J-A04010-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANDRE PRIETO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1410 EDA 2023

Appeal from the Judgment of Sentence Entered December 9, 2022

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No: CP-51-CR-0001671-2022

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY STABILE, J.: FILED MAY 7, 2024

Appellant Andre Prieto (“Appellant”) appeals from the judgment of 

sentence imposed on December 9, 2022, as made final by the denial of his 

post-sentence motion on April 4, 2023. Upon review, we affirm.

On March 10, 2021, Appellant entered a corner store located at 556 East 

Wyoming Avenue in the City of Philadelphia to purchase a tobacco product. 

N.T., Bench Trial, 8/17/22, at 18. The cashier, Alondra Cruz (“Cruz”),

informed Appellant they were out of his requested item and suggested a 

different one. Id. at 18-19. Appellant then screamed and argued with Cruz, 

during which he told her, “I’m not alone,” and pulled what she believed was a 

firearm from his waistband. Id. at 19. Appellant did not point the weapon at 

Cruz. Id. at 19-20. She only saw it for a few seconds and testified it was 

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* Retired Senior Judge assigned to the Superior Court.
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shorter than eleven inches. Id. at 36, 38. Appellant ultimately made his 

purchase and left the store. Id. at 20-21. 

About four to five seconds later, Cruz heard about four gunshots. Id.

at 21. They were “[n]ot too far but not too, too close either.” Id. Cruz called 

the police and informed them that Appellant had brandished a firearm, and

that she heard gunshots seconds after he left her store. Id. at 22. Cruz said 

she was familiar with the sound of gunshots from when she lived in Puerto 

Rico and she had heard gunshots in the area before. Id. at 32, 37. 

Detective Richard Lesinski (“Lesinski”) arrived on scene approximately 

30 to 60 minutes after the 911 call. Id. at 40. While searching the area, he 

found four 45-caliber cartridge casings in the alley behind 542 East Luray 

Street, about two and a half blocks from Cruz’s corner store. Id. at 43, 53. 

Two bullets struck a second-floor window of a home. Id. at 47. No other 

projectiles or cartridge casings were found in the surrounding blocks. Id. at 

54-55. Video surveillance showed Appellant walking toward 542 East Luray 

Street when he left the corner store. Id. at 55. 

Lesinski assembled a photo array, and Cruz identified Appellant as the 

person who brandished a weapon at her. Id. at 50. On March 24, 2021, 

Lesinski obtained and executed a search warrant of Appellant’s home, and

nothing was recovered. Id. at 56-57. Nevertheless, on February 1, 2022, 

Appellant was arrested and charged with: (1) firearms not to be carried 

without a license; (2) carry firearms in public in Philadelphia; (3) recklessly 
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endangering another person (“REAP”); (4) discharge of a firearm into occupied 

structure; and (5) possession of firearm prohibited.1

During the non-jury trial, the Commonwealth presented the testimony 

of Detective Gregory Speck (“Speck”), a firearms expert. Id. at 59-60. Speck 

was provided a still photograph from the store’s surveillance video which 

showed Appellant holding an object in his hand.2 Id. at 61. Speck opined 

that the object was a genuine firearm.3 Id. 

Vanessa Wilder (“Wilder”) was on the phone with Appellant during the 

incident at the store and testified on his behalf. Id. at 82. Wilder and

Appellant had been friends for 23 years. Id. at 86. Her testimony 

corroborated Cruz’s testimony to the extent that Appellant and Cruz got into 

a verbal argument in the corner store. Id. at 83-85. However, Wilder did not 

hear any gunshots while she was on the phone with Appellant. Id. at 86. 

Additionally, Wilder knew Appellant to carry a loaded BB gun because 

he had been robbed on multiple occasions. Id. at 95-96. She explained that 

after Appellant was arrested, he told her the BB gun was in a bag in the 

backseat of the vehicle they shared. Id. at 92-93. Appellant asked her to 

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1 Count 4 was dismissed after a preliminary hearing for lack of evidence, and 

Count 5 was withdrawn by the Commonwealth. 

2 The record is silent as to why the surveillance video was not played and 

whether the expert was shown the video or just the still photograph in 

reaching his opinion.

3 As Speck’s testimony is at issue on appeal, it will be discussed in more detail 

below. 
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take the BB gun to his former attorney in February or March 2022.

4

 Id. 

According to Wilder, the attorney did not want the BB gun, so she put the bag

with the BB gun back in her car and forgot about it. Id. Thereafter, Wilder 

went to retrieve the bag and discovered it was missing. Id. at 94. She

believed one of her cousins stole the bag with the BB gun, as well as her taser. 

