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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

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- 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 se ntence, which was entered following his non-jury conviction of simple assault and recklessly endangering another person (“REAP”). 1,2 Before us, Orti z challenges the sufficiency of the evidence to sustain his RE AP conviction. We affirm. The evidence adduced at trial, viewed in the light m ost favorable to the Commonwealth as verdict-winner, supports the follo wing account of the

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* Former Justice specially assigned to the Superior Cour t.

1 18 Pa.C.S. §§ 2701 and 2705, respectively.

2 Ortiz was acquitted of aggravated assault, possession of a n instrument of crime, prohibited offensive weapons, terroristic thre ats, and intimidation of a victim. See 18 Pa.C.S. §§ 2702, 907, 908, 2706, and 4952.J-S45020- 14

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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 ste ps of his house with his girlfriend and another friend. Alejo recognized Ort iz as the person who had allegedly mugged him two weeks prior to this inciden t. Accordingly, Alejo asked Ortiz not to speak to him. However, Ortiz cont inued to speak to him. Again, Alejo asked Ortiz not to speak to him and thre atened 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. S hortly thereafter, while Alejo was speaking to his girlfriend and another frien d, Ortiz returned and struck Alejo, unexpectedly, in the side of the head. A lejo testified that Ortiz ran away immediately after striking him. Alejo recei ved five stitches to repair the wound on his face. While on duty that same day, Officer Dennis Zungolo r eceived a flash around 6:40 p.m., which indicated that an offender wh o had committed an assault lived at 1905 South 5th Street. Officer Zung olo responded to the flash, and, at approximately 7:10 p.m., came upon Ort iz and stopped him for an investigation. Officer Zungolo ultimately arr ested Ortiz and transported him to Methodist Hospital, where Alejo po sitively identified Ortiz as the man who had assaulted him that day. The learned trial court summarized the procedural histo ry of this case as follows:J-S45020- 14

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A [stipulated] non-jury trial was held on March 5, 2 013 after [the trial court] accepted [Ortiz’] written and oral co lloquies waiving his right to a jury trial. [Ortiz] is illite rate and cannot read or write English. 3 He did, however[,] state that his attorney did explain the terms of the written colloq uy to him and that he signed it after the explanation. Despite his illiteracy, [Ortiz’] waiver was determined to be knowing, volunt ary, and intelligent upon [the trial court’s] conclusion of the o ral 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 Flo res Alejo, and Police Officer Dennis Zungolo for the Commonwealth , and Ernesto Ortiz, [Ortiz’] father, for the defense, [Ort iz] was found guilty [of simple assault and REAP.] On April 18, 2013, [Ortiz] was sentenced by [the tria l court] to incarceration of one to two years, to be followed by t wo years [of] reporting probation. He was also ordered to comp lete drug and alcohol rehabilitation, anger management classes[,] and undergo a mental health evaluation. His probation i s 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 appe al. The trial court ordered Ortiz to file a concise statement of errors comp lained 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: “Wa s not the evidence insufficient to convict [Ortiz] of recklessly e ndangering another

____________________________________________ 3 Although he cannot read or write English, Ortiz can sp eak and und erstand English. See N.T. at 5- 15. However, both Ortiz’s father (who testified for the defense) and the victim, Alejo, mad e use of a Spanish translator while testifying. Id. at 19, 64. Ortiz did not testify at trial.J-S45020- 14

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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 t hat there was insufficient evidence to establish that he struck the victim in the h ead. 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 Commonwea lth’s alleged failure to prove that Alejo was in danger of death o r serious bodily injury. Our standard of review in this context is well-establi shed: [O]ur applicable standard of review is “whe 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 ena ble the fact[-]finder to conclude that the Commonwealth establi shed all of the elements of the offense beyond a reasonable dou bt.” Commonwealth v. Eichinger , 915 A.2d 1122, 1130 (Pa. 2007). Additionally, when examining sufficien cy issues, “we bear in mind that: the Commonwealth’s burden may be sustained by means of wholly circumstantial evidence; th e entire trial record is evaluated and all evidence received ag ainst 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 applicabl e to cases where the evidence is circumstantial rather than direct so long as t he combination of the evidence links the accused to the crime beyond a rea sonable doubt.” Commonwealth v. Brunson , 938 A.2d 1057, 1058 (Pa. Super. 2007) (quoting Commonwealth v. Swerdlow , 636 A.2d 1173, 1176 (Pa. Super.J-S45020- 14

