Com. v. Burt, K.

J-S20027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KARISSA ALEXANDRIA BURT :
:
Appellant : No. 1290 WDA 2018
Appeal from the Judgment of Sentence Entered May 2, 2018
In the Court of Common Pleas of Elk County Criminal Division at No(s):
CP-24-CR-0000293-2015
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 22, 2019
Karissa Alexandria Burt appeals from the judgment of sentence entered
following her jury conviction for aggravated assault. 1 Burt challenges the
sufficiency of the evidence. We affirm.
The Commonwealth presented the following evidence at trial. Kayla
Baker, the victim, testified that she was invited to attend a party where her
ex-boyfriend, David Wolfe, and his new girlfriend, Burt, would also be in
attendance. N.T. Trial, 1/17/18, at 39-43. At the party, a fight began between
Burt and the victim. Prior to this fight, the victim admitted to having three
alcoholic beverages and also taking her prescription medication that included
Adderall and Klonopin. Id. at 66.
____________________________________________
1 18 Pa.C.S.A. § 2702(a)(1). The trial court also found her guilty of the
summary offenses of harassment, 18 Pa.C.S.A. § 2709(a)(1), and criminal
mischief, 18 Pa.C.S.A. § 3304(a)(5).
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The altercation started when Burt told the victim and her friend to stop
leaning on her vehicle. Id. at 53-54. Although the victim complied, Burt head-
butted the victim on the bridge of her nose causing her to fall on her back.
Id. at 54. When the victim tried to get up, Burt came from behind and “puts
her nails in my eyes and chomps down on my ear.” Id. at 55. The victim
described the pain from Burt biting her ear as “extreme pain.” Id. at 56. She
also testified, “I’ll never forget the sound that it made when she crunched
through little bones in my ear.” Id. Despite attempts to get Burt off of her,
Burt did not move. Eventually, the victim was able to get Burt off of her by
“roll[ing] her over my shoulder.” Id. At this point the victim was now on top
of Burt. Id. at 58. Burt then bit the “crease” of the victim’s left arm. Id.
Afterwards, she proceeded to get on top of the victim and “starts swinging
and trying to head-butt me from up above.” Id. at 59. Eventually, the victim’s
friend was able to get Burt off of her but the victim remained on the ground
in a fetal position because her head hurt “very bad.” Id. at 60. Burt then
began to kick the victim in the head, neck, and back with steel toed boots
approximately ten times. Id. at 60, 85. This continued until another friend of
the victim pulled Burt off of her.
Another friend of the victim drove her to the hospital where Dr. Nawaz
Suddle assessed that the victim’s “right earlobe was bitten off.” Id. at 61,
93. She testified that “there was complete loss of tissue on part of the earlobe,
right earlobe” and her left eye was swollen and bruised. Id. at 94. Additionally,
she testified that the victim had swelling and bruising to her forehead, “she
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had a bite mark on her left elbow area in the elbow crease,” and her right
hand was swollen and bruised. Id. Dr. Suddle cleaned her wounds and gave
her pain medication because “she was in a lot of pain.” Id. She also scheduled
reconstructive surgery for the victim for the loss of her earlobe. Id. at 95. This
surgery consisted of the surgeon taking “a skin graft from [her] right hip” to
replace the skin for her ear. Id. at 86. The reconstructive surgeon testified
that there was no way to make the victim’s ear look like what it did before the
injury. Id. at 121. The victim also testified that as a result of the fight, her
hearing is muffled and she has ongoing pain in her right ear. Id. at 85.
Burt testified in her defense that the victim started the fight and that
she was left with no other choice but to bite the victim because she was biting
her shoulder. Id. at 222, 225.
The trial court sentenced Burt to 42 to 120 months’ incarceration. Burt
filed a post-sentence motion which the trial court denied. This timely appeal
followed.
Burt raises one issue: “Whether there was sufficient evidence to sustain
[Burt’s] conviction and sentence for [a]ggravated [a]ssault- [c]ause [s]erious
[b]odily [i]njury?” Burt’s Br. at 7. Burt maintains that “[t]he testimony
presented by the defense markedly rebuts that which was provided by the
Commonwealth and, from which, the jury could not have possibly concluded
that [Burt] acted with malice aforethought.” Id. at 16.
Burt’s argument is a challenge to the weight rather than the sufficiency
of the evidence. See Commonwealth v. Gibbs, 981 A.2d 274, 281-82
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(Pa.Super. 2009) (“An argument that the finder of fact should have credited
one witness’ testimony over that of another witness goes to the weight of the
evidence, not the sufficiency of the evidence”). However, she did not preserve
a weight claim at the sentencing hearing, in her post-sentence motion, or in
her Pa.R.A.P. 1925(b) statement. Therefore, any weight claim is waived. See
Pa.R.A.P. 302(a). Further, because she failed to develop a true sufficiency
claim, she has waived such a claim as well. Commonwealth v. Thoeun Tha,
64 A.3d 704, 713 (Pa.Super. 2013).
In any event, the evidence was sufficient. A claim challenging the
sufficiency of the evidence requires that we view the facts in the light most
favorable to the verdict winner, with all reasonable inferences in the
Commonwealth’s favor. Commonwealth v. Sweitzer, 177 A.3d 253, 257
(Pa.Super. 2017). Our standard of review is de novo and our scope of review
is plenary. Commonwealth v. Edwards, 177 A.3d 963, 969 (Pa.Super.
2018).
The jury convicted Burt under the subsection of aggravated assault for
serious bodily injury. The statute defines aggravated assault as follows: “[a]
person is guilty of aggravated assault if he: 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.A. § 2702(a)(1). Serious bodily injury is defined as “bodily
injury which creates a substantial risk of death or which causes serious,
permanent, disfigurement, or protracted loss or impairment of the function of
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any bodily member or organ.” 18 Pa.C.S.A. § 2301. “The intent to cause
serious bodily injury . . . may be proven by direct or circumstantial evidence.”
Commonwealth v. Hall, 830 A.2d 537, 542 (Pa. 2003). This intent can also
“be gleaned from the other circumstances surrounding the defendant’s attack
on the victim.” Commonwealth v. Burton, 2 A.3d 598, 602 (Pa.Super.
2010) (en banc) (quoting Commonwealth v. Alexander, 383 A.2d 887, 889
(Pa. 1978)).
Viewing the evidence in the light most favorable to the Commonwealth,
there was sufficient evidence to sustain the aggravated assault conviction.
First, the Commonwealth established serious bodily injury from the testimony
of both the victim and Dr. Suddle that the victim’s ear was bitten off causing
disfigurement. The disfigurement was so detrimental that the victim had to
have reconstructive surgery on her ear. Despite this surgery, the victim’s ear
will never look the same. Second, the Commonwealth established that Burt
intentionally caused serious bodily injury. The evidence established that the
“circumstances surrounding” Burt’s assault of the victim, included that Burt
initiated the fight and only stopped biting the victim’s ear when the victim was
able to “roll” her off of her. Nothing in the record supports Burt’s contention
that the evidence was insufficient. Therefore, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2019
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