J-S40018-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

MICHAEL MINGO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2992 EDA 2019

Appeal from the Judgment of Sentence Entered July 31, 2018

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0008131-2017

BEFORE: SHOGAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED JANUARY 14, 2021

Appellant, Michael Mingo, appeals nunc pro tunc from the judgment of 

sentence entered in the Philadelphia County Court of Common Pleas, following 

his bench trial convictions for criminal mischief, criminal conspiracy, 

possessing instruments of crime (“PIC”), terroristic threats, and recklessly 

endangering another person (“REAP”).1 We affirm. 

The trial court opinion set forth the relevant facts of this appeal as 

follows: 

On August 21, 2017, at approximately 11:00 a.m., George 

Brooks took his car for a test drive around the 4700 block 

of Mulberry and Foulkrod Streets in Philadelphia, 

Pennsylvania, where he resided. While returning home from 

the test drive, Mr. Brooks observed both [Appellant] and Mr. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3304(a)(5), 903, 907, 2706(a)(1), and 2705, respectively. 
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Brooks’ neighbor living across the street, Co-Defendant Jose 

Ortiz-DeJesus. Co-Defendant shouted for Mr. Brooks to 

move his “motherfucking truck,” which was parked 

approximately “fifty feet” from Co-Defendant’s home. Then, 

[Appellant] and Co-Defendant ran up to the driver-side door 

of Mr. Brooks’ car and Mr. Brooks exited his vehicle. 

Mr. Brooks testified that [Appellant] subsequently pointed a 

firearm towards Mr. Brooks and stated: “I’m from Brooklyn,” 

and “Motherfucker, don’t move.” Mr. Brooks described the 

firearm as a “black,” “handgun,” “pistol” that “looked like an 

automatic.” Next, Mr. Brooks removed “a samurai set of 

knives” from the trunk of his car. [Appellant] then told Mr. 

Brooks that he and Co-Defendant were going to “fuck [Mr.

Brooks] up.” 

Shortly thereafter, scuffling occurred between Mr. Brooks, 

Co-Defendant and Mariana DeJesus, Co-Defendant’s mother 

and [Appellant’s] godmother. Subsequently, Mr. Brooks 

attempted to enter his home. However, [Appellant] broke 

the windows and mirrors of Mr. Brooks’ car with a golf club, 

pulled off Mr. Brooks’ car mirror, and attempted to hit Mr. 

Brooks with the golf club. Mr. Brooks testified that he tried 

to “fend off” [Appellant], but that [Appellant] started 

swinging the doors of Mr. Brooks’ car in order to bend the 

doors out of shape and break the doors’ hinges. Next, 

[Appellant] removed a container from the trunk of Mr. 

Brooks’ car and threw its contents onto the porch of Mr. 

Brooks’ home. At that point, Mr. Brooks was able to safely

enter his home and lock his security door. However, 

[Appellant] subsequently broke Mr. Brooks’ security door 

with the golf club. Mr. Brooks told his wife to call the police. 

Katrina Ethridge testified that she observed, from the porch 

of her home, [Appellant]: “beating [Mr. Brooks’] car up” 

with a golf club; “throwing up hand signs”; and verbally 

threatening to “F [Mr. Brooks] up.” In addition, Ms. Ethridge 

testified that she observed [Appellant] move his shirt to 

reveal that he had a firearm tucked in his waistband, and 

later pass that firearm to Co-Defendant. Ms. Ethridge 

testified that she knew the object she observed was a 

firearm because she saw the firearm’s “black handle.” 

According to Ms. Ethridge, Co-Defendant was no longer at 

the scene of the subject altercation when police arrived. 
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Police Officer Stephen Burgoon testified that he and his 

partner received a radio call for “a person with a gun on the 

4700 block of Mulberry and Foulkrod.” Upon arriving at the 

scene, Officer Burgoon observed a “green Chevrolet Malibu” 

with all of its windows broken out, a large crowd, and 

[Appellant] and Mr. Brooks arguing. Officer Burgoon and 

his partner separated [Appellant] and Mr. Brooks. 

Thereafter, Officer Burgoon learned from Mr. Brooks that 

[Appellant] had a “black handgun” and “broke the windows 

out of [Mr. Brooks’] car and [] house.” Officer Burgoon 

subsequently arrested [Appellant]. No firearm was 

recovered from [Appellant]. 

