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COMMONWEALTH PENNSYLVANIA v. FELIX BERRIOS RIVERA (12/20/85)

filed: December 20, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
FELIX BERRIOS RIVERA, APPELLANT



No. 14 Harrisburg, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Adams County, No. CC-74-82.

COUNSEL

John D. Kuhn, Public Defender, Harrisburg, for appellant.

Gary E. Hartman, District Attorney, Gettysburg, for Com., appellee.

Spaeth, President Judge, and Cavanaugh, Wieand, McEwen, Cirillo, Del Sole, Johnson, Popovich and Cercone, JJ. Cercone, J., did not participate in the decision of this appeal.

Author: Wieand

[ 349 Pa. Super. Page 304]

When this appeal was previously before the Superior Court, we remanded with directions to the trial court to

[ 349 Pa. Super. Page 305]

    complete the trial record so that we could fulfill our responsibility as a reviewing court. Commonwealth v. Rivera, 339 Pa. Super. 242, 488 A.2d 642 (1985). A transcript of the trial was then prepared and has now been forwarded to us for review. The issues requiring our attention are (1) whether the evidence was sufficient to sustain the jury's finding that Felix Berrios Rivera was guilty of recklessly endangering another person; and (2) whether it was error for the court to tell the jury that there was no evidence to support a finding of a lesser degree of robbery as argued by the defense.

The Commonwealth's evidence showed that Rivera had been one of four persons who entered the home of Maybelle Jacoby on December 28, 1981 and, at rifle point, demanded the combination to her safe. When the intruders were unable to extract the combination from Mrs. Jacoby, they tied her up, along with Mrs. Decker, a tenant. The intruders then searched the Jacoby home and gathered such valuables as they could find. Before leaving, the robber who was holding the gun, a man known as Luis, asked in English and within the hearing of all whether the women should be shot. He was told not to shoot them, and the robbers departed. At trial, Kathy Laughman, who had been one of the robbers, testified as a Commonwealth witness and identified appellant as a participant in the robbery. Indeed, he had held the gun during a part of the robbery. He was found guilty of burglary, robbery, recklessly endangering another person and criminal conspiracy.

In reviewing the sufficiency of the evidence, we view all the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the Commonwealth, which has won the verdict. In this case, we must determine whether the evidence, viewed as aforesaid, is sufficient to permit a finding beyond a reasonable doubt that each element of the offense of recklessly endangering another person was present. Commonwealth v. Davis, 331 Pa. Super. 59, 62, 479 A.2d 1077, 1079 (1984). See: Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718,

[ 349 Pa. Super. Page 306]

    judgment of sentence should be affirmed.*fn1 Even under our prior decisions, the evidence in the instant case was sufficient to support a finding that there had been a reckless endangerment of the women who had been tied up and threatened with death or serious injury by shooting.

When the evidence is viewed in the light most favorable to the Commonwealth, it seems clear that it was sufficient to support an inference that the robbers had placed their victims in a situation where the risk of death or serious bodily injury was real, not merely apparent. While Mrs. Jacoby's home was being ransacked, the gun was used to prevent her from interfering. It was pointed at her at all times, primarily at her face, so that she was forced to look into the barrel of the gun. As a result, she began screaming. She was told to "shut up." The gun was also used to threaten her in an effort to induce her to reveal the combination to the safe. Finally, she was physically forced to submit to being tied up before the robbers left. Mrs. Jacoby tried to resist by kicking at her tormentors but accomplished nothing but the loss of her shoe. It was then that Luis suggested that the women be shot. There was no reason to believe that this was merely an idle threat which he was incapable of carrying out. His accomplices did not deem it so, for they cautioned Luis and told him that the women were not to be shot. This evidence was sufficient to permit a finding that the ...


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