J-S06045-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

KEVIN GREEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 905 EDA 2021

Appeal from the Judgment of Sentence Entered April 12, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0004823-2019

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED JUNE 8, 2022

Appellant, Kevin Green, appeals from the judgment of sentence entered 

in the Philadelphia County Court of Common Pleas, following his bench trial 

convictions for possession of a firearm, possession of an instrument of crime

(“PIC”), terroristic threats, simple assault, and recklessly endangering another 

person (“REAP”).

1

 We affirm. 

The trial court set forth the factual and procedural history of this case 

as follows:

[Gladys] Hernandez testified that on June 12, 2019, she was 

visiting her aunt’s house at 3013 North Darien Street in 

Philadelphia, Pennsylvania. At approximately 6:00 p.m., 

Ms. Hernandez was sitting on a bench outside of her aunt’s 

home with her two-year-old niece when she noticed 

Appellant hop out of a car and walk towards her. Appellant 

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1 18 Pa.C.S.A. §§ 6105(a)(1), 907(a), 2706(a)(1), 2701(a), and 2705,

respectively.
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then said, “Bitch, where’s my money,” cocked his gun back 

and smacked Ms. Hernandez with his gun on the left side of 

her face as he told her that he was going to “blow [her] head

off.” After striking Ms. Hernandez with his gun, Appellant 

threw the gun into a parked car and ran off. (N.T. Trial, 

9/29/20, at 8, 10-11). 

After the incident, Ms. Hernandez went to the police station 

to file a report. Detective [Luz] Varela took pictures of Ms. 

Hernandez’s injuries to her lip and the left side of her face. 

The pictures show redness on the left side of her face as well 

as the bruising and swelling of her lip. On June 13, 2019, 

Ms. Hernandez went to the hospital to get treatment for her 

injuries. Ms. Hernandez was released from the hospital on 

the night of June 13, 2019, and was given medicine for her 

pain. (Id. at 18). 

[Maritza] Gonzalez, who is Ms. Hernandez’s aunt, owns the 

home in front of where the incident took place. Ms. 

Gonzalez testified that around 6:00 p.m., she heard Ms. 

Hernandez screaming from the front of her house. Ms. 

Gonzalez went outside and found Ms. Hernandez crying and 

holding the side of her face with blood coming out of her 

mouth. Ms. Gonzalez then saw Appellant standing out front 

of her house with a gun in his hand while threatening Ms. 

Hernandez. When Ms. Gonzalez asked what happened, 

Appellant told her that Ms. Hernandez “stole his money,” 

and that “he wants his money back or it’s her life.” 

Appellant then ran off and Ms. Gonzalez took Ms. Hernandez 

inside to treat her injuries. (Id. at 48-52).

Officer [Barbara] McNally testified that around 6:00 p.m. on 

June 12, 2019, Ms. Hernandez came into the 25th district to 

file a police report. Officer McNally stated that Ms. 

Hernandez appeared to be distraught and had bruising on 

her face and lip. Ms. Hernandez explained to Officer McNally 

that Appellant hit her on the left side of her face with his 

gun and threatened to kill her. After interviewing Ms. 

Hernandez about the incident, Officer McNally filed a 75-48D 

police report. (Id. at 61-63).

Detective Varela testified that around 6:00 p.m., he 

conducted an interview with Ms. Hernandez to investigate 

the incident. Detective Varela took photographs of Ms. 
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Hernandez’s injuries and advised her to get a Protection 

from Abuse (PFA) order against Appellant. Several days 

later, Appellant was arrested after he was served with the 

PFA order. Detective Varela then obtained a search warrant 

for Appellant’s home, pursuant to which he searched the 

premises and seized a magazine loaded with ammunition, a 

holster, and several rounds of ammunition. (Id. at 66-

69)[.]

The Commonwealth lastly presented the testimony of 

Detective Paul Dixon, who testified that he helped Detective 

Varela execute the search warrant for Appellant’s home. 

Detective Dixon testified that he and Detective Varela 

recovered a magazine loaded with ammunition laying in 

between neatly stacked jeans in Appellant’s closet, a 

holster, and several rounds of ammunition. Detective Dixon 

then placed these items on a property receipt. (Id. at 74-

76).

At Appellant’s waiver trial on September 29, 2020, the 

Commonwealth incorporated the above-referenced 

testimony and rested its case, upon which Appellant moved 

for a judgment of acquittal. The [c]ourt granted Appellant’s 

motion for a judgment of acquittal as to aggravated assault, 

firearms not to be carried without a license, and carrying 

firearms in public. Subsequently, this [c]ourt heard closing 

arguments and found Appellant guilty of the remaining 

charges.

(Trial Court Opinion, 9/14/21, at 2-4) (record citation formatting altered). On 

April 12, 2021, the court sentenced Appellant to an aggregate term of five to

ten years of incarceration. Appellant filed a timely notice of appeal on April 

27, 2021. On August 10, 2021, the court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).2 

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2 The court initially issued a Rule 1925(b) order on April 29, 2021. Trial 

counsel subsequently filed a petition to withdraw because he had not been 

(Footnote Continued Next Page)
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Pa.R.A.P. 1925(b). On September 1, 2021, Appellant filed a timely Rule 

1925(b) statement. 

