Com. v. Burell, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
AYANA BURELL : No. 2500 EDA 2022
Appeal from the Order Entered September 2, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002464-2022
BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED OCTOBER 11, 2023
The Commonwealth appeals from the order vacating the conviction of
Ayana Burell (“Burell”) for simple assault,1 and vacating, in part, the judgment
of sentence. We reverse.
The trial court provided the factual and procedural history of this case,
which we set forth in relevant part, as follows:
On January 16, 2020, around 1:00 P.M., [Burell] instigated
a confrontation with Martina Hudson [(“the Victim”)] on a public
highway [in] Philadelphia, Pennsylvania. [Burell] was charged
with [s]imple [a]ssault[,] and [h]arassment[, 18 Pa.C.S.A.
§ 2709(a)(1)]. [Following convictions for these offenses in
Municipal Court, Burell appealed to the Court of Common Pleas for
a trial de novo, and she] knowingly and intentionally waived her
right to a jury trial and proceeded to a waiver trial . . .. [The
Commonwealth] presented two witnesses as part of its case-in-
chief, and [Burell] presented one as part of hers. [The
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. § 2701(a)(1).
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Commonwealth] first presented the testimony of [the Victim],
followed by that of witness Ronald Hudson [(“Hudson”)], [the
Victim’s] brother. Finally, [Burell] presented the testimony of
witness Corella Lindsey [(“Lindsey”)]. The trial evidence and
testimony are summarized below.
[The Victim] testified [that she] was a passenger in a pickup
truck driven by her mother . . .. [She and her mother were
traveling to] meet up with her sister-in-law. As the truck
approached her sister-in-law’s residence, [the Victim] exited the
vehicle to meet her sister-in-law, who was waiting on the front
steps. [The Victim] testified that as soon as the truck had come
to a stop and she began to exit, an occupant of the vehicle directly
behind her began honking.
As [the Victim] approached her sister-in-law, the driver of
the second vehicle began to yell at her that she had somewhere
to be. [The Victim] testified she walked back to the truck slowly
due to a concussion she had suffered a few days prior.
As [the Victim] approached her mother’s truck, [Burell]
exited the passenger side of the second vehicle and approach[ed]
her from behind. [The Victim] stated that as she was standing in
the truck’s passenger doorway, [Burell] told her that “You’re a
bitch,” and spit on her. [The Victim] claimed that she did not
witness [Burell] spit on her[,] but heard what she believed to be
such an action. According to [the Victim’s] testimony, her
suspicion was confirmed when [Burell] verbalized that she had spit
at her. At this time, [the Victim] saw her brother, Ronald Hudson,
exit his residence and travel down the front stairs. She then asked
him if indeed [Burell] had spit on her, and he confirmed there was
spit on the left side of her jacket. He took pictures of the spit, and
[the Victim] called 911. [The Victim] next testified that during
this brief interaction with her brother, [Burell] threatened to “beat
[her] up[,]” and that[] “[Burell was] yelling, the driver [was]
yelling and beeping the horn.”
[The Victim] next began to walk towards the rear of the
vehicle that [Burell] had been traveling in for the purpose of taking
photos of the vehicle’s license plate. While traveling towards the
rear of the vehicle, [the Victim] began to video record the events
as she passed the driver side of the car. As this was in progress,
[Burell] also began to walk towards the trunk. As [the Victim]
approached the trunk, she verbalized her intent to take the
photos. She then testified that upon reaching the rear of the
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vehicle, she walked past [] Hudson, who was already positioned
behind the vehicle, to begin photographing the plate with her
phone. [The Victim] testified that at this moment, [Burell]
“squares up and she hits me ... [on] my right side of my
face and my neck.” Following the physical altercation, [the
Victim] instructed her sister-in-law to make a second call to the
police. . . . [The Victim] stated that [] Hudson attempted to strike
[Burell] in defense of his sister but failed to make contact.
[The Victim] next testified that at this time the driver of
[Burell’s] vehicle yelled at [Burell] to return to the car stating,
“[Burell] never chill, you never chilling.” By this point in time,
traffic had started to build behind [Burell’s] vehicle. To leave the
scene, [Burell’s] driver waited for the car behind her to reverse
far enough for the driver to back up and turn[, after which Burell]
reentered the vehicle and left the scene.
