Opinion
J-S68019-17 No. 399 MDA 2017
03-05-2018
COMMONWEALTH OF PENNSYLVANIA v. CURTIS DALE HANDY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 22, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0002824-2016 BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Curtis Dale Handy, appeals from the Judgment of Sentence entered by the Berks County Court of Common Pleas following his convictions after a bench trial of Disorderly Conduct and Recklessly Endangering Another Person ("REAP"). We affirm on the basis of the trial court's May 10, 2017 Opinion.
18 Pa.C.S. § 5503(a)(1) and 18 Pa.C.S. § 2705, respectively.
The trial court summarized the relevant underlying facts as follows:
At [trial], Jeffrey Smith testified for the Commonwealth [that he] was driving eastbound on Route 422 when he observed a vehicle driven by [Appellant] merge onto the highway and cut off a BMW. Mr. Smith testified that the BMW had to [brake] hard to avoid crashing into [Appellant's] car. According to Mr. Smith, the BMW then pulled into the right lane and accelerated. Mr. Smith testified that in response, [Appellant] also accelerated to prevent the BMW from passing him.
Mr. Smith stated that the two cars continued to jockey back and forth until they passed the Mount Penn exit. At that point, the BMW, which was in the left lane, drove parallel to a car in the right lane to prevent anyone from passing. As the cars approached DeMoss Road, the BMW moved to the left as if it were going to make a left turn onto DeMoss Road. Mr. Smith testified that [Appellant's] car, which had been behind the BMW, then accelerated quickly to the left of the BMW. Mr. Smith then observed [Appellant] point a black handgun at the driver of the BMW. This court found Mr. Smith's testimony credible.Trial Court Opinion, filed 5/10/17, at 3-4.
After a bench trial, the trial court convicted Appellant of Disorderly Conduct and REAP. On November 22, 2016, the trial court sentenced Appellant to an aggregate term of two years' probation. Appellant filed a timely Post-Sentence Motion, which the trial court denied on February 9, 2017.
On March 3, 2017, Appellant filed a Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
In his sole issue on appeal, Appellant avers that the evidence was insufficient to support his REAP conviction. See Appellant's Brief at 4. He argues that the Commonwealth failed to prove that the gun could have been fired when he pointed it at the motorist since it had "bullets in the clip BUT not a bullet in the chamber." Appellant's Brief at 10-13.
Appellant also avers that the Commonwealth failed to prove Appellant's minor child was endangered as set forth in the Criminal Information. Appellant failed to present this issue in his Pa.R.A.P. 1925(b) Statement of Errors, and the trial court did not address this issue in its Pa.R.A.P. 1925(a) Opinion. Thus, Appellant waived this issue. See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Smith , 955 A.2d 391, 393 (Pa. Super. 2008) (en banc) (holding that "when the trial court directs an appellant to file a concise statement of matters complained of on appeal, any issues that are not raised in such a statement will be waived for appellate review."). Insofar as the Brief also suggests, for the first time, errors regarding the Criminal Information and the denial of a motion for judgment of acquittal, these claims are also waived. --------
We review claims regarding the sufficiency of the evidence by considering 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." Commonwealth v. Melvin , 103 A.3d 1, 39 (Pa. Super. 2014). Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence. Id. In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder. Id. at 39-40.
"A person commits [REAP,] 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. REAP "is a crime directed against reckless conduct entailing a serious risk to life or limb out of proportion to any utility the conduct might have." Commonwealth v. Vogelsong , 90 A.3d 717, 719 (Pa. Super. 2014) (citation and quotation marks omitted). "A person acts in a reckless manner when he consciously disregards a substantial and unjustifiable risk." Id. (citing 18 Pa.C.S. § 302(b)(3)).
The Honorable Eleni Dimitriou Geishauser, sitting as the trial court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing the record and relevant case law in addressing Appellant's sufficiency claim. We, thus, affirm on the basis of the trial court's May 10, 2017 Opinion. See Trial Court Opinion, 5/10/17, at 2-5 (concluding that sufficient evidence supported the REAP conviction because, inter alia, (1) Appellant conceded the firearm was loaded during his testimony at trial; (2) the police officer who recovered the firearm from Appellant also testified that it was loaded; and (3) there is no supporting authority for Appellant's novel theory).
Viewing the totality of the evidence in the light most favorable to the Commonwealth as the verdict winner, it is clear that the Commonwealth proved each element of REAP. Appellant's sufficiency challenge, thus, fails.
The parties are instructed to attach a copy of the trial court's May 10, 2017 Opinion to all future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: March 5, 2018
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