J. S06033/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

RAFI KEARSE, :

:

Appellant : No. 749 EDA 2014

Appeal from the Judgment of Sentence February 10, 2014

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0005632-2013

BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 13, 2015

Appellant, Rafi Kearse, appeals from the judgment of sentence entered 

in the Philadelphia County Court of Common Pleas following a waiver trial 

and his convictions for aggravated assault,1 persons not to possess 

firearms,2and possessing an instrument of crime3(“PIC”). Appellant 

contends the evidence was insufficient to find him guilty of aggravated 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2702. We note that after Appellant was convicted, the statute 

was amended. However, the amendments do not affect the case sub judice.

2 18 Pa.C.S. § 6105.

3 18 Pa.C.S. § 907.
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assault because he did not have the required mens rea to commit the crime. 

We affirm.

The trial court summarized the facts of this case as follows:

The evidence adduced at trial established that Appellant 

shot a male, Demetrius Campbell, in the back during a 

fight between Mr. Campbell and Chris Brown─Appellant’s 

[child’s] mother’s cousin. Specifically, on March 30, 2012, 

at approximately 9:20 p.m., Appellant, [his child’s] 

mother, Lisa Talley, along with her mother, Lisa Miles, 

sister, Brittany Miles, brother, Douglas Talley, cousin, Chris 

Brown, and two other males, Demetrius Campbell and 

James Logan, were hanging out in Ms. Talley’s bedroom 

inside 1411 Jefferson Street . . . . At said time and 

location, Messrs. Campbell and Brown got into an 

argument, which escalated to a fistfight in the bedroom. 

While the fight was going on, the non-combatants initially 

tried to break it up, but then decided to “just let them 

fight.” 

When Mr. Campbell started to get the better of Mr. 

Brown, Appellant retrieved a silver and black handgun and 

shot Mr. Campbell in the back. Ms. Talley immediately 

turned around and exclaimed, “What the f*ck are you 

doing?” Mr. Campbell then ran out of the room, and out of 

the house. Appellant attempted to follow him outside, but 

Ms. Talley [ ] shut the door to prevent him from leaving. 

When she thought Mr. Campbell had had sufficient time to 

escape, she opened the door, and Appellant placed his 

silver and black handgun inside a black duffel bag, and 

fled.

Mr. Campbell was transported by Temple University 

Police to Temple University Hospital in critical condition. 

The bullet had entered his back, perforated his lung, 

fractured two ribs, exited his chest and lodged in his left 

arm, requiring emergency surgery and eight (8) days of 

inpatient care. Fortunately, while he was in the 

emergency room, Mr. Campbell was able to relay to 

Philadelphia Police Officer Carlos Rodriquez where the 

shooting had occurred. Officer Rodriquez then issued a 

radio broadcast that led police to 1411 Jefferson Street. 
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There, police encountered Ms. Talley, her sister Brittany, 

and mother Lisa─each of whom provided detailed 

statements to detectives describing the above 

events and positively identifying Appellant as the 

shooter.

Trial Ct. Op., 7/23/14, at 2-3 (footnote and citations to record omitted) 

(emphasis supplied).

Appellant was sentenced to five to ten years’ imprisonment for 

aggravated assault and a consecutive term of two to four years’ 

imprisonment for persons not to possess firearms. The court did not impose 

a penalty on his conviction for PIC. This timely appeal followed.4 Appellant 

filed a timely court-ordered Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal and the trial court filed a responsive opinion.

Appellant raises the following issue for our review: “Whether the 

evidence submitted at trial was sufficient to convict [Appellant] of 

Aggravated Assault where the evidence presented suggested he did not have 

the required mens rea to commit the crime?” Appellant’s Brief at 3.

He argues:

[T]evidence i[s] insufficient to prove [Appellant] guilty of 

aggravated assault beyond a reasonable doubt, because 

[Appellant’s] mens rea at the time of the shooting was 

 

4 Appellant did not file a post-sentence motion. However, a sufficiency of 

the evidence claim can be raised for the first time on appeal. Pa.R.Crim.P. 

606(A)(7); Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 

2011).
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never established. The only Alexander[5]factor that is 

present is the weapon. There are no statements, 

sustained attack, nor any other actions that show 

[Appellant] had the intent to cause serious bodily injury. 

In fact [Appellant’s] statements and actions seem to 

indicate he was negligent in his behavior. 

Id. at 9.

As a prefatory matter, we consider whether Appellant has waived this 

issue on appeal. Appellant raised the following issue in his Pa.R.A.P. 

1925(b) statement:

The trial court erred in convicting [Appellant] of 

Aggravated Assault, because the evidence was insufficient 

where he was neither found with the alleged weapon, nor 

did any of the eye[-]witnesses say they saw him with a 

gun at trial. The Commonwealth’s case relied on the 

testimony of Detective Michael Rocks who took statements 

from the two eye[-]witnesses at trial, Lisa Talley, and Lisa 

Miles. While both witnesses gave statements to Detective 

Rocks that placed a gun in [Appellant’s] hands at the time 

of the shooting, bot[h] recanted their statements at trial. 

Further, the complaining witness did not testify at trial as 

to who shot him.

 

5 Appellant cites Commonwealth v. Alexander, 383 A.2d 887 (Pa. 1978) 

as follows:

There is no evidence that appellant was disproportionately 

larger or stronger than the victim; appellant was not 

restrained from escalating his attack upon the victim; 

appellant had no weapon or other implement to aid his 

attack; appellant made no statements before, during, or 

after the attack which might indicate his intent to inflict 

further injury upon the victim.