Following [Burell’s] departure, [the Victim] testified that
[she] went to an urgent care center seeking treatment for her
alleged injuries. However, she was informed that[,] due to the
allegation of a physical assault, she had to be treated at a hospital.
Upon arriving at a nearby hospital, [the Victim] testified she was
also denied medical treatment. [The Victim conceded] that the
altercation left no physical evidence of injuries on her person.
[Hudson testified that, on the day of the incident, he] was
standing in the front doorway of his home anticipating the arrival
of his sister. [The Victim] was coming to his home to drop off an
ACE bandage to be retrieved by his wife, who was waiting outside.
Once his mother and [the Victim] arrived, he saw his sister walk
around the front of the truck to meet his wife. As this was
occurring, [] Hudson heard a car’s horn coming from a vehicle
directly behind his mother’s. He then observed someone, whom
he identified as [Burell], exit the passenger side of the second
vehicle and “run up behind my sister.”
[] Hudson stated that he next saw the two talking and heard
[Burell] say, “that’s why I spit on you.” Following this exchange,
[the Victim] asked [] Hudson if indeed [Burell] had spit on her.
He walked down to the street and confirmed this and was then
asked by his sister to take a photo of the spit. He did so.
However, while [] Hudson was in the process of taking the
photograph, he testified that he could still hear[] “bickering”
between [the Victim] and [Burell], which only escalated when [the
Victim] informed [Burell] of her intent to photograph the second
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vehicle’s license plate, [after which] the latter became
“belligerent.”
. . . As [Hudson] stood with his phone [at hand to take his
own photograph of Burell’s vehicle], the, “next thing I know is, I
just see a hand swinging over top of me” in what he described
as[] “a windmill kind of punch.” However, [] Hudson specified
that he did not see [Burell’s] hand make impact with [the Victim’s]
body, but that he heard the connection. As an immediate
defensive response to this physical action[,] [] Hudson, “swung
back, but I didn’t hit nobody.”
After he recounted hearing the “windmill punch,” [] Hudson
testified that multiple cars had accrued in traffic behind [Burell’s]
vehicle during this altercation. He stated that[,] following the
“windmill punch,” occupants of the other cars exited their vehicles
and, “interject[ed], saying, [‘]well you all not going to be jumping
her out here[’]” and this interjection, “ kind of broke up everything
or whatever.” He heard [Burell’s] driver screaming at [Burell],
demanding she return to the car. [Burell’s] driver subsequently
put her car in reverse and backed up[, after which Burell] entered
[the] vehicle, and the two drove away.
Finally, [Burell] called her only witness, the driver of the
vehicle of [sic] which she had been traveling, Corella Lindsey
[(“Lindsey”)]. Her testimony is as follows. Acting first as a
character witness, [] Lindsey testified that [Burell] possessed a
reputation for peacefulness in the community.
Pertaining to the events in question, [] Lindsey stated that
on the day in question, both [she] and [Burell] were in route to
make deliveries for Uber Eats when their car was forced to stop
behind a truck that was “holding up the block.” She testified that
she began honking her horn after two or three minutes had
passed. She also verbally made [the Victim] aware of the nature
of their travels. In response, [the Victim] became “irate” and told
[] Lindsey that she would have to continue to wait.
[] Lindsey stated that it was at this point that “an argument
broke out,” and that [] Hudson and unidentified others exited []
Hudson’s home. She testified that the situation was compounded
when a bus stopped behind the two vehicles wherein the
passengers exited to urge [the Victim’s] mother’s vehicle to
move.[] Lindsey testified that at no time did she witness [Burell]
hit [the Victim]. When shown a screenshot take from the video
[the Victim] had recorded[,] . . . which displayed a closed fist
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previously identified by both [the Victim] and [] Hudson as
[Burell’s], she gave a non-committal answer that person’s hand
and arm were those of a person who was, “a little thick[.]” When
a longer segment of the video was shown to [] Lindsey, she denied
that a voice on the recording of a woman screaming was [Burell’s].
Finally, [] Lindsey testified that she observed [] Hudson charge
towards [Burell]. She gave only conjecture as to his motive for
such behavior, “I guess he must of thought . . . [Burell] and his
sister was about to fight or something[.]”
Trial Court Opinion, 11/9/22, unnumbered at 1-6 (subheadings, footnote, and
citations to the record omitted; emphasis added).
At the conclusion of the non-jury trial, the trial court convicted Burell of
simple assault and harassment. See N.T., 8/26/22, at 58. The court
sentenced Burell to two years of probation for the simple assault conviction.