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1994)). “Although a conviction must be based on ‘more than mere suspicion or conjecture, the Commonwealth need not establish guil t 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 p laces 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 de fendant had an
act ual present ability to inflict harm and not merely t he 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 pl ace Alejo in danger of suffering the “serious bodily injury” required by statut e:J-S45020- 14

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The Commonwealth failed to prove beyond a reasonable doubt that this single punch created a known and foreseeable r isk 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 bo dily injury resulting from the defendant’s conduct was highly foresee able, if not immediately eviden t. Ortiz’s Brief at 9. In its Rule 1925(a) opinion, the trial court acknowledged that the injury Alejo ultimately sustained was “appare ntly minor,” but observed that this did “not negate the fact that [Orti z] 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 citation s 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 “to rn ligaments in his right shoulder”), Commonwealth v. Cottam , 616 A.2d 988, 1004 (Pa. Super. 1992) (upholding REAP conviction where defendants fai led 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 se venteen-month-old son with a belt and submerged him in cold water until the “victim be came cyanotic and turned purple from cold”), in support of h is argument. Ortiz’sJ-S45020- 14

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Brief at 9. Ortiz asserts that, “[i]n each of these case s, 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 co nduct that fall under the definition of REAP. However, such case s do not cover the entire waterfront of situations in which an REAP convict ion is valid. Instantly, Ortiz has focused his argument on the fact that Alejo did not actually suffer “serious bodily injury” as a result of Ort iz’s assault. However, as our recitation of case law above indicates, the quali ty of injury actually sustained by a victim is not determinative in this contex t. See Lawton , supra . Rather, it is the assailant’s potential, or “actual p resent ability,” to inflict serious bodily injury, that controls. See Cordoba , supra . The fact that Alejo did not ultimately “suffer serious bodily i njury” is not dispositive. Our review of Pennsylvania case law has uncovered no case s 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 s ubway 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 a s “conduct which places or may place another person in dange r of death or serious bodily injury.” Section 2705 is derive d fromJ-S45020- 14

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[S]ection 211.2 of the Model Penal Code. The comment ary 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 app el lant may have only struck the victim and another unidentified i ndividual, his action of swinging indiscriminately into a crowd of students was suff icient to establish beyond a reasonable doubt that he may have placed oth er persons in danger of serious bodi ly 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, w ho is also an assault victim, need not actually sustain “serious bodily injury” in order for a defendant’s underlying conviction to be upheld. Moreo ver, 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 t hat Ortiz targeted Alejo. With respect to the merits of Ortiz’s sufficiency challenge , we begin by noting that the evidence presented by the Commonwealt h 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 withJ-S45020- 14

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something.” See N.T. at 21. Specifically, Alejo testified that imme diately after Ortiz struck him in the face, he saw that Ortiz “h ad somet hing metal on his hand” that was covering “the four fingers” of Ortiz’s r ight 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 hi m 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 wea pon 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 d ispute about the physiological significance of the head.”), an d caught Alejo

una wares. Additionally, the injuries that Alejo sustaine d from Ortiz’s assault demonstrate that Ortiz possessed an actual ability to in flict physical harm upon Alejo, and not merely a theoretical ability to do so. Based upon the foregoing discussion, we conclude that th ere was sufficient evidence for the trial court to conclude that Ortiz committed REAP. Our case law demonstrates that a single blow to the he ad 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 o f dying”);J-S45020- 14

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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 deli vering 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,” me aning 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 b low” 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 e lucidating the potential harms that may result from single blows to the head. A lthough 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 bo dily 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 “se rious 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, whe n used in this article shall have, unless the context clearly indicates ot herwise, the meanings given to them in this section.”). Thus, Burton and Patrick are germane to this discussion for the limited purpose of est ablishing that “serious bodily injury” may result from a single blow to the head.J-S45020- 14

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injury,” these cases indicate that Ortiz’s conduct could have had that ultimate result. Here, viewed in the light most favo rable to the Commonwealth, the evidence indicates that Ortiz struck A lejo 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 wit h 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 Ale jo 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