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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ROBERT WRIGHT , : : Appellant : No. 1734 EDA 2016 Appeal from the Judgment of Sentence entered on April 15, 2016 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP
- 51
- CR
- 0013952
- 2014; CP
- 51
- CR
- 0013953
- 2014; CP
- 51
- CR
- 001 3954
- 2014; CP
- 51
- CR
- 0013955
- 2014; CP
- 51
- CR
- 0013956
- 2 014 BEFORE: PANELLA, SOLANO and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J. : FILED NOVEMBER 15, 2017 Rober t Wright ( “ Wright ” ) appeals from the judgment of sentence entered following his conviction of one count each of possession of a firearm prohibited, firearms not to be carried without a license, carrying a firearm on a public street in Philadelphia and poss ession of an instrument of crime, and four counts of recklessly endangering another person. 1 We affirm. In its Opinion, the trial court summarized the factual and procedural history underlying the instant appeal. See Trial Court Opinion, 10/3/16, at 1
- 3. We adopt the trial court ’ s recitation for the purpose of this appeal. See id. Wright presents the following claims for our review: [1.] With respect to the charges of carrying a firearm without a license, persons not to possess firearms, and carry ing a firearm

1 See 18 Pa.C.S.A. §§ 6105, 6106, 6108, 907, 2705.J - S57042
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[on a public street] in Philadelphia, was the verdict against the weight of the evidence and so contrary to the evidence that it shocks one ’ s sense of justice where[] a) t he Commonwealth ’ s evidence at trial consisted of no physical, forensic, o r scientific evidence establishing [Wright ’ s] possession or use of a firearm guilt; b) n o firearm or evidence related to a firearm was recovered from [Wright , ] or discovered during an una nn ounced search of [Wright ’ s] home; and c) [Wright] testified credibly a t trial that he did not possess a firearm? [2.] With respect to the [four counts] of recklessly endangering another person ..., was the verdict [] against the weight of the evidence and so contrary to the evidence that it shocks one’s sense of justice where[] a) the Commonwealth’s evidence at trial consisted of no physical, forensic, or s cientific evidence establishing [Wright’s] possession or use of a firearm guilt; b) no firearm or evidence related to a firearm [,] as recovered from [Wright] or discovered during an unannounced search of [Wright’s] home; c) [Wright] testified credibly at tria l that he did not possess a firearm; and[] d) assuming arguendo that the weight of the evidence indicates that no firearm was used by [Wright] during the alleged incident, no one was placed in danger of death or serious bodily injury [,] as required to sustai n a conviction for [violating 18 Pa.C.S.A.] § 2705? Brief for Appellant at 6. In the Argument section of his brief, Wright addresses his two claims together. Wright challenges his convictions as against the weight of the evidence , because “there is no forensic evidence whatsoever linking [him] toJ - S57042
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a gun .” Id. at 22. Wright asserts that there was no ballistics evidence recovered from the scene, despite a thorough search by police officers, “who arrived at the scene within minutes.” Id. Wright directs our attention to testi mony that there was no projectil e found within the tire, nor an exit hole indicating that a projectile exited the tire. Id. at 23. Wright further directs our attention to the testimony that “everything was damaged” regardi ng the damage to the tire and fe nder surrounding that portion of the car. Id. at 24. Further, Wright states that Keona Henderson testified regarding the loud “boom” she heard as the car drove up over a curb. Id. at 24
- 25. Wright additionally ar gues that the testimony regarding his possession of a firearm is similarly vague, as Kendra Forrest (“Forrest”) testified that she saw “what appeared to be the butt or bottom of a gun in [Wright’s] hand, but she could not describe the gun.” Id. at 25. Ac cording to Wright, Forrest could not tell if the object was a revolver or a semiautomatic gun. Id. Wright directs our attention to Forrest’s testimony that she did not see a gun in Wright’s hand when he ran in front of her car, moments before breaking th e window. Id. Wright asserts that “[t]he ‘gun free’ scenario in which [] Forrest hit a curb causing a flat tire as she sped away from the scene where Wright broke her window, comports with the physical evidence observed by police, the testimony of the Co mmonwealth’s civilian witnesses, and the testimony of both defense witnesses.” Id. at 26. For theseJ - S57042
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reasons, Wright contends that the trial court’s conclusion that he possessed a gun “appears flawed.” Id. at 27. In its Opinion, the trial court addresse d Wright’s challenge to the verdict as against the weight of the evidence, and concluded that it lacks merit. See Trial Court Opinion, 10/3/16, at 3
- 7. We agree with the sound reasoning of the trial court, as set forth in its Opinion, and discern no error or abuse of discretion in this regard. See id. We therefore affirm on the basis of the trial court’s Opinion wi th regard to Wright’s claims. See id. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/1 5/2017