See id. at 62-63. A week later, the trial court sua sponte reconsidered its
verdict and entered an order vacating the simple assault conviction based on
its conclusion that the evidence was insufficient. See, e.g., N.T., 9/2/22, at
5. The trial court characterized its ruling as granting a motion in arrest of
judgment, even though Burell filed no such motion. See Trial Court Opinion,
11/9/22, unnumbered at 8. The trial court thereafter sentenced Burell to,
inter alia, ninety days of probation for summary harassment. See N.T.,
9/2/22, at 10. The Commonwealth timely appealed. See Notice of Appeal,
9/29/22. Both the Commonwealth and the trial court complied with Pa.R.A.P.
1925.
The Commonwealth raises the following issue for our review:
Did the lower court err in reconsidering sua sponte its verdict
convicting [Burell] of simple assault[,] when the judgment
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convicting [Burell] of that offense was amply supported by
sufficient evidence?
Commonwealth’s Brief at 4.
Our standard of review for an order granting a motion in arrest of
judgment is as follows:
In passing upon such a motion in arrest of judgment, the
sufficiency of the evidence must be evaluated upon the entire
trial record. All of the evidence must be read in the light most
favorable to the Commonwealth and it is entitled to all reasonable
inferences arising therefrom. The effect of such a motion is to
admit all the facts which the Commonwealth’s evidence tends to
prove.
Commonwealth v. Johnson, 631 A.2d 639, 642 (Pa. Super. 1993) (internal
citations, quotations, brackets and ellipses omitted; emphasis in original).
The Commonwealth challenges the trial court’s order vacating Burell’s
simple assault conviction based on the insufficiency of the evidence. This
Court has previously provided:
In order for a trial court to properly grant a criminal defendant’s
motion in arrest of judgment on the ground of insufficient
evidence, it must be determined that accepting all of the evidence
and all reasonable inferences therefrom, upon which, if believed
the verdict could properly have been based, it would be
nonetheless insufficient in law to find beyond a reasonable doubt
that the defendant is guilty of the crime charged.
Id. Additionally, “[p]ursuant to Pa.R.Crim.P. 621, when a case proceeds non-
jury the court must render a verdict ‘which shall have the same force and
effect as a verdict of a jury.’ Thus, . . . the court’s verdict [is] the same as if
rendered by a jury.” Commonwealth v. Farinella, 887 A.2d 273, 275 (Pa.
Super. 2005). Therefore, “[t]he fact that it was the court that reached the
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verdict [does] not make the verdict less firm than a jury verdict, nor [does] it
make it malleable and capable of later revision by the court.” Id. “[O]nce
announced in open court, there [is] no basis for ‘looking behind’ the verdict to
the factfinder’s reasoning or specific findings of fact, nor [is] there a basis for
correcting what was, upon its face, a perfectly valid verdict.” Id. at 276(internal citation omitted). Following a verdict, “the only options left to [the
defendant are] to attack the sufficiency of the evidence or assert that the
verdict was against the weight of the evidence.” Id.Additionally, while 42 Pa.C.S.A. § 5505, authorizes a trial court to
modify or rescind orders within thirty days after entry, “it is evident that the
reconsideration procedure authorized by 42 Pa.C.S.A. § 5505 does not extend
to the trial court the authority to change a previously recorded verdict of guilty
to one of not guilty.” Commonwealth v. Parker, 451 A.2d 767, 770 (Pa.
Super. 1982) (vacating an order changing a guilty verdict to not guilty, noting
that a trial court’s authority “is limited to consideration of post-verdict motions
in arrest of judgment or the granting of a new trial,” and holding the trial court
“exceeded its post-verdict authority” by sua sponte reconsidering its verdict);
accord Commonwealth v. Robinson, 33 A.3d 89, 93 (Pa. Super. 2011)
(holding that a trial court is unauthorized to sua sponte change its verdict and
vacate a sentence).
Section 2701(a)(1) of the Crimes Code provides that a person is guilty
of simple assault if she “attempts to cause or intentionally, knowingly or
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recklessly causes bodily injury to another.” 18 Pa.C.S.A. § 2701(a)(1)
(emphasis added). The Crimes Code defines “bodily injury” as “impairment
of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301. “A person
commits an attempt when, with intent to commit a specific crime, he does any
act which constitutes a substantial step toward the commission of that crime.”
