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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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