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# I I I : CP-Sl-CR-0013952-2014 : CP·Sl-CR-0013953-2014 : CP-51-CR;.0013954-2014 : CP-51-CR-0013955-2014 : CP-Sl·CR-0013956·2014 : PIDLADELPIDA COURT : OF COMMON PLEAS : CRIMINAL TRIAL DIVISION 

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# FILED

OPINION ROBERT WRIGHT 

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On February 10, 2016 \ following a waiver trial, Appellant was found guilty of numerous crimes under the above Bill and Term Numbers. On CP-51-CR-0013952-2014, he was found



### I guilty of Possession of a Fuleann Prohibited, 18 Pa.C.S § 6105, Firearms not to be Carried

. I Without a License, 18 

### Pa.c.s l § 6106, Carrying a Firearm on a Public Street, 18 Pa.C.S § 6108,



### i Possessing an Instrument of : crime Generally, 18 Pa.C.S § 907, and Recklessly Endangering



### I Another Person (REAP), 18 ija.C

. S § 2705. On CP-51-CR-0013953-2014, CP-51-CR-0013954-

1 2014, and CP-51-CR-001395 J° 2014, he was found guilty of single counts of REAP on each Bill of Information. Finally, on c r -51-CR-0013956-2014, he was convicted of Simple Assault, 18 Pa.C.S § 2701, and REAP. O ~ April 15, 2016, this Court imposed an aggregate sentence of five



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# I I Ii\{ THE COURT OF COMMON PLEAS 

### Criminal Appeals 

### Unit FIRST J]UDICIAL DISTRICT OF PENNSYL 

### v ANIA 

### First Judicial District of PA TRIAL DIVISION-CRIMINAL SECTION 

### I COMMONWEALTH OF JiENNSYLV ANIA



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# I I CP
- 51-CR-0013952-2014 Comm

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. Wright, fob e rt Opinion i 

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# 11111 I I 1111111 7886059911 i MCCAFFERY,J 

### I I Robert Wright (hereinafter "Appellant") has filed an appeal from the order issued by this

I Court on April 15, 2016, imposing judgment of sentence. For the reasons set forth below it is



### I suggested that the said order ~e affirmed. I PROCEDURAL IDSTORY I ! Circulated 10/17/2017 03:07 PM2 I Terrell died after the incident; his d th was unrelated to the instant matter. 2 Ms. Forrest indicated that she saw e handle of the gun. (N.T

. 2/10/16, 21,41). 3 Ms. Forrest l a ter ascertained that a t eon her car had been flattened and Police collected the tire as evidence. (N

. T. 2/10/16, 9-lO)

. police and told them what App Hant had done to her car. (N

. T. 2/10/16, 22)

. a short distance away and cont cted the police. (N.T. 2/10/16, 22). She later was interviewed by a hospital because he suffered uts from the broken glass. (N.T. 2/10/16, 23). Ms. Forrest drove front passenger window, whic showered everyone in the car with glass, after which Ms. Forrest heard a "pow

. " (N

. T. 2/10/16 18, 25)

. 3 Terrell was sitting in the passenger seat and had to go to believed to be a revolver. (N. i • 2/10/16, 18, 22, 33). 2 When he reached the car he smashed the 2/10/16 , 17). As Ms. Porrest was riving away, Appellant ran toward her car holding a gun she argument with Appellant, cli bed into Ms. Forrest's car, who began driving home. (N.T. 2/10/16, 15, 90): 1 Before the left, Appellant began threatening to slap everyone there

. (N.T. 

