J-S44011-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMAL L. RICE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 585 EDA 2017

Appeal from the Judgment of Sentence March 30, 2016

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0004185-2014, 

CP-51-CR-0004186-2014, CP-51-CR-0004197-2014

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 17, 2018

Jamal L. Rice appeals, nunc pro tunc, from the judgment of sentence,

entered in the Court of Common Pleas of Philadelphia County, after he was 

convicted of discharging a firearm into an occupied structure,1 possession of 

an instrument of a crime (“PIC”),

2 and reckless endangerment of another 

person3 (“REAP”) in the case docketed at CP-51-CR-0004197-2014. He was 

also convicted of prohibited possession of a firearm,4firearms not to be carried 

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1 18 Pa.C.S. § 2707.1(a).

2 18 Pa.C.S. § 907(a).

3 18 Pa.C.S. § 2705.

4 18 Pa.C.S. § 6105(a)(1).
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without a license,5 PIC, simple assault,

6 and REAP in the case docketed at CP51-CR-0004185-2014. Lastly, Rice was convicted of aggravated assault,7 PIC, 

simple assault, and REAP in the case docketed at CP-51-CR-0004186-2014. 

After careful review, we affirm. 

On February 14, 2014, Rice and his girlfriend, Monique Lawson, met 

Lawson’s friend, Nashia Freeman, at a train station. All three went to Lawson’s 

home, where they began to smoke cannabis. Rice and Lawson laced their 

cannabis with Phencyclidine (PCP). At some point after smoking the drugs, 

Freeman asked Rice to buy her cigarettes and started to hand Rice money. 

Rice then retrieved a firearm from his waistband and aimed it at Freeman. 

Lawson stepped between Rice and Freeman, begging Rice to stop. During this 

exchange, Freeman was able to retreat to the basement, where she hid in a 

crawlspace. Freeman testified that she could hear Rice and Lawson arguing 

upstairs, and that she heard a gunshot. She then heard Rice tell Lawson to 

“get up,” before a second gunshot went off. 

A neighbor called the police after a bullet went through his second floor 

window and hit his bedroom wall. When police arrived at the scene, there was 

shattered glass on the steps and sidewalk outside Lawson’s residence. When 

the officers asked to come inside, Rice let them in. Both Rice and Lawson 

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5 18 Pa.C.S. § 6106(a)(1).

6 18 Pa.C.S. § 2701.

7 18 Pa.C.S. § 2702(a).
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claimed nothing was out of the ordinary. The officers saw Freeman flashing 

lights through the floorboards and calling for help. Freeman confirmed that 

Rice and Lawson had ingested PCP and informed the officers that she would 

not come out of hiding until Rice was disarmed. Police retrieved the gun from 

Rice and the matching casings on the living room floor, as well as the bullet

from the neighbor’s residence. 

Rice was tried in a nonjury trial before the Honorable Tamika Lane, who 

found him guilty of the aforementioned charges. On March 30, 2016, the 

court sentenced him to three and one half to seven years of imprisonment for 

discharge of a firearm into an occupied structure, to run consecutively with 

five years of probation for possession of an instrument of a crime in the case 

docketed CP-51-CR-0004197-2014. Rice was sentenced to five to ten years 

imprisonment for prohibited possession of a firearm, two and one half to five 

years for firearms not to be carried without a license, and eleven and one half 

months to twenty-three months for possession of an instrument of a crime, to 

run consecutively with a sentence of one to two years for simple assault in the 

case docketed CP-51-CR-0004185-2014. Lastly, he was sentenced to twenty 

years of imprisonment for the merged charges of aggravated assault and 

simple assault, to run consecutively with a sentence of five years of probation 

for possession of an instrument of a crime in the case docketed CP-51-CR0004186-2014. 
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Rice did not file a direct appeal. On January 18, 2017, he filed a petition 

under the Post Conviction Relief Act8 alleging ineffective assistance of counsel 

for failure to file a timely appeal. Rice’s appellate rights were subsequently 

reinstated, nunc pro tunc, and he filed this timely appeal. Both Rice and the 

trial court have complied with Pa.R.A.P. 1925. On appeal, Rice challenges the 

sufficiency and weight of the evidence for the charges of possession of an 

instrument of a crime and aggravated assault. 

“Whether sufficient evidence exists to support the verdict is a question 

of law; our standard of review is de novo and our scope of review is plenary.” 

Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016). 

Furthermore,

In assessing Appellant's sufficiency challenge, we must determine 

whether, viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, together with all reasonable 

inferences therefrom, the trier of fact could have found that the 

Commonwealth proved [each] element of the crime beyond a 

reasonable doubt. The evidence need not preclude every 

possibility of innocence and the fact-finder is free to believe all, 

part, or none of the evidence presented.

Commonwealth v. Giron, 155 A.3d 635, 638 (Pa. Super. 2017) (internal 

citations omitted). In addition, the burden of proof may be met with wholly 

circumstantial evidence. Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. 

Super. 2007). 

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8 42 Pa.C.S.A. §§9541-9546.
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“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. 

907(a). A person who “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” is guilty of 

aggravated assault. 18 Pa.C.S. § 2702(a)(1). “To prevail on a theory of 

recklessness, the Commonwealth must show an assailant’s recklessness rose 

to the level of malice, a crucial element to sustain a conviction for aggravated 

assault.” Commonwealth v. Miller, 955 A.2d 419, 422 (Pa. Super. 2008). 

