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HomeMy WebLinkAboutCP-21-CR-0003523-2011 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF V. : CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL MERZA : CP-21-CRIMINAL 3523 – 2011 : IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., May , 2013 After a trial by jury the defendant was convicted of recklessly endangering another 12 person and unlawful possession of drug paraphernalia. He filed timely post sentence motions which we denied on December 12, 2012. He has filed this appeal in which he contends that the evidence was not sufficient to sustain his conviction for recklessly endangering. Specifically he 3 contends there was no evidence that he “had the actual present ability to inflict harm”. FACTUAL BACKGROUND We will review the facts of this case in the light most favorable to the Commonwealth as rd the verdict winner. Commonwealth v. Lowry, 55 A.3 743 (Pa. Super 2012). On November 30, 2011, Harrisburg City Police asked for the assistance of the Lower Allen Township Police in 4 serving an arrest warrant on the defendant. Harrisburg City detectives along with several Lower Allen Township officers, including Officer Elias Martinez, located the defendant on a 5 ladder doing some work in the 5300 block of Oxford Drive. 1 18 Pa. C.S.A. § 2705. 2 35 P.S. § 780 – 113 (a) (32). 3 See Concise Statement of Errors Complained of on Appeal. 4 Transcript of Testimony, June 25, 26, 2012, p. 19. 5 Transcript of Testimony, June 25, 26, 2012, pp. 20, 21. The police officers advised the defendant of the arrest warrant and ordered him down 67 from the ladder. He was handcuffed behind his back. At that point Officer Martinez prepared to search him. The officer asked him “if he had any weapons or anything that would hurt me on 89 him.” The defendant responded that he did not. 10 In fact the defendant had a hypodermic needle and syringe in his right front pocket. As Officer Martinez began patting him down he pricked his right middle finger on the needle, 11 causing it to bleed. The defendant readily admitted that he used the needle and syringe for 12 injecting heroin. While he at first denied that he had any infectious disease, he later admitted 13 that he had Hepatitis C. A subsequent blood test confirmed that the defendant was in fact 14 infected with Hepatitis C. As a result of this incident Officer Martinez has been required to submit to periodic 15 blood tests. Although his regimen of blood testing has not concluded, all of his tests have 16 been negative thus far. 6 Transcript of Testimony, June 25, 26, 2012, p. 22. 7 Transcript of Testimony, June 25, 26, 2012, p. 22. 8 Transcript of Testimony, June 25, 26, 2012, p. 22. 9 Transcript of Testimony, June 25, 26, 2012, p. 22. 10 Transcript of Testimony, June 25, 26, 2012, pp. 22, 34. See also Commonwealth Exhibit 2. 11 Transcript of Testimony, June 25, 26, 2012, p. 22. 12 Transcript of Testimony, June 25, 26, 2012, pp. 32, 33. 13 Transcript of Testimony, June 25, 26, 2012, pp. 32, 64. See also Commonwealth Exhibit 6. 14 Transcript of Testimony, June 25, 26, 2012, p. 64. See also Commonwealth Exhibit 4. 15 Transcript of Testimony, June 25, 26, 2012, p. 38. 16 Transcript of Testimony, June 25, 26, 2012, p. 38. 2 DISCUSSION The offense of recklessly endangering another person is made out when someone “recklessly engages in conduct which places or may place another in danger of death or serious bodily injury.” Our courts have long held that in order for a defendant to be convicted of recklessly endangering he must have the “actual present ability to inflict harm.” Commonwealth v. Trowbridge, 395 A. 2d. 337, 1340 (Pa. Super 1978). Defense counsel argued that since the Commonwealth failed to produce any evidence that the needle contained the Hepatitis C virus the conviction for recklessly endangering cannot stand. She relied upon Trowbridge, supra and Commonwealth v. Smith, 292 Pa. Super. 443, 437 A.2d 757 (Pa. Super 1981) in support of her position. Both of those cases involved an unloaded firearm. She likened the needle in this case to the guns in those. We were not persuaded by the analogy. An unloaded firearm cannot be used to inflict harm, a used hypodermic needle certainly can. If a defendant points an unloaded gun at someone and pulls the trigger, the “victim” knows immediately that he is not in danger. Furthermore, it can be easily verified whether or not the gun was loaded. In this case Officer Martinez still does not know whether or not he will acquire Hepatitis C. Nor is it easy to verify whether the needle was “loaded.” The Commonwealth presented evidence that the needle was not tested because of the reluctance 17 of labs to take on such an assignment due to the danger involved. Even if the needle had been tested with negative results that does not mean that Officer Martinez was not in danger. Whatever virus that may have been on it might already have been 17 Transcript of Proceedings, June 25, 26, 2012, pp. 54, 55. 3 transferred. The simple fact that he has been required to undergo a regimen of blood testing over the course of a year is sufficient to confirm that the defendant’s conduct placed or may 18 have placed Officer Martinez in danger of contracting Hepatitis C. For that reason we denied the defendant’s post sentence motion in arrest of judgment. ________________________ _________________ DATE Edward E. Guido, J. Jaime M. Keating, Esquire For the Commonwealth Stephanie L. Cesare, Esquire For the Defendant :sld 18 The case at bar is much more akin to Commonwealth v. Cordoba, 902 A.2d 1280 (Pa. Super 2006), than either of the cases relied upon by the defendant. 4