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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 

recklessly endangering another person (“REAP”).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. 
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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 

police. Alejo testified that Ortiz responded by saying, “shut up, otherwise

[Ortiz] was going to hit” Alejo. Notes of Testimony (“N.T.”), 3/5/2013, at 

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: 
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A [stipulated] non-jury trial was held on March 5, 2013 after 

[the trial court] accepted [Ortiz’] written and oral colloquies 

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’] waiver was determined to be knowing, voluntary, and 

intelligent upon [the trial court’s] conclusion of the oral colloquy. 

[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 

Ernesto Ortiz, [Ortiz’] father, for the defense, [Ortiz] was found 

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.

Trial Court Opinion (“T.C.O.”), 10/28/2013, at 1-2. 

 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). 

Ortiz presents the following issue for our review: “Was not the 

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 5-15. However, both Ortiz’s father (who 

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. 
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person, 18 Pa.C.S. § 2705, as [Ortiz’s] single punch to the complainant’s 

head did not place the complainant in danger of death or serious bodily 

injury?” Ortiz’s Brief at 8. Ortiz does not argue that there was insufficient 

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. Rather, Ortiz’s argument focuses upon the Commonwealth’s alleged 

failure to prove that Alejo was in danger of death or serious bodily injury. 

 Our standard of review in this context is well-established: 

[O]ur applicable standard of review is “whether 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 

of the elements of the offense beyond a reasonable doubt.” 

Commonwealth v. Eichinger, 915 A.2d 1122, 1130 

(Pa. 2007). Additionally, when examining sufficiency issues, 

“we bear in mind that: the Commonwealth’s burden may be 

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 

credibility.” Commonwealth v. Markman, 916 A.2d 586, 598 

(Pa. 2007). 

Commonwealth v. Crabill, 926 A.2d 488, 490-91 (Pa. Super. 2007) 

(citations modified). “This standard is equally applicable to cases where the 

evidence is circumstantial rather than direct so long as the combination of 

the evidence links the accused to the crime beyond a reasonable doubt.” 

Commonwealth v. Brunson, 938 A.2d 1057, 1058 (Pa. Super. 2007) 

(quoting Commonwealth v. Swerdlow, 636 A.2d 1173, 1176 (Pa. Super. 
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1994)). “Although a conviction must be based on ‘more than mere suspicion 

or conjecture, the Commonwealth need not establish guilt to a mathematical 

certainty.’” Id. (quoting Commonwealth v. Badman, 580 A.2d 1367, 

1372 (Pa. Super. 1990)). 

REAP is defined as “recklessly engag[ing] in conduct which places or 

may place another person in danger of death or serious bodily injury.” 

18 Pa.C.S. § 2705. Serious bodily injury is defined as “[b]odily injury which 

creates a substantial risk of death or which causes serious, permanent 

disfigurement, or protracted loss or impairment of the function of any bodily 

member or organ.” 18 Pa.C.S. § 2301. “[T]o sustain a conviction under 

Section 2705, the Commonwealth must prove that the defendant had an 

actual present ability to inflict harm and not merely the apparent ability to 

do so. Danger, not merely the apprehension of danger, must be created.” 

Commonwealth v. Cordoba, 902 A.2d 1280, 1288 (Pa. Super. 2006) 

(citing Commonwealth v. Hopkins, 747 A.2d 910, 915-16 (Pa. Super. 

2000)). “[T]he mere fact that the victim only sustained minor injuries and 

did not sustain ‘serious bodily injury’ does not[,] ipso facto[,] establish that 

appellant’s actions did not place others in danger of such injury [pursuant to

a REAP charge].” 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 

suffering the “serious bodily injury” required by statute:
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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 

resulting from the defendant’s conduct was highly foreseeable, if 

not immediately evident.