Id. at 87. As a result, she was unable to turn it over to Appellant’s current 

attorney. Id. 97-98.

At the conclusion of the non-jury trial, the trial court found Appellant 

guilty of firearms not to be carried without a license, carry firearms in public 

in Philadelphia, and REAP. Sentencing was deferred to October 28, 2022 for 

the completion of a pre-sentence investigation. Id. at 115-16. Sentencing 

was further deferred to December 9, 2022 for Appellant to provide proof of 

his past employment. See N.T., Sentencing, 12/9/22, at 3. On December 9, 

2022, Appellant was sentenced to an aggregate term of 11 1⁄2 to 23 months 

of incarceration, followed by three years of probation. 

On December 14, 2022, Appellant filed a post-sentence motion for a 

new trial and argued that the verdict was against the weight of the evidence. 

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4 At the time, Appellant had a privately retained attorney, who entered their 

appearance on February 11, 2022. The record does not contain a motion to 

withdraw or a subsequent entry of appearance. The omnibus pretrial motion 

was filed by the public defender’s office on April 6, 2022. The trial court 

erroneously stated that the defense was in constructive possession of the 

firearm and the decision not to produce it created an adverse inference that 

the weapon was operable. N.T., 6/7/23, at 5. We want to be clear that, based 

on the testimony, Appellant’s current attorney did not have constructive 

possession of the weapon. 
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See Post-Sentence Motion, 12/14/22. The trial court denied the motion, and 

this timely appeal followed. Appellant and the trial court have complied with 

Pa.R.A.P. 1925. Appellant raises three issues for our review:

1. Was the evidence insufficient to sustain convictions under the 

Uniform Firearms Act where the Commonwealth failed to prove 

beyond a reasonable doubt that the object [Appellant] 

possessed was a firearm?

2. Was the evidence insufficient to sustain a conviction for 

recklessly endangering another person where the 

Commonwealth failed to prove beyond a reasonable doubt that 

the purported firearm possessed by [Appellant] was loaded 

with live ammunition such that it put another person at risk of 

death or serious bodily injury?

3. Did the [trial] court abuse its discretion in denying [Appellant]’s 

motion for a new trial where the verdict was so against the 

weight of the evidence as to shock the conscience?

Appellant’s Brief at 3.

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 by the 

Commonwealth need not preclude every possibility of 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. 
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Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa. Super. 2011) (en banc) 

(internal citations omitted).

In his first claim, Appellant contends that the evidence is insufficient to 

sustain his convictions of (1) firearms not to be carried without a license (18 

Pa.C.S.A. § 6106), and (2) carrying firearms on public streets or public 

property in Philadelphia (18 Pa.C.S.A. § 6108). Specifically, Appellant argues

that the Commonwealth failed to prove that the object he possessed was a 

firearm. See Appellant’s Brief at 16. He further argues that Speck’s testimony 

“was equally consistent with [Appellant] possessing a BB gun inside the store 

as with his possessing a genuine firearm,” and “a conviction based on evidence 

in equipoise cannot stand.” Appellant’s Brief at 18. We disagree.

For the charge of firearms not to be carried without a license, the 

Commonwealth must prove: (1) that the weapon was a firearm; (2) that the 

firearm was unlicensed; and (3) that the firearm was concealed on or about 

the person outside of the home or place of business. 18 Pa.C.S.A. § 6106; 

see also Commonwealth v. Hewlett, 189 A.3d 1004, 1009 (Pa. Super. 

2018), appeal denied, 197 A.3d 1176 (Pa. 2018). To sustain a conviction for 

carrying firearms on public streets or public property in Philadelphia, the 

Commonwealth must prove that a defendant was in possession of “a firearm, 

rifle or shotgun at any time upon the public streets or upon any public property 

in [Philadelphia]” without a license. 18 Pa.C.S.A. § 6108(1). For both 

charges, the Commonwealth must prove Appellant possessed a “firearm”, 

which is defined as:
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Any pistol or revolver with a barrel length less than 15 inches, any 

shotgun with a barrel length less than 18 inches or any rifle with 

a barrel length less than 16 inches, or any pistol, revolver, rifle or 

shotgun with an overall length of less than 26 inches. The barrel 

length of a firearm shall be determined by measuring from the 

muzzle of the barrel to the face of the closed action, bolt or 

cylinder, whichever is applicable. 

18 Pa.C.S.A. § 6102 (definitions). 

While styled as sufficiency claims, Appellant is in fact challenging the 

trial court’s credibility determinations, and he is essentially asking us to 

reweigh Speck’s testimony and the still photograph. But as mentioned above, 

the trial court’s credibility determinations must be upheld as long as they are 

supported by the record, and the evidence must be construed in the way most 

favorable to the verdict winner.

