Opinion
J-A06029-21 No. 353 WDA 2020
04-09-2021
COMMONWEALTH OF PENNSYLVANIA v. LARICIA NICHOLSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered January 22, 2020
In the Court of Common Pleas of Erie County Criminal Division at No(s): 918 of 2019 BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J. MEMORANDUM BY LAZARUS, J.:
Laricia Nicholson appeals from the judgment of sentence entered in the Court of Common Pleas of Erie County. After careful review, we affirm based on the well-reasoned opinion authored by the Honorable Daniel J. Brabender.
On January 6, 2019, Nicholson and the victim, Breonna Payne, engaged in a verbal altercation at the bar of Hunter's Inn. N.T. Non-Jury Trial, 11/22/19, at 4-5. A bouncer who overheard the argument told Payne to leave the bar. Id. at 5. Payne testified that she and a friend left the bar and went to her car, and Nicholson and her friends followed them and surrounded the car. Id. at 6. Payne testified that Nicholson questioned her about the father of Nicholson's child, and then Nicholson struck Payne with her hand and a physical altercation ensued. Id. at 6-8. A video admitted into evidence depicted Payne on the ground, struggling beneath Nicholson, who was on top of her. In the background people are heard encouraging Nicholson to "get her." Id. Payne testified she was "fighting for [her] life." Id. at 10.
Payne suffered lacerations to her face, leaving a scar to her left cheek and another from her eyebrow to her lower eye. Id. at 13. Payne testified that she did not know what caused the lacerations, "something sharp-I don't know what it was. I just remember it just went across my face and then by my eye. That's when I just really started fighting for my life." Id. at 14.
Nicholson was charged with simple assault, harassment, and possessing an instrument of crime (PIC). Following a bench trial before Judge Brabender, the court convicted Nicholson of simple assault and harassment, and acquitted her of PIC.
On January 22, 2020, Judge Brabender sentenced Nicholson to two years of county-supervised probation and ordered her to pay costs and restitution and complete 25 hours of community service. On January 23, 2020, Nicholson's trial counsel, Michael DeJohn, Esquire, filed a post-sentence motion, which was denied on February 3, 2020. On March 4, 2020, counsel filed a timely notice of appeal and a notice of intent to file an Anders/McClendon brief in lieu of Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(c)(4) (providing that, in criminal case, counsel may file of record and serve on judge statement of intent to file Anders/McClendon brief in lieu of filing Rule 1925(b) statement).
Anders v. California , 386 U.S. 738 (1967); Commonwealth v. McClendon , 434 A.2d 1185 (Pa. 1981).
On April 23, 2020, appellate counsel, Emily M. Merski, Esquire, entered her appearance on Nicholson's behalf. After reviewing Attorney DeJohn's notice of intent to file an Anders/McClendon brief in lieu of a Rule 1925(b) statement, Attorney Merski filed a motion for special relief in this Court. On July 13, 2020, this Court granted counsel's motion and entered an order remanding the case so that Attorney Merski could file a Pa.R.A.P. 1925(b) statement and the court could file a Rule 1925(a) opinion. See Order, 7/14/20.
This Court's order also suspended the briefing schedule and retained jurisdiction.
On July 27, 2020, counsel filed a Rule 1925(b) statement. The trial court filed its Rule 1925(a) opinion on September 8, 2020. Nicholson raises the following issue for our review: "Whether the Commonwealth presented insufficient evidence to convict [Nicholson] of [s]imple [a]ssault and [h]arrasment?" Appellant's Brief, at 3.
The issue of whether the evidence was sufficient to support Nicholson's conviction of harassment was not included in her Rule 1925(b) statement. See Rule 1925(b) Statement, 7/28/20. That issue, therefore, is waived. See Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived."); see also Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) ("in order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925"; "[a]ny issues not raised in a 1925(b) statement will be deemed waived"). "The rule announced in Lord has been strictly applied by our appellate courts." Commonwealth v. Phinn , 761 A.2d 176, 178 (Pa. Super. 2000). --------
Our standard of review is well settled:
As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.Commonwealth v. Franklin , 69 A.3d 719, 722-23 (Pa. Super. 2013) (internal quotations and citations omitted). Finally, the trier of fact, while passing upon the credibility of witnesses, is free to believe all, part, or none of the evidence. Commonwealth v. Fortson , 165 A.3d 10, 14-15 (Pa. Super. 2017).
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld.
To prove simple assault, the Commonwealth must establish that Nicholson attempted to cause, or intentionally, knowingly, or recklessly caused, bodily injury to Payne. See 18 Pa.C.S.A. § 2701(a)(1). Nicholson argues Payne was the aggressor and that Payne struck the first blow outside the bar. Nicholson claims, therefore, that she was acting in self-defense and the Commonwealth failed to disprove self-defense beyond a reasonable doubt. Appellant's Brief, at 7-8. See Commonwealth v. Houser , 18 A.3d 128, 1135 (Pa. 2011).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of Judge Brabender, we conclude Nicholson's claim is meritless. Although Nicholson testified that she was not the aggressor, Judge Brabender found her testimony was not credible. See Trial Court Opinion, 9/8/20, at 3-8 (concluding evidence, including victim's testimony and video admitted into evidence, supported conviction of simple assault; testimony offered in support of self-defense was not credible). Accepting the trial judge's credibility determinations and viewing all evidence admitted at trial in the light most favorable to the Commonwealth as verdict winner, there was sufficient evidence to support Nicholson's conviction of simple assault. See 18 Pa.C.S.A. § 2701(a); Fortson , 165 A.3d at 14.
We, therefore, rely on Judge Brabender's opinion to affirm Nicholson's judgment of sentence. We direct the parties to attach a copy of that opinion in the event of further proceedings.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/9/2021
Image materials not available for display.