Appellant raises one issue on appeal:

Was the evidence insufficient to sustain the REAP conviction 

because the Commonwealth failed to prove beyond a 

re[a]sonable doubt that Appellant consciously disregarded a 

known risk of death or great bodily harm to another 

person[?]

(Appellant’s Brief at 3).

Appellant argues the Commonwealth failed to establish that he 

consciously disregarded a known risk of death or great bodily injury. Appellant 

asserts that although he had the means to do so, he consciously went out of 

his way not to kill or severely injure the victim. Appellant concludes the 

Commonwealth presented insufficient evidence to sustain his REAP conviction, 

and this Court must vacate his judgment of sentence. We disagree.

Our standard of review for a challenge to the sufficiency of evidence is 

as follows:

The standard we apply in reviewing the sufficiency of the 

evidence is 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. In 

applying [the above] test, we may not weigh the evidence 

and substitute our judgment for the fact-finder. In addition, 

we note that the facts and circumstances established by the 

Commonwealth need not preclude every possibility of 

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retained on appeal. After the court appointed appellate counsel, the court 

issued the August 10, 2021 order directing Appellant to file a Rule 1925(b) 

statement.
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innocence. Any doubts regarding a defendant’s guilt may 

be resolved by the fact-finder unless the evidence is so weak 

and inconclusive that as a matter of law no probability of 

fact may be drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proving every 

element of the crime beyond a reasonable doubt by means 

of wholly circumstantial evidence. Moreover, in applying the 

above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the 

[trier] of fact while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to believe 

all, part or none of the evidence.

Commonwealth v. Holt, 270 A.3d 1230, 1233 (Pa.Super. 2022) (quoting 

Commonwealth v. Jackson, 215 A.3d 972, 980 (Pa.Super. 2019)).

The Crimes Code defines REAP in relevant part as follows:

§ 2705. Recklessly endangering another person

A person commits 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.A § 2705. “Thus, the crime requires (1) a mens rea of recklessness, 

(2) an actus reus [of] some ‘conduct,’ (3) causation ‘which places,’ and (4) 

the achievement of a particular result ‘danger,’ to another person, of death or 

serious bodily injury.” Commonwealth v. Reynolds, 835 A.2d 720, 727 

(Pa.Super. 2003) (quoting Commonwealth v. Trowbridge, 395 A.2d 1337, 

1340 (Pa.Super. 1978)).

The mens rea required for REAP is “a conscious disregard of a known 

risk of death or great bodily harm to another person.” Commonwealth v. 

Klein, 795 A.2d 424, 427-28 (Pa.Super. 2002) (citation omitted). “Serious 

bodily injury” is “bodily injury which creates a substantial risk of death or 
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which causes serious, permanent disfigurement, or protracted loss or 

impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. § 

2301. Significantly, REAP “is a crime of assault which requires the creation of 

danger” so “there must be an actual present ability to inflict harm.” 

Reynolds, supra at 727-28. Mere apparent ability is not enough because 

danger, and not the apprehension of danger, must be created. Id. at 728 

(quoting Trowbridge, supra). What constitutes sufficient evidence for a 

REAP conviction depends on the facts and circumstances of the individual 

case. Commonwealth v. Hartzell, 988 A.2d 141 (Pa.Super. 2009).

Instantly, the court analyzed Appellant’s sufficiency claim for REAP as 

follows:

Here, the testimony of both Ms. Hernandez and Ms. 

Gonzalez established that Appellant placed Ms. Hernandez 

in danger of death or serious bodily injury. Appellant 

created such danger when he struck Ms. Hernandez across 

the face with his cocked gun while simultaneously 

threatening to kill her. Appellant presented an actual ability 

to inflict harm that was real and not merely apparent as he 

repeatedly uttered threats such as “she stole my money” 

and “she is going to pay for it.” Ms. Hernandez had no 

reason to believe that Appellant was incapable of carrying 

out his death threat of “blowing her head off.”

Furthermore, upon striking Ms. Hernandez with a metal gun 

to a vital part of her body, Appellant consciously disregarded 

the known risk of inflicting serious bodily injury. Appellant 

was clearly in a position where he could have shot Ms. 

Hernandez. Moreover, the utility of Appellant’s conduct to 

“get his money back” was greatly outweighed by the risk of 

inflicting serious bodily injury upon Ms. Hernandez.

(Trial Court Opinion at 5-6) (record citations omitted).
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The record supports the trial court’s analysis that Appellant consciously 

disregarded a known risk of death or serious bodily harm to another person

by striking Ms. Hernandez in the face with a cocked gun. See Klein, supra. 

Although Appellant insists that he did not actually kill or cause Ms. Hernandez 

serious bodily injury, Appellant’s creation of that danger satisfies the statutory 

requirements. See 18 Pa.C.S.A § 2705; Reynolds, supra. Viewed in the 

light most favorable to the Commonwealth as verdict-winner, the evidence 

was sufficient to support Appellant’s conviction for REAP. See Holt, supra. 

Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/08/2022