In this case, the trial court found that the Commonwealth proved the 

object in Appellant’s hand was a firearm based on the testimony of Speck and 

Wilder. See Trial Court Opinion, 6/7/23, at 4. The trial court summarized the 

testimony of those witnesses as follows:

[Detective Speck] made multiple, specific observations that 

support the finding that the weapon depicted in the surveillance 

photo was a firearm. The shadowing of the recoil bushing 

indicated the firearm was real and not a BB or pellet gun molded 

from plastic. Detective Speck also relied on the different colors of 

the sight and the gun. The appearance of wooden grips confirmed 

this observation. On cross examination, Detective Speck was 

shown pictures of both real and plastic 1911s and was able to 

distinguish them. He also correctly identified a model BB gun in 

a photograph offered by the defense. 

* * * *
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The evidence consisted of more than Detective Speck’s expert 

testimony. [Appellant]’s girlfriend also testified. Vanessa Wilder 

testified that [Appellant] had told her he feared being robbed. 

Wilder also testified she had recently possessed [Appellant’s] gun, 

had told defense counsel about it, but had not produced it to 

defense counsel. The constructive possession of the firearm by 

the defense, and the decision by the defense not to produce it at 

trial supports an adverse inference that the gun was an operable 

firearm, consistent with Detective Speck’s expert testimony.

Id. (internal citations omitted).5

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5 We note that the trial court’s 1925(a) opinion included facts not supported 

by the record. First, Speck was not able to distinguish between both real and 

plastic 1911 pistols. During cross examination, Speck was shown four 

photographs and asked to determine whether the object was a firearm or a 

BB or pellet gun. See N.T., 8/17/22, at 73-76. Speck was also unable to 

identify the object in the first two photographs because “there is no picture of 

the bore” and “the bore is not pointed towards the viewer.” Id. at 74. Speck 

was shown a photograph of a BB gun and testified that even though its bore 

was partially visible in the photo, “it’s a black and white copy so it lacks 

shadowing that I could normally see,” implying that he would be unable to 

identify it if he did not already know what it was. Id. at 76. 

Second, while Speck correctly identified a photograph as a BB gun, he testified 

that it was because of the “caliber marking on the side .177 caliber, which 

means this is a BB gun,” not based on any distinguishable feature. Id. Speck 

admitted that the three photographs of unidentified objects had similar 

features with different writing on the side. Id. at 75. 

Lastly, Wilder did not directly testify that Appellant possessed a firearm. Id.

at 87. She instead testified that Appellant was known to carry a BB gun. Id. 

Moreover, the trial court incorrectly stated that defense counsel made a 

conscious decision to not produce the weapon. Wilder testified that she had 

attempted to provide the BB gun to Appellant’s former attorney when he was 

arrested in February or March 2022. Id. at 88. By the time Appellant’s current

attorney asked Wilder about the BB gun, it had already been stolen from her 

vehicle. Id. at 93-94, 97-98. These inaccuracies, however, have no effect on 

our disposition in this case because the record nonetheless contains evidence 

that supports the trial court’s findings. 
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We find that there was sufficient evidence to support the trial court’s 

finding of fact that the object in Appellant’s hand was a firearm. The question

of whether the object was a firearm is an issue of fact to be determined by 

the trier of fact. Speck identified several distinguishing features that lead to 

his conclusion that Appellant possessed a firearm: (1) a thumb actuated 

safety; (2) a black ramped rear sight; (3) a black front sight; (4) an 

unobstructed bore large enough to expel a projectile larger than a BB or a 

pellet; (5) the wooden grips; (6) the ejection port; and (7) the shadowing 

located off the top of the recoil bushing. N.T., 8/17/22, at 61-62. The fact 

that the rear and front sights are a different color than the rest of the object 

is significant because the sights on a pellet or BB gun model would be the 

same color because they are generally made of shaped molded plastic or a 

continuous piece of metal. Id. at 63-64. On a firearm, the sights are 

individual pieces that are slid into a groove cut into the metal slide and may 

be a different color than the rest of the firearm. Id. Therefore, Speck opined 

that the object in Appellant’s hand is more consistent with a firearm because 

the sights are a different color. 

Regarding the muzzle bushing, Speck explained that a pellet or BB gun 

clone of a 1911 pistol could have the same general shape as a firearm, but

would be made of molded plastic or a continuous piece of metal. Id. at 63. 