Malice is defined as a “wickedness of disposition, hardness of heart, cruelty, 

recklessness of consequences, and a mind regardless of social duty, although 

a particular person may not be intended to be injured.” Id., quoting 

Commonwealth v. Pigg, 571 A.2d 438, 441 (Pa. Super. 1990). 

Furthermore, “the offensive act must be performed under circumstances 

which almost assure that injury or death will ensue.” Commonwealth v. 

O’Hanlon, 653 A.2d 616, 618 (Pa. 1995). In other words, the defendant 

must be able to reasonably anticipate that death or serious injury will occur 

and ignore the consequences of his actions. See id.

However, “[w]here the victim does not suffer serious bodily injury, the 

charge of aggravated assault can be supported only if the evidence supports 

a finding of an attempt to cause such injury.” Commonwealth v. 

Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012). Attempt requires that the 

defendant took a substantial step in the commission of the intended crime. 
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Id. Specifically, attempt, for the purposes of aggravated assault, “requires 

some act, albeit not one causing serious bodily injury, accompanied by an 

intent to inflict serious bodily injury.” Id. Intent is shown when the defendant 

makes it his conscious object to engage in conduct of that nature or cause 

that result. Id.

Intent may be inferred if the defendant engaged in reckless conduct that 

is likely to result in serious bodily injury. See Commonwealth v. 

Wanamaker, 444 A.2d 1176, 1178 (Pa. Super. 1982); see also 

Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001). In 

Wanamaker, this Court found that firing a gun is the type of conduct that is 

likely to result in serious bodily injury, and therefore the intent element of 

aggravated assault was satisfied. Wanamaker, 444 A.2d at 1178; see also

Commonwealth v. Hunter, 644 A.2d 763 (Pa. Super. 1994) (shooting 

bullets into home sufficient for conviction of aggravated assault). Intent to 

cause serious bodily injury may be demonstrated using circumstantial 

evidence. See Martuscelli, supra at 948.

Here, it is clear that the factfinder was presented with sufficient evidence 

to conclude, beyond a reasonable doubt, that Rice committed the crimes of 

PIC and aggravated assault. Although Freeman could not say conclusively 

who fired the gun, there is ample circumstantial evidence that Rice was in 

possession of the gun at the time it was fired. Freeman testified that Rice 

pointed the gun at her before hiding in the basement, and that she heard 

Lawson beg Rice to stop. When police arrived, the gun was recovered from 
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Rice’s person, and the casings found on Lawson’s living room floor, as well as 

the bullet in the neighbor’s wall, all matched the weapon. 

Moreover, the circumstantial evidence indicates that Rice pointed the 

gun at Lawson and fired the weapon while she was still in the home. Freeman 

heard Rice arguing with Lawson, and heard Rice tell Lawson to “get up” before 

the second gunshot went off. Viewing the evidence in the light most favorable 

to the Commonwealth as verdict winner, this evidence is sufficient to allow 

the factfinder to infer an intent to cause severe bodily harm, and to conclude 

that the elements of aggravated assault were met beyond a reasonable doubt. 

Giron, supra.

Rice also challenges the weight of the evidence for his convictions. 

Appellate review of a weight claim is a review of the exercise of 

discretion, not of the underlying question of whether the verdict 

is against the weight of the evidence. Because the trial judge has 

had the opportunity to hear and see the evidence presented, an 

appellate court will give the gravest consideration to the findings 

and reasons advanced by the trial judge when reviewing a trial 

court’s determination that the verdict is against the weight of the 

evidence. One of the least assailable reasons for granting or 

denying a new trial is the lower court’s conviction that the verdict 

was or was not against the weight of the evidence and that a new 

trial should be granted in the interest of justice. 

However, the exercise of discretion by the trial court in granting 

or denying a motion for a new trial based on a challenge to the 

weight of the evidence is not unfettered. The propriety of the 

exercise of discretion in such an instance may be assessed by the 

appellate process when it is apparent that there was an abuse of 

that discretion. 

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000). “Discretion is 

abused where the course pursued represents not merely an error of judgment, 
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but where the judgment is manifestly unreasonable or where the law is not 

applied or where the record shows that the action is a result of partiality, 

prejudice, bias or ill-will.” Id. at 753, quoting Coker v. S.M. Flickinger 

Company, Inc., 625 A.2d 1181, 1185 (Pa. 1993).

Here the trial court reviewed the evidence and concluded that the verdict 

was not contrary to the weight of the evidence. Nothing in the record suggests 

this determination is manifestly unreasonable, nor is there any evidence in 

the record that the trial court acted due to partiality, prejudice, bias or ill-will. 

The trial court is free to believe all, part, or none of the evidence presented to 

it, and to determine the credibility of the witnesses, and this Court may not 

substitute its own judgement for that of the fact-finder. Commonwealth v. 

Lewis, 911 A.2d 558, 565 (Pa. Super. 2006). Both Freeman and the 

responding officer testified to the events on the evening in question. The trial 

court was free to believe their accounts and weigh the evidence accordingly. 

We can discern no abuse of discretion. Widmer, supra.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/17/2018