As a result of Appellant’s conduct, Mr. Brooks testified that: 

the driver side door of his car was broken; his car’s rear 

window was broken; his car mirrors were broken; the 

security door of his home was broken; and the porch of his 

home was covered in contents from a container. Mr. Brooks 

further testified that it cost him approximately “six or seven 

hundred” dollars to repair the damage to his car, and that 

his security door still had not been replaced. 

(Trial Court Opinion, filed January 14, 2020, at 2-4) (internal record citations 

omitted). 

Following a bench trial, the court convicted Appellant of criminal 

mischief, conspiracy, PIC, terroristic threats, and REAP. On July 31, 2018, the 

court sentenced Appellant to an aggregate term of eleven and one-half (111⁄2) 

to twenty-three (23) months’ incarceration, followed by three (3) years of 

probation. The court also ordered restitution in the amount of $2,000.00. 

Appellant timely filed a post-sentence motion on August 9, 2018. In it, 

Appellant claimed “the Commonwealth presented no evidence to substantiate 

its claim for restitution beyond $1000.” (Post-Sentence Motion, filed 8/9/18, 

at ¶4). The court denied the motion on August 14, 2018, and Appellant did 
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not seek further review with this Court. 

On December 13, 2018, Appellant timely filed a pro se petition under 

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The 

court appointed current counsel, who filed an amended petition on July 12, 

2019. On October 4, 2019, the court granted PCRA relief, reinstating 

Appellant’s direct appeal rights nunc pro tunc. 

Appellant timely filed a notice of appeal nunc pro tunc on October 16, 

2019. On October 22, 2019, the court ordered Appellant to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. Appellant 

timely complied on November 8, 2018. 

Appellant now raises two issues for this Court’s review: 

Whether the verdict was contrary to law as based on 

insufficient evidence. 

Whether the [trial] court erred in awarding restitution. 

(Appellant’s Brief at 8). 

In his first issue, Appellant contends the guilty verdicts are based upon 

the testimony from Mr. Brooks and Ms. Ethridge. Appellant emphasizes that 

Mr. Brooks is “a man convicted of making false statements,” and Ms. Ethridge 

is “an elderly woman who allegedly saw the incident from a significant distance 

away.” (Id. at 17-18). Appellant also claims that Mr. Brooks “had a complex 

and tense prior relationship” with the parties involved in the dispute, which 

gave him a “motive to escalate that conflict into the legal matter at hand.” 

(Id. at 18). Appellant relies on Commonwealth v. Bennett, 303 A.2d 220 
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(Pa.Super. 1973), for the proposition that such weak and inconsistent 

testimony was not sufficient to sustain the guilty verdicts. 

Further, regarding the conviction for PIC, Appellant argues the 

Commonwealth failed to recover a firearm. Appellant acknowledges Ms. 

Ethridge’s testimony that she saw Appellant pass a gun to Mr. DeJesus, but 

cites other portions of testimony where Ms. Etheridge merely referred to a 

“black item” in Appellant’s pants. Appellant posits that a “black item” could 

have been “a wallet or any number of objects, not necessarily a gun.” (Id. at 

20). Based upon the foregoing, Appellant concludes the Commonwealth 

presented insufficient evidence to support his convictions.

2

 We disagree. 

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2 Appellant raises additional, discrete arguments related to the sufficiency of 

the evidence for each of his convictions. (See Appellant’s Brief at 18-22). 

Appellant’s Rule 1925(b) statement, however, only preserved the following 

arguments: 

The Commonwealth failed to recover or present as evidence, 

a firearm. Additionally, the testimony of the 

Commonwealth’s witnesses [was] not worthy of belief. The 

complaining witness ... was not credible due to a previous 

conviction for making false statements. Moreover, Mr. 

Brooks testified that [Appellant] threatened him with a 

firearm, despite there being no physical evidence of one. 

Additionally, there was a history of animosity between Mr. 

Ortiz-DeJesus (co-defendant) and Mr. Brooks providing Mr. 

Brooks with an ulterior motive. 

(Rule 1925(b) Statement, filed 11/8/19, at ¶2) (internal record citations 

omitted). Consequently, we limit our review to those arguments preserved in 

the Rule 1925(b) statement. See Commonwealth v. Hill, 609 Pa. 410, 417, 

16 A.3d 484, 488 (2011) (reiterating that any appellate issues not raised in 

Rule 1925(b) statement will be deemed waived); Commonwealth v. 
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Our standard of review for sufficiency claims 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 

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. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal 

denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v. 

Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)). 

“As a general matter, our standard of review of sufficiency claims 

requires that we evaluate the record in the light most favorable to the verdict 

winner giving the prosecution the benefit of all reasonable inferences to be 

drawn from the evidence.” Commonwealth v. Rahman, 75 A.3d 497, 500 

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Garland, 63 A.3d 339, 344 (Pa.Super. 2013) (explaining Rule 1925(b) 

statement must state with specificity element or elements upon which 

appellant alleges that evidence was insufficient). 
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(Pa.Super. 2013) (quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 

1074 (Pa.Super. 2013)). 

However, the inferences must flow from facts and 

circumstances proven in the record, and must be of such 

volume and quality as to overcome the presumption of 

innocence and satisfy the [factfinder] of an accused’s guilt 

beyond a reasonable doubt. The trier of fact cannot base a 

conviction on conjecture and speculation and a verdict which 

is premised on suspicion will fail even under the limited 

scrutiny of appellate review. 

Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.Super. 2014) (quoting 

Commonwealth v. Slocum, 86 A.3d 272, 275-76 (Pa.Super. 2014)). 

Section 3304 of the Crimes Code defines criminal mischief, in relevant 

part, as follows: 

§ 3304. Criminal mischief

(a) Offense defined.—A person is guilty of criminal 

mischief if he:

* * *

(5) intentionally damages real or personal 

property of another[.] 

18 Pa.C.S.A. § 3304(a)(5). 

Section 903 of the Crimes Code defines criminal conspiracy as follows:

§ 903. Criminal conspiracy

(a) Definition of conspiracy.—A person is guilty of 

conspiracy with another person or persons to commit a 

crime if with the intent of promoting or facilitating its 

commission he:

(1) agrees with such other person or persons that 

they or one or more of them will engage in conduct which 
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constitutes such crime or an attempt or solicitation to 

commit such crime; or

(2) agrees to aid such other person or persons in 

the planning or commission of such crime or of an 

attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903(a)(1), (2). “To sustain a conviction for criminal conspiracy, 

the Commonwealth must establish that the defendant (1) entered into an 

agreement to commit or aid in an unlawful act with another person or persons, 

(2) with a shared criminal intent and (3) an overt act was done in furtherance 

of the conspiracy.” Commonwealth v. Melvin, 103 A.3d 1, 42 (Pa.Super. 

2014). 

Section 907 of the Crimes Code defines PIC as follows:

§ 907. Possessing instruments of crime

(a) Criminal instruments generally.—A person 

commits a misdemeanor of the first degree if he possesses 

any instrument of crime with intent to employ it criminally.

18 Pa.C.S.A. § 907(a). Further, a witness’s testimony alone can establish a 

defendant’s possession of a firearm. See Commonwealth v. Antidormi, 84 

A.3d 736, 757 (Pa.Super. 2014), appeal denied, 626 Pa. 681, 95 A.3d 275 

(2014). 

Section 2706 of the Crimes Code defines terroristic threats, in relevant 

part, as follows:

§ 2706. Terroristic threats

(a)Offense defined.—A person commits the crime of 

terroristic threats if the person communicates, either 

directly or indirectly, a threat to:
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(1) commit any crime of violence with intent to 

terrorize another[.] 

* * *

18 Pa.C.S.A. § 2706(a)(1). “[N]either the ability to carry out the threat nor 

a belief by the person threatened that it will be carried out is an essential 

element of the crime.” Commonwealth v. Fenton, 750 A.2d 863, 865 

(Pa.Super. 2000) (internal citation and quotation marks omitted).

Section 2705 of the Crimes Code defines REAP 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)). 

Instantly, the trial court found the Commonwealth’s witnesses were

credible. 

[The trial c]ourt found the Commonwealth’s witnesses to be 

credible and the Defense witnesses to not be credible. 