Thus, the shadowing around the muzzle bushing in the still photo of Appellant 

would not be present if the object was a pellet or BB gun model. Id. 
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Therefore, viewing the evidence in light most favorable to the 

Commonwealth, we find there was sufficient evidence to enable the trial court 

to find every element of the firearms offenses beyond a reasonable doubt. 

See Brown, supra.

In his second claim, Appellant contends that the evidence was 

insufficient to support his conviction of recklessly endangering another person 

(“REAP”). Specifically, he asserts that “the Commonwealth failed to prove 

that the item in his hand was loaded with ammunition such that it posed an 

actual risk of death or serious bodily injury.” Appellant’s Brief at 24. He 

further asserts that the Commonwealth must prove actual, present ability to 

inflict harm and not a mere apparent ability. Id. 

“A person commits [REAP] . . . 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. “Serious bodily injury” is defined as 

“[i]mpairment of physical condition or substantial pain] 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.A. § 2301 (definitions). To sustain a conviction for REAP,

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. The mens rea for [REAP] is a conscious disregard of

a known risk of death or great bodily harm to another person. 

Brandishing a loaded firearm during the commission of a 

crime provides a sufficient basis on which a factfinder may 

conclude that a defendant proceeded with conscious 
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disregard for the safety of others, and that he had the 

present ability to inflict great bodily harm or death. 

Commonwealth v. Hopkins, 747 A.2d 910, 915-16 (Pa. Super. 2000) 

(internal citations and quotation marks omitted) (emphasis added).

Here, the trial court found sufficient evidence to convict Appellant of 

REAP:

Pointing an unloaded firearm at a person, without more, does not 

constitute reckless endangerment, but pointing a loaded firearm 

does. Commonwealth v. Gouse, 429 A.2d 1129, 1131 (Pa. 

Super. 1981). The still photo from the surveillance video shows 

[Appellant] holding the firearm in his hand above the store’s 

counter. Cruz, the store attendant, is just feet from him, on the 

other side of the counter. The surveillance video also shows 

[Appellant] had three fingers on the gun’s grip. This supports an 

inference that his index finger (not visible) was on or near the 

trigger. Finally, the testimony of [Appellant]’s girlfriend, Vanessa 

Wilder, summarized above, supports an inference the gun was 

loaded. 

Trial Court Opinion, 6/7/23, at 4-5.

Viewing the evidence in the light most favorable to the Commonwealth, 

we agree with the trial court that there is sufficient evidence to support the 

REAP conviction. As we previously determined that Appellant was in 

possession of a firearm, the remaining question is whether it was loaded and 

whether Appellant’s act of brandishing the firearm posed an actual, apparent 

ability to inflict serious bodily injury. We find that, under the circumstances 

of this case, it does. 

Although Cruz testified that Appellant did not directly aim the firearm at 

her, the still photo shows Appellant pointing the firearm over the counter. 

Since Cruz was on the other side of the counter, an inference can be drawn
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that Appellant pointed the firearm in her general direction with a conscious 

disregard for her safety, as well as a present ability to inflict great bodily harm 

or death. See Hopkins, 747 A.2d at 915-16.

 Moreover, during the act of brandishing the firearm, Appellant told Cruz 

“I’m not alone,” which could be interpreted as a threat. Although Wilder 

testified that she knew Appellant to carry a loaded BB gun and not a firearm, 

her testimony supports the inference that Appellant carried a loaded weapon. 

Therefore, we find there was sufficient evidence for the trial court as the factfinder to find every element of the crime was proven beyond a reasonable 

doubt. See Brown, supra.

Alternatively, Appellant contends that the verdicts were against the 

weight of the evidence. Specifically, he claims that “the conviction[s] [were] 

based entirely on speculation and conjecture, unsupported by any physical 

evidence.” Appellant’s Brief, at 26. We disagree. 

A challenge to the weight of the evidence concedes that there was 

sufficient evidence to sustain the verdict. See Commonwealth v. Widmer, 

744 A.2d 745, 751-52 (Pa. 2000). Our standard of review is well-settled:

The weight of the evidence is exclusively for the finder of fact who 

is free to believe all, part, or none of the evidence and to 

determine the credibility of witnesses. An appellate court cannot 

substitute its judgment for that of the finder of fact. Thus, we 

may only reverse the jury’s verdict if it so contrary to the evidence 

as to shock one’s sense of justice.

Commonwealth v. Begley, 780 A.2d 605, 619 (Pa. 2001) (internal citations 

omitted).
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Here, Appellant fails to establish, and our review of the record fails to 

convince us, that the trial court’s verdicts were so contrary to the evidence as 

to shock one’s sense of justice. Thus, no relief is due. 

Judgment of sentence affirmed. 

Date: 5/7/2024