18 Pa.C.S.A. § 901. The intent to commit simple assault “may be shown by
circumstances which reasonably suggest that a defendant intended to cause
injury.” Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super.
1994). A fact-finder may infer the requisite intent when a defendant takes a
swing at another person’s face in anger. See id. at 1197.
The Commonwealth maintains the trial court erred in two respects.
First: Burell never moved for an arrest of judgment; therefore, there was no
motion to grant, and the trial court thus had no authority to grant the non-
existent motion. See Commonwealth’s Brief at 12. Second: even if the trial
court were authorized to grant the motion, the evidence, under the proper
standard of review, was sufficient to sustain the simple assault conviction.
See id. at 15-20.2
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2 Burell argues the Commonwealth waived its issue insofar as it argues the
evidence was sufficient to sustain the conviction because this issue was not
specified in the Commonwealth’s Rule 1925(b) statement. See Burell’s Brief
at 9. According to Burell, even if the trial court “correctly guess[es]” the issues
an appellant seeks to have reviewed, a vague 1925(b) statement waives the
issues therein. See id. at 12. However, our Supreme Court has recently
directed that, where “the brevity of [an a]ppellant's . . . claim as set forth in
(Footnote Continued Next Page)
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The trial court considered the Commonwealth’s issue and determined
the Commonwealth was due no relief:
[T]he [t]rial [c]ourt’s sua sponte reconsideration of its initial
verdict was predicated only on a finding that [Burell’s] actions did
not meet the threshold of the elements of [s]imple [a]ssault. The
[c]ourt did not reweigh the credibility of any witness nor the
importance or unimportance of any physical evidence. The [c]ourt
simply ruled, based on all evidence presented and acknowledged
at trial, [Burell’s] actions were ultimately insufficient to have
justified the [c]ourt’s original verdict. The reevaluation of what
elements of [s]imple [a]ssault were met in no way contradicts nor
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[the] concise statement represents a good-faith attempt to comply with Rule
1925’s concision requirement, and that it [does] not prevent meaningful
appellate review[,] . . the intermediate court should . . . consider[] the claim
on its merits”). Commonwealth v. Rogers, 250 A.3d 1209, 1225 (Pa.
2021). Our Supreme Court noted that it had previously directed this Court to
review the merits of a claim where the Rule 1925(b) statement was
“exceedingly brief,” but the trial court issued a responsive Rule 1925(a)
opinion resolving the claim on its merits, and the legal issue was “fairly
evident,” and the trial court “readily apprehended the claim. See id. at 1224(discussing and applying Commonwealth v. Laboy, 936 A.2d 1058 (Pa.
2007) (per curiam)).
We observe that, in this case, the Commonwealth raised its sufficiency
argument below. See N.T., 9/2/22, at 7 (Commonwealth arguing that the
trial court was applying the incorrect standard of review in assessing the
sufficiency of the evidence). Further, despite the Commonwealth’s inartful
Rule 1925(b) statement, the trial court readily apprehended and addressed
the sufficiency argument. See Trial Court Opinion, 11/9/22, at unnumbered
8-10. Lastly, a trial court’s authority to grant a motion in arrest of judgment
is intertwined with the sufficiency of the evidence. See Commonwealth v.
Stark, 584 A.2d 289, 291 (Pa. 1990) (stating that “[i]t is well settled that
only causes appearing on the face of the record or insufficiency of the evidence
will justify the grant of a motion in arrest of judgment”). Therefore, we decline
to find waiver in this instance, and, accordingly, address the Commonwealth’s
sufficiency argument. However, we further note, as discussed further infra,
that the single issue which is indisputably preserved, i.e., the trial court’s
authority to sua sponte vacate its own verdict, would, in any event, be
dispositive.
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alters what the [c]ourt originally ruled on the facts present[] in
any manner. Therefore, the [c]ourt properly exercised its right to
vacate a judgment based on facts for which the [c]ourt later
realized were insufficient to make out the statutory offense.
****
In the instant matter, the “windmill punch” by [Burell]
resulted in an inadvertent contact with [the Victim], which caused
no physical marks, blemishes, punches, tears, or scrapes. [The
Victim] received no medical care at any time following the
altercation. The brief pain that [the Victim] allegedly endured
during the event is not the kind the laws of this Commonwealth
were designed to protect against. Such behavior is to be
prevented through social mores and not judicial proceedings.
