Com. v. Burell, A. ( 2023 )

J-A17022-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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.*
CONCURRING MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 11, 2023
I join the majority memorandum in full. I agree that the trial court
exceeded its authority by sua sponte vacating Burell’s conviction for simple
assault and that the testimony at trial was sufficient to establish the elements
of that charge. Viewing the evidence in the light most favorable to the
Commonwealth, the victim’s testimony establishes the elements of simple
assault by attempt to inflict bodily injury, even though no bodily injury
resulted. See N.T., 8/26/22, at 12 (“And, as I turn to get a picture of the
license plate Ayana—or, the defendant, squares up and she hits me. She
connected with my right side of my face and my neck.”); id. at 17 (“And, as
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* Retired Senior Judge assigned to the Superior Court.
J-A17022-23
I was walking past, out of nowhere the defendant balled up the fist and
squares up and proceeded to punch me on the right side of my face.”).
The trial court’s analysis credited Mr. Hudson’s testimony that Burell
launched a “windmill punch” toward the victim with the intent to knock her
cell phone out of her hand.1 See N.T., 9/2/22, at 4-6; Trial Court Opinion,
11/9/22, at 9-10 (pagination supplied). It made the same factual finding at
the conclusion of the trial. N.T., 8/26/22, at 55 (“She did a windmill, over
the— punch. Exactly how he described it. She tried to knock the cell phone
I guess out of the woman’s hand. I have no idea why, but as he said, he
heard the contact.”). This is precisely the type of credibility determination
that rests with the trial court in a bench trial. See Commonwealth v.
Konias, 136 A.3d 1014, 1023 (Pa. Super. 2016).
I write separately to note that when the judgment of sentence is
reinstated on remand, Burell is entitled to raise a challenge to the weight of
the evidence to support her conviction based on this credibility finding in a
timely post-sentence motion. Pa. R. Crim. P. 607(A)(3) & 720(B)(1)(a). A
post-sentence motion must be filed within ten days of sentencing. Pa. R.
Crim. P. 720(A)(1). As the trial court reconsidered its verdict one week after
trial, Burell did not previously have a full opportunity to challenge the weight
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1 At the conclusion of trial, the trial court went so far as to describe Mr. Hudson
as “probably the most credible man I have heard testify in a long time[.]”
N.T., 8/26/22, at 54.
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of the evidence or raise any other claim in a post-sentence motion. Nothing
in our decision today prevents her from doing so on remand.
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