See Appellant’s Brief at 8 (quoting Alexander, 383 A.2d at 889).
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Id. at 4.6 

In Commonwealth v. Williams, 959 A.2d 1252 (Pa. Super. 2008), 

the appellant’s 

1925(b) statement language d[id] not specify how the 

evidence failed to establish which element or elements of 

the three offenses for which [he] was convicted. To name 

certain witnesses who failed to establish the 

Commonwealth’s case says nothing about how the 

evidence was insufficient. Which elements of which 

offense were unproven? What part of the case did the 

Commonwealth not prove?

In any given case, there may be one or more witnesses 

whose testimony fails to prove the charges. Indeed, 

perhaps all the witnesses fail to do so. Very well. But how 

did they fail? What part of the offenses did the 

Commonwealth not establish? What element is it that this 

Court is to analyze on appeal?

If [an a]ppellant wants to preserve a claim that 

the evidence was insufficient, then the 1925(b) 

statement needs to specify the element or elements 

upon which the evidence was insufficient. This 

Court can then analyze the element or elements on 

appeal. 

Id. at 1257 (emphasis supplied and citation omitted). 

Where the Rule 1925(b) statement “does not specify the allegedly 

unproven elements,” the issue is waived. Id. Instantly, Appellant’s Rule 

1925(b) statement does not specify the allegedly unproven elements upon 

which the evidence was insufficient. Therefore, the issue is waived. See id.

 

6 The certified record on appeal contains Appellant’s 1925(b) statement 

denominated as a preliminary statement. See Appellant’s Preliminary 

Concise Statement of Matters Complained of on Appeal, 5/30/14, at 1. It is 

virtually identical to the statement reproduced in Appellant’s brief.
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Assuming, arguendo, the issue is not waived, we find no relief is due. 

“A claim challenging the sufficiency of the evidence is a question of law.” 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

[T]he critical inquiry on review of the sufficiency of the 

evidence to support a criminal conviction . . . does not 

require a court to ask itself whether it believes that the 

evidence at the trial established guilt beyond a reasonable 

doubt. Instead, it must determine simply whether the 

evidence believed by the fact-finder was sufficient to 

support the verdict. . . .

 * * *

When reviewing the sufficiency of the evidence, an 

appellate court must determine whether the evidence, and 

all reasonable inferences deducible from that, viewed in 

the light most favorable to the Commonwealth as verdict 

winner, are sufficient to establish all of the elements of the 

offense beyond a reasonable doubt. 

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007) 

(citations and quotation marks omitted). 

Appellant was convicted under the following subsection of the 

aggravated assault statute:

(a) Offense defined.─A person is guilty of aggravated 

assault if he:

(1) attempts to cause serious bodily injury to another, 

or causes such injury intentionally, knowingly or 

recklessly under circumstances manifesting extreme 

indifference to the value of human life[.]

18 Pa.C.S. § 2702(a)(1).

This Court has stated:
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Where the victim suffers serious bodily injury, the 

Commonwealth is not required to prove specific intent. 

The Commonwealth need only prove [the defendant] 

acted recklessly under circumstances manifesting an 

extreme indifference to the value of human life. For 

the degree of recklessness contained in the 

aggravated assault statute to occur, the offensive act 

must be performed under circumstances which 

almost assure that injury or death will ensue. 

Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007) (en 

banc) (emphasis supplied).

In Commonwealth v. Wesley, 860 A.2d 585 (Pa. Super. 2004), the 

defendant shot the victim in the back. Id. at 587. This Court held: “By 

causing serious bodily injury to the victim with a gun, namely, wounding the 

victim in the back, [the defendant] committed aggravated assault.” Id. at 

593.

This Court has stated that

the Commonwealth was not required to prove appellant 

acted with the “specific intent” to cause [the victim’s] 

injuries. . . . Since appellant actually caused . . . “serious 

bodily injury,” the Commonwealth, at a minimum, had to 

prove that appellant caused these injuries “recklessly 

under circumstances manifesting extreme indifference to 

the value of human life.” In other words, the 

Commonwealth had to prove that appellant acted with 

malice. 

To prove malice, “it must be shown that the defendant 

consciously disregarded an unjustified and extremely high 

risk that his actions might cause death or serious bodily 

harm.” This state of mind may be inferred “from conduct, 

recklessness of consequences, or the cruelty of the crime.” 

In following, under our caselaw, we have extraordinarily 

well established precedent stating that if a gun 
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discharges and the bullet strikes the victim, the 

intentional act of pointing the gun and aiming it at a 

vital part of the human body creates the 

presumption of malice.

Commonwealth v. Payne, 868 A.2d 1257, 1261 (Pa. Super. 2005) 

(citations omitted and emphasis added).

Instantly Appellant concedes “[t]here is no doubt that an aggravated 

assault was committed against Demetrius Campbell. The medical records 

speak for themselves.” Appellant’s Brief at 7. He avers only that the 

Commonwealth did not “provide sufficient evidence as to [Appellant’s] Mens 

Rea at the time of the shooting.” Id. 

Appellant shot Mr. Campbell in the back, resulting in serious bodily 

injury, thus creating the presumption of malice. See Payne, 868 A.2d at 

1261; Wesley, 860 A.2d at 593. There was sufficient evidence that 

Appellant committed aggravated assault. See Ratsamy, 934 A.2d at 1235-

36; Patrick, 933 A.2d at 146.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/13/2015