Ortiz’s Brief at 9. In its Rule 1925(a) opinion, the trial court acknowledged 

that the injury Alejo ultimately sustained was “apparently minor,” but 

observed that this did “not negate the fact that [Ortiz] placed the victim in 

danger of serious bodily injury” inasmuch as “the outcome could have been 

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 

threatened to kill, victim, and the victim suffered “torn ligaments in his right 

shoulder”), Commonwealth v. Cottam, 616 A.2d 988, 1004 (Pa. Super. 

1992) (upholding REAP conviction where defendants failed to feed their 

children for “approximately six weeks,” which resulted in one child dying), 

and Commonwealth v. Rochon, 581 A.2d 239, 244 (Pa. Super. 1990) 

(upholding REAP conviction where defendant beat her seventeen-month-old 

son with a belt and submerged him in cold water until the “victim became 

cyanotic and turned purple from cold”), in support of his argument. Ortiz’s 
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Brief at 9. Ortiz asserts that, “[i]n each of these cases, the defendant’s 

actions led to life-threatening consequences for the victims.” Id. at 10 

(hyphen added). In the absence of such “life-threatening consequences,” 

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 

actually suffer “serious bodily injury” as a result of Ortiz’s assault. However, 

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. Rather, it is the assailant’s potential, or “actual present ability,” to 

inflict serious bodily injury, that controls. See Cordoba, supra. The fact 

that Alejo did not ultimately “suffer serious bodily injury” is not dispositive.

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 

then “started swinging [punches] indiscriminately into a crowd of students.” 

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 

“conduct which places or may place another person in danger of 

death or serious bodily injury.” Section 2705 is derived from 
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[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. Relying upon this standard, we concluded that “while appellant 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 bodily injury.” 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 

assault victim, need not actually sustain “serious bodily injury” in order for a 

defendant’s underlying conviction to be upheld. Moreover, we note that the 

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. 

With respect to the merits of Ortiz’s sufficiency challenge, we begin by 

noting that the evidence presented by the Commonwealth suggests that 

Ortiz did not merely “punch” Alejo. At trial, Alejo testified that Ortiz struck 

him with a weapon: “When[] I looked over to see him, he hit me with 
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something.” See N.T. at 21. Specifically, Alejo testified that immediately 

after Ortiz struck him in the face, he saw that Ortiz “had something metal on 

his hand” that was covering “the four fingers” of Ortiz’s right hand. Id. at 

22-23. Although Alejo could not identify precisely what Ortiz was holding in 

his hand, Alejo’s testimony consistently emphasized that Ortiz had struck 

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. 

Moreover, Ortiz’s assault was directed at Alejo’s head, see Commonwealth 

v. Alexander, 383 A.2d 887, 889 (Pa. 1978) (“[T]here can be no dispute 

about the physiological significance of the head.”), and caught Alejo 

unawares. Additionally, the injuries that Alejo sustained from Ortiz’s assault 

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) 

(upholding assailant’s conviction for aggravated assault upon basis of a 

single punch, that placed “victim . . . in real danger of dying”); 
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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 

to victim’s head).4

 Specifically, in both Burton and Patrick, the respective 

single blows to the victims’ heads were “sucker punches,” meaning that they 

were delivered without the victim’s foreknowledge. As a result, both of the 

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 

604 (stating that “the victim was unprepared for the blow” and “fell headfirst 

to the pavement without the benefit of a reflexive action to protect against 

the fall”); 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 

contends that his assault did not actually subject Alejo to “serious bodily

____________________________________________ 

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 

appeal. However, the definition of what constitutes “serious bodily injury” 

for the purposes of both aggravated assault and REAP is identical. See 18 

Pa.C.S. § 2301 (“[T]he following words and phrases, when used in this 

article shall have, unless the context clearly indicates otherwise, the 

meanings given to them in this section.”). Thus, Burton and Patrick are 

germane to this discussion for the limited purpose of establishing that 

“serious bodily injury” may result from a single blow to the head.
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injury,” these cases indicate that Ortiz’s conduct could 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 

“serious bodily injury” as the result of his actions. Thus, Ortiz’s claim fails.

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/4/2014