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## I I Cartwright, who at some po· t, while the other argument was taking place, had gotten into an (N

. T. 2/10/16, 13-15), Ms. F rrest, her two children, another child, and a man named Terrell 10, 19). When the party wa ending, two women got into an argument outside the property. friend's house located at 151 , East Cayuga Street in Northeast Philadelphia. (N.T. 2/10/16, 9- On October 18, 2014, during the early evening, Ms. Kendra Forrest attended a party at a FACTUAL HISTORY thereafter filed a timely ap eal and a court
- ordered Pa.R.A.P 1925(b) Statement of Matters hallenging the weight of the evidence. Appellant filed a post-sente ce motion, which this Court denied on May 19, 2016. Appellant to eleven years' incarceratf n. (N.T. 4/15/16, 31). Following the imposition of sentence,3 4 Ms
. Henderson stated that she saw e bottom or handle of the gun . (N.T. 2/ I0/16. 52, 56)

. evidence. Specifically, with r spect to the three convictions under the Uniform Firearms Act, he In his 1925(b) stateme t , Appellant argues that the verdicts were against the weight of the DISCUSSION Appellant fled the see e before the police arrived. (N.T. 2/10/16, 93, 114-115). tire, and broke the window on the car with his hand. (N.T. 2/10/16, 93, 95-96). testified that Appellant was

_ n t in possession of a gun during the incident , did not shoot at the He also presented the estimony of his grandfather, Frederick Cartwright. Mr. Cartwright angered him by threatening to return and get him

. (N.T. 2/10/16, 113). break. (N.T. 2/10/16, 113-11 , 118). Appellant testified that he smacked the car because Terrell with the palm of his hand, he enied possessing a gun and said that he did not expect the glass to full of glass. (N.T. 2/10/16, 6 -66, 71). Appellant testified in i own defense. Although he admitted breaking the glass 

### on the 

### car spent projectile, a gun, or o r ballistic evidence

. (N

. T
. 2/10/l6, 64 )

. The car, however, was Police investigation o the car and tire, which was flat, did not result in the recovery of a over everyone in the car. (N

. . 2/10/16, 53). Appellant shoot at a tire on e car. (N.T. 2/10/16, 52). The glass from the window sprayed all what Ms. Henderson believ d to be a gun. (N.T. 2/10116, 52). 4 Ms. Henderson then saw 51)

. Terrell then began yellin at Appellant, who ran up to the car and smashed the window with Appellant retrieve something from under a car and run toward Ms. Forrest's car. (N.T. 2/10/16, everyone. (N

. T
. 2/10/16, 4 -51). After her mother began driving away, Ms. Henderson saw argument between Appellan and Terrell that started after Appellant threatened to "smack" Ms. Keona Henderso , Ms. Forrest's daughter, also attended the party and witnessed theCommonwealth v. Jarowecki, i 923 A.2d 425, 433 (Pa. Super. 2007). The trier of fact is free to The initial determination regarding the weight of the evidence is for the fact-finder. that right may be given another opportunity to prevail." (citation omitted)).

4 to the evidence as to shock one's sense of justice and the award of a new trial is imperative so evidence claim is reserved for extraordinary circumstances, when the jury's verdict is so contrary also Commonwealth v. Sanchez, 36 .3d 24, 27 (Pa. 2011) (stating that "[rjelief on a weight of the Commonwealth v. Clay, 64 A,.3d 1049, 1055 (Pa. 2013) (emphasis and citations omitted); see

Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One i of the least assailable reasons for granting or denying a new trial is the lower court's convict ion that the verdict was or was notl against the weight of the evidence and that a new trial should be granted in the interest of justice. The standard in reviewing a weight of the evidence claim is well-settled: [18 Pa.C.S.] § 2705. one was placed in danger of death or serious bodily injury as required to sustain a conviction for the evidence indicates that 

### no firearm was used by [Appellant] during the alleged incident, no same three reasons set forth inlhis first claim. He further argues that "assuming that the weight of Regarding his convictions forlREAP, he submits that the verdicts shock the conscience for the possessed a firearm;. He also 'argues that he testified credibly that he did not possess a firearm. evidence that Appellant possessed or used a gun or present any scientific evidence that Appellant recover a firearm from Appellant's person or during a search of his home or find any physical contends that the guilty verdicts shock the conscience because the Commonwealth did not"the jury obviously chose to 

### i credit the Commonwealth's evidence and to reject the defense

discretion in denying relief on l weight claim where "issue was ultimately one of credibility" and l

5 here were shocking. See Commonwealth v. That], 830 A.2d at 528 (trial court did not abuse its . . tire flattened. Thus, it is submitted that it simply cannot be said that this Court's determinations was found in Appellant's possession was considered by this Court. However, the absence of such evidence did not render the verdicts shocking to the conscience because Appellant fled the scene after the incident and 

