J-S44011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMAL L. RICE                              :
                                               :
                       Appellant               :   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,4 firearms not to be carried

____________________________________________


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).
J-S44011-18



without a license,5 PIC, simple assault,6 and REAP in the case docketed at CP-

51-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
____________________________________________


5
    18 Pa.C.S. § 6106(a)(1).

6
    18 Pa.C.S. § 2701.

7
    18 Pa.C.S. § 2702(a).


                                           -2-
J-S44011-18



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-CR-

0004186-2014.




                                     -3-
J-S44011-18



        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).




____________________________________________


8
    42 Pa.C.S.A. §§9541-9546.

                                           -4-
J-S44011-18



      “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.

                                        -5-
J-S44011-18



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

                                        -6-
J-S44011-18



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,

                                     -7-
J-S44011-18



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




                                        -8-
