth v. Burton, 2 A.3d 598, 605 (Pa. Super. 2010) (en banc)
-9- J-S45020-14
Commonwealth v. Patrick, 933 A.2d 1043, 1047-48 (Pa. Super. 2007)
(holding that the Commonwealth presented a prima facie case for
aggravated assault upon the basis of the assailant delivering a single punch 4 Specifically, in both Burton and Patrick, the respective
victims in Burton and Patrick were felled and struck their heads upon the
concrete, thereby greatly exacerbating their injuries. See Burton, 2 A.3d at
to the pavement without the benefit of a reflexive action to protect against
Patrick, 933 A.2d at 1047 (same).
While Burton and Patrick do not specifically address the claim raised
by Ortiz in this case, they are highly instructive in elucidating the potential
harms that may result from single blows to the head. Although Ortiz
4 We cite to Burton and Patrick for the general proposition that a single blow to the head carries a real risk of serious bodily injury. Both cases dealt explicitly with sufficiency of the evidence in the context of the crime of aggravated assault, an offense which is not at issue in the instant
for the purposes of both aggravated assault and REAP is identical. See 18
article shall have, unless the context clearly indicates otherwise, the Burton and Patrick are germane to this discussion for the limited purpose of establishing that
- 10 - J-S45020-14
have had that
ultimate result. Here, viewed in the light most favorable to the
Commonwealth, the evidence indicates that Ortiz struck Alejo with a
weapon, while Alejo was unawares, and that this assault resulted in physical
injury. Under Section 2705, we are not only concerned with the actual
injuries inflicted as the result of an assault, but with the potential for harm it
presented. Lawton, supra. Here, viewed in the context of our Burton and
Patrick precedents, Ortiz ignored the palpable risk that Alejo would suffer
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/4/2014
- 11 -