### there was no 

### other plausible reason 

### why the window shattered 

### or the The lack of physical evidence that a gun was used in this case and the fact that no gun ; that the window had been smashed and the tire flattened was introduced at trial. ; to smash the front passenger window of the complainants' car and that they then heard a pop and experienced a flat tire. Ms. Henderson added that she saw Appe11ant fire the weapon. Evidence ' testimony that they observed l the bottom or handle of a gun in Appellant's hand, which he used 

# I I i credible and Appellant's to 

### be self-serving and not truthful especially with respect to his claim that he broke the window with the palm of his hand. Both complainants presented similar Instantly, this Court d~termined that Appellant's weapons convictions did not shock the conscience because this Court found the testimony of the Commonwealth's fact witnesses ! Super. 2004). so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, weight of evidence claims shall be ~ ejected. Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. judgment for that of the fact-finder, Commonwealth v . Small, 741 A.2d 666, 672 (Pa. 1999). When the challenge to the ! weight of the evidence is predicated on the credibility of trial testimony, appellate review of a trial court's decision is extremely limited. Unless the evidence is 

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727 (Pa.Super, 2003) (citing Commonwealth v. Trowbridge, 395 A.2d 1337, 1340 (Pa.Super. 1978)). Since the crime of REAP "is a crime of assault which requires the 'creation of danger' ", ; i i to another person, of death or serious bodily injury." Commonwealth v. Reynolds, 835 A.2d 720, offense requires proof for four elements: "1) a mens rea recklessness, (2) an actus reus some may place another person in danger of death or serious bodily injury." 18 Pa.C.S.A. § 2705. This recklessly endangers another [ person when he "recklessly engages in conduct which places or

'conduct,' (3) causation 'which places,' and (4) the achievement of a particular result 'danger,' I ' relief because this Court did f ~ nd that Appellant possessed a firearm during the incident.
i i It is noted that even h ~ d this Court determined that Appellant did not possess a firearm during the incident, the 

### REAf convictions would not have shocked the conscience. A person convictions were against the weight of the evidence should be found not to entitle Appellant to of Appellant's testimony. Thus, the fourth reason submitted by Appellant as to why the REAP because this Court did find that Appellant possessed and used a gun despite the lack of any corroborative evidence based pn the credible testimony of the two complainants and the rejection based on a cold record for that of the Oury]") (citation omitted). Accordingly, it is respectfully suggested that Appellant's claim with respect to this issue be deemed lacking in merit. With regard to Appellant' s second weight claim, it is suggested that no relief is due evidence are concerned, it is j not the function of the appellate court to substitute its judgment Lyons, 833 A.2d 245, 259 (Pa.Super, 2003) "Where issues of credibility and weight of the i i asserted verdict was based on contradictory and unreliable testimony, as these issues were fully explored at trial and jury credited testimony of Commonwealth witnesses); Commonwealth v. theory of the case"); Gibsori, 720 A.2d at 480-81 (appellant's weight claim failed where he
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Date: 

# frJ/~/Jo/& j Based on the foregoing, the order imposing judgment of sentence should be affirmed. ' CONCLUSION

BY THE COURT , reasons, Appellant should be denied relief with respect to this claim. driver could have lost control of the vehicle and crashed. Therefore, for all of the foregoing crime. Appellant's act also exposed those in the car to death or serious bodily injury because the 11, 12 (Pa.Super. 1985). See also Trowbridge, 395 A

. 2d at 1340. Appellant, by smacking the window of a moving car occupied with five persons with a i ! ' force sufficient to shatter the

. window, manifested the reckless intent necessary to make out the i J



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# i I "there must be an ' actual present ability to inflict harm,' "Commonwealth v. Rivera, 503 A.2d8 

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# I James Molinari, Esquire Hugh Burns, Esquire Chief-Appeals Unit Office of the Philadelphia District Attorney Three South Penn Square Philadelphia, PA 19107 James R. Lloyd, Esqui r e One Penn Center-Suite 999 1617 JFK Blvd. Philadelphia, PA 19103 true and correct copy of the attached opinion was served upon the following: I, James Molinari, Esqbre, Law clerk to the Honorable Daniel D. Mccaffery hereby certifies that on the ] /7.t,:; 

### t day of 

## {j~ 7 , 2016, by first class mail, postage prepaid, a 

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# I CERTIFICATION OF SERVICE