J-A06029-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LARICIA NICHOLSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 353 WDA 2020

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.: FILED: APRIL 9, 2021

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 
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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,1 harassment,2 and 

possessing an instrument of crime (PIC).3 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/McClendon4 brief in lieu of Pa.R.A.P. 1925(b) concise statement of 

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1 18 Pa.C.S.A. § 2701(a)(1). 

2 18 Pa.C.S.A. § 2709(a)(1).

3 18 Pa.C.S.A. § 907(a). 

4 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

McClendon, 434 A.2d 1185 (Pa. 1981).
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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). 

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, 

7/14/20.5 

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?”6 Appellant’s Brief, at 3. 

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5 This Court’s order also suspended the briefing schedule and retained 

jurisdiction. 

6 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 
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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. 

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.

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 

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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).
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of the evidence. Commonwealth v. Fortson, 165 A.3d 10, 14–15 (Pa. 

Super. 2017). 

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.
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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.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/9/2021
Circulated 03/31/2021 01:59 PM 

COMMONWEALTH OF PENNSYLVANIA 

V. 

LARICIA DESARIE NICHOLSON 

IN THE COURT OF COMMON PLEAS 

OF ERIE COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

NO. 918 of 2019 

OPINION

This matter is before the Court on Appellant's 1925(b) Concise Statement of Matters 

Complained of on Appeal. 

affirmed. 

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For the reasons set forth below, the judgment of sentence sh6@d bed 

BACKGROUND

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Appellant, Laricia Desarie Nicholson, was charged with Simple Assault, Harassment, and 

Possessing Instruments of Crime.' The charges arose from Appellant's actions in assaulting the 

victim, Breonna Payne, on January 6, 2019 near Hunter's Inn Tavern in the City of Erie. The 

incident occurred shortly