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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,2 and 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




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