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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CAIRA BYRD

                            Appellant                 No. 2776 EDA 2014


                      Appeal from the Order June 13, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0001042-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                       FILED SEPTEMBER 04, 2015

        Appellant, Caira Byrd, appeals from the order entered June 13, 2014,

in the Court of Common Pleas of Philadelphia County, which denied Byrd’s

petition for a writ of certiorari following her municipal court conviction of

simple assault.1     After review, we reverse and remand with instructions.

        On January 11, 2014, after a night of drinking with relatives, Byrd

engaged in an argument with her fiancé, Anthony Robinson.            When the

argument escalated, Robinson called the police at approximately 3:11 a.m.

“to cool everything down.” N.T., Preliminary Hearing, 2/10/14, at 5. After

the police arrived, Robinson allegedly gave a signed statement indicating

that Byrd had punched him in the mouth and then continued to hit him

____________________________________________


1
    18 Pa.C.S.A. § 2701(a).
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several times with her fist. See id., at 7. Byrd was subsequently arrested

and charged with simple assault.

     At the municipal court hearing, Robinson denied that Byrd had hit him

on the night of the incident.   See id., at 6.    When confronted with his

statement, Robinson acknowledged his name, age, race, sex and signature

on the statement, but denied having any memory of making the allegations

contained therein. See id., at 7. He admitted that he had had “[q]uite a

lot” to drink that night and consequently had little memory of what had

happened. Id. at 8. Although Robinson conceded that his mouth hurt the

next morning, he contended that he had bit his tongue. See id., at 9. When

the Commonwealth asked Robinson if he recognized a picture of what

purported to be his swollen face, he replied, “That’s me? It don’t look like

me.” Id., at 10. The municipal court proceeded to enter into evidence the

picture, but did not admit the statement.

     At the close of the hearing, the municipal court originally ruled to hold

the case under advisement for 90 days until Byrd and Robinson completed

anger management counseling. See id., at 14-16. After Robinson and Byrd

left the courtroom, the assistant district attorney returned to inform the

court: “Your Honor, when I went out into the hallway, the defendant was

yelling and talking loud to the complainant.”    Id., at 16.   Without further

discussion, the municipal court summarily found Byrd guilty of simple

assault and sentenced her to eighteen months’ probation.




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     Thereafter, Byrd filed a petition for writ of certiorari to the Philadelphia

Court of Common Pleas. Following a hearing, the trial court denied Byrd’s

petition and upheld the municipal court’s conviction. This timely appeal

followed.

     Byrd   maintains    that   the   Commonwealth      presented    insufficient

evidence to sustain the conviction. We agree.

     We review a challenge to the sufficiency of the evidence as follows.

            The standard we apply when reviewing the sufficiency of
     the evidence is whether viewing all the evidence admitted at trial
     in the light most favorable to the verdict winner, there is
     sufficient evidence to enable the fact-finder to find every
     element of the crime beyond a reasonable doubt. In applying the
     above test, we may not weigh the evidence and substitute our
     judgment for the fact-finder. In addition, we note that the facts
     and circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant’s guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence. Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     trier of fact while passing upon the credibility of witnesses and
     the weight of the evidence produced is free to believe all, part or
     none of the evidence. Furthermore, when reviewing a sufficiency
     claim, our Court is required to give the prosecution the benefit of
     all reasonable inferences to be drawn from the evidence.

            However, the inferences must flow from facts and
     circumstances proven in the record, and must be of such volume
     and quality as to overcome the presumption of innocence and
     satisfy the jury of an accused’s guilt beyond a reasonable doubt.
     The trier of fact cannot base a conviction on conjecture and



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      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      A person is guilty of simple assault if she “attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to another[.]” 18

Pa.C.S.A. § 2701(a)(1).

      Instantly, the municipal court determined that although Robinson had

adopted certain items on his prior statement, including his name, age, race,

sex, date of birth and signature, he expressly disavowed the allegations in

the statement itself. See N.T., 2/10/14, at 11. Therefore, the municipal

court did not admit the statement into evidence. See id., at 11-12. The

Commonwealth      argues   on   appeal   that   the   statement   was,   in   fact,

admissible.   However, if the Commonwealth disagreed with the municipal

court’s decision to exclude the prior statement from evidence, it could have

preserved this issue by demanding a de novo trial or seeking certiorari

review. As it stands, the statement is not part of the record before us, and

we may not consider it.

      The only other substantive evidence admitted at the municipal court

hearing was the photograph shown to Robinson at trial. Robinson maintained

that the photograph did not look like him, claimed that the alleged bruising

looked like freckles, and that the alleged swelling could have resulted from

drinking alcohol on the night of the incident. See N.T., 2/10/14, at 10.

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      In the trial court’s Rule 1925(a) opinion, the court explained that it

found the evidence was sufficient to support Byrd’s conviction based upon

information police gathered on the night of the dispute, “including

statements from Mr. Robinson and the fact that he was physically bruised

about the face with significant swelling to both eyes.” Trial Court Opinion,

11/17/14, at 4. As we have previously noted, Robinson’s statement was not

admitted into evidence, and therefore, the trial court could not consider the

statement as substantive evidence of the assault. We further note that the

record is devoid of any indication that the police determined that Robinson

was physically bruised or exhibited significant swelling. Rather, this fact is

only inferable from the picture of Robinson offered into evidence.

      “[W]here the [s]ole evidence of guilt or an element of the offense is

inferential, then the inferred fact must follow beyond a reasonable doubt

from the proved facts.” Commonwealth v. Jones, 364 A.2d 368, 372 (Pa.

Super. 1976). Here, the Commonwealth was only able to prove that

Robinson called 9-1-1 for assistance due to an argument with Byrd and that

an argument had occurred. Without Robinson’s statement, there is simply no

evidence by which the trial court could have reasonably attributed the

alleged swelling and bruising depicted in the picture to an assault by Byrd.

There was no further testimony to establish what caused the swelling.

Without more, the photograph alone simply does not prove that Byrd caused

bodily injury to Robinson. See 18 Pa.C.S.A. § 2701(a)(1).


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      We find that the evidence admitted in the municipal court hearing was

insufficient to support Byrd’s conviction.   Accordingly, we reverse the trial

court’s order denying Byrd’s petition for writ of certiorari and remand with

instructions to vacate Byrd’s judgment of sentence for simple assault.

      Based upon our finding that the evidence was insufficient to support

the verdict, we need not address Byrd’s remaining claim that the municipal

court erroneously relied upon statements made by the assistant district

attorney regarding Byrd’s conduct in the hallway at the conclusion of the

hearing.

      Order reversed. Case remanded with instructions consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/2015




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