J. S06033/15

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENN SYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA Appellee :

:

v. :

: RAFI KEARSE, :

: Appellant : No. 749 EDA 2014

Appeal from the J udgment 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, 2 and possessing an instrument of crime 3 (“PIC”). Appellant

conte nds the evidence was insufficient to find him guilty of aggravated

* Former Justice speciall y 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.J. S06033/15

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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 establis hed 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 T alley, 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. Cam pbell 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 han dgun 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 R odriquez then issued a radio broadcast that led police to 1411 Jefferson Street.J. S06033/15

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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 y ears’

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

th e 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).J. S06033/15

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- never e stablished. 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 se em 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 convicti ng [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 Det ective 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 thei r 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 8 87 (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

afte r 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).J. S06033/15

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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

evidenc e 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

of fense 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

u nproven 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 s tatement. 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.J. S06033/15

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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 cr iminal 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 sufficien t 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 C ommonwealth 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 unde r circumstances manifesting extreme indifference to the value of human life[.]

18 Pa.C.S. § 2702(a)(1).

This Court has stated:J. S06033/15

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- Where the victim suffers serious bodily injury, the Commonwealth is not required to prove specific intent.

The Commonwealth n eed 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 und er 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 no t 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 “reckle ssly 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 unjus tified 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 extraordinari ly well established precedent stating that if a gunJ. S06033/15

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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 12 57, 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 mali ce. 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