[Burell] had no intent to injure [the Victim] during the
interaction. [Burell’s] hand motion, that of a windmill gesture over
[] Hudson, was designed only to knock [the Victim’s] phone from
her grasp and halt the recording of events. [Burell’s] arm swing
demonstrated she acted in an unacceptable manner to both the
property and personal space of [the Victim] and [] Hudson, but
also that she had no intention to harm either of them physically.
On the record at [trial] and reconsideration, this [c]ourt noted that
[Burell’s] intentions were to prevent the recording of the
altercation and not to inflict or attempt to inflict bodily injury upon
[the Victim]. While [Burell’s] actions clearly demonstrate
inappropriate, even anti-social behavior, they do not rise to the
level of criminal simple assault.
Trial Court Opinion, 11/9/22, unnumbered at 8-10 (footnote omitted).
Following our review, we conclude the trial court erred in sua sponte
vacating Burell’s simple assault conviction. The trial court convicted Burell of
simple assault. This verdict had the same effect as a jury verdict, and the
trial court had “no more power to change the verdict than it would have had
in a jury trial.” Farinella, 887 A.2d at 275 (internal citation omitted). After
the verdict, Burell had the option of filing a motion in arrest of judgment and
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thereby challenge the sufficiency of the evidence. See id. at 276. Burell filed
no motion. The trial court thus had no motion before it to rule on, and its
order vacating the simple assault conviction was a legal nullity. See Stark,
584 A.2d at 290 (stating that the trial court’s authority over the verdict “is
limited to consideration of post[-]verdict motions in arrest of judgment or
the granting of a new trial”) (emphasis added). Thus, on this basis alone, the
trial court’s order must be reversed.
However, even if the trial court were empowered to sua sponte enter an
order granting a motion in arrest of judgment, the trial court erred by applying
the wrong standard of review. We explain: this Court has held that if a
defendant had moved “for an arrest of judgment, the trial court would have
been required to view the evidence in the light most favorable to the
Commonwealth as verdict winner and could not have altered the verdicts
based upon a redetermination of credibility or a re-evaluation of the evidence.”
Johnson, 631 A.2d at 643. Here, the trial court erred by failing to apply the
appropriate standard, i.e., by not viewing the evidence in the light most
favorable to the Commonwealth as the verdict winner. The Victim testified
that, “[A]s I was walking past, out of nowhere[,] [Burell] balled up the fist
and squares up and proceeded to punch me on the right side of my face.”
N.T., 8/6/22, at 17. Hudson saw Burell swing a closed fist and heard it make
contact with his sister. See id. at 41. The evidence in the light most favorable
to the Commonwealth establishes that, in the midst of the altercation, and
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after Burell yelled and spit at the Victim, Burell swung a closed fist which made
contact with the Victim’s face. This was sufficient to support a finding of
attempt to cause bodily injury. See Richardson, 636 A.2d at 1197.3
Therefore, we reverse the trial court’s order vacating the simple assault
conviction and judgment of sentence, and we remand for reinstatement of
that conviction and reimposition of the probationary sentence.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge King joins this memorandum.
Judge Pellegrini files a concurring memorandum.
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3 We observe the trial court’s assertion that its sua sponte reconsideration “of
its initial verdict was predicated only on a finding that [Burell’s] actions did
not meet the threshold of the elements of [s]imple [a]ssault,” and that it did
not “reweigh the credibility of any witness nor the importance or unimportance
of any physical evidence,” and that it “in no way contradicts nor alters what
the [c]ourt originally ruled on . . ..” Trial Court Opinion, 11/9/22, unnumbered
at 8. We disagree. The trial court, at the conclusion of the trial, found that
the evidence established that Burell had a “balled up” fist, and asked
rhetorically, “Why is she doing that but for the fact that she is taking a swing
at somebody? We just don’t walk around with balled up hands.” N.T.,
8/26/22, at 56. Further, the court found at the conclusion of the trial that
“[Burell] got out of the vehicle . . . for what other purpose but to escalate a
fight . . .. She made physical contact with another person. . . . I believe the
[Victim], that she was punched in the head one time, which is a simple assault
by definition.” Id. Only later did the trial court re-weigh the evidence and
conclude that “it was inadvertent contact that was made with the [Victim].”
N.T., 9/2/22, at 5.
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Date: October 11, 2023
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