Mariana DeJesus was [found not] credible because of her 

close relationship with [Appellant], as his godmother; and 

because of her own involvement in the subject altercation.8 

In contrast to Mariana DeJesus, [the trial c]ourt found Mr. 
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Brooks credible because Mr. Brooks’ testimony was 

supported by photos depicting the damage Mr. Brooks 

described, multiple 9-1-1 calls from different sources, and 

the testimony of Ms. Ethridge and Police Officer Burgoon.9

8 On April 18, 2019, Mariana DeJesus pled guilty to 

hitting Mr. Brooks with a rake during the subject 

altercation between Mr. Brooks, [Appellant], and 

Mariana DeJesus’ son, Co-Defendant Jose OrtizDeJesus. 

9 Due to the aforementioned reasons, [the trial c]ourt 

found Mr. Brooks’ testimony to be credible even 

despite Mr. Brooks’ previous conviction for making 

false statements and his history of animosity with the 

co-defendant, as raised by [Appellant]. 

(See Trial Court Opinion at 7-8) (internal record citation omitted). In light of 

the applicable standard of review as well as our review of the record,

3 we are 

not inclined to reweigh the evidence or otherwise substitute our judgment for 

that of the trial court. See Tucker, supra. 

Moreover, the record confirms that the verdicts were not based upon 

conjecture and speculation due to weak or inconsistent testimony. See 

Kearney, supra. Mr. Brooks and Ms. Ethridge both described a chaotic scene 

where Appellant and his co-defendant threatened Mr. Brooks and destroyed 

his property. Additionally, Mr. Brooks and Ms. Ethridge both testified that 

Appellant possessed a firearm. (See N.T. Trial, 5/29/18, at 15-16, 51, 58). 

Such testimony established Appellant’s possession of the firearm, regardless 

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3 The record on appeal included the photos of the crime scene, which depict 

the damage to Mr. Brooks’ automobile and security door. (See

Commonwealth’s Trial Exhibits 2-9). 
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of whether police recovered the weapon from his person. See Antidormi, 

supra. Because the witnesses’ testimony was unequivocal and consistent, 

Appellant is not entitled to relief on his first issue. See Tucker, supra; 

Kearney, supra. 

In his second issue, Appellant argues “[t]he sentencing court erred in 

ordering Appellant to pay $2,000.00 in restitution because there was no 

factual basis in the record to support the ordered number.” (Appellant’s Brief 

at 23). Appellant concludes his “sentence is excessive and speculative for 

providing no evidentiary basis for the actions, and therefore illegal.”4 (Id. at 

24). As presented, Appellant’s challenge implicates the discretionary aspects 

of sentencing. See Commonwealth v. Weir, ___ Pa. ___, 239 A.3d 25 

(2020) (explaining that argument that restitution was not supported by record

implicates discretionary aspects of sentencing). 

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910, 

912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary 

sentencing issue:

[W]e conduct a four part analysis to determine: (1) whether 

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4 Appellant also baldly asserts “no record was ever made regarding [his] 

financial situation and ability to pay.” (Appellant’s Brief at 24). Nevertheless, 

“restitution in a criminal case is mandatory and the defendant’s ability to pay 

is irrelevant unless and until he defaults on the restitution order.” 

Commonwealth v. Leber, 802 A.2d 648, 652 (Pa.Super. 2002). 

Consequently, the court was not obligated to inquire into Appellant’s ability to 

pay when it entered the sentencing order. 
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appellant has filed a timely notice of appeal, see Pa.R.A.P.

902 and 903; (2) whether the issue was properly preserved 

at sentencing or in a motion to reconsider and modify 

sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s 

brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether 

there is a substantial question that the sentence appealed 

from is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b). 

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke the appellate court’s jurisdiction by, inter alia, including a 

separate concise statement demonstrating that there is a substantial question 

as to the appropriateness of the sentence under the Sentencing Code. 

Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812 A.2d 617, 621-22 

(2002); Pa.R.A.P. 2119(f). “If the Commonwealth objects to the appellant’s 

failure to comply with Pa.R.A.P. 2119(f), the sentencing claim is waived for 

purposes of review.” Commonwealth v. Griffin, 149 A.3d 349, 353 

(Pa.Super. 2016), affirmed, ___ Pa. ___, 207 A.3d 827 (2019). 

Instantly, Appellant’s brief fails to set forth a separate concise statement 

demonstrating that there is a substantial question, pursuant to Rule 2119(f). 

The Commonwealth has objected to this deficiency. (See Commonwealth’s 

Brief at 10). Thus, Appellant’s second issue is waived. See Griffin, supra. 

Accordingly, we affirm the judgment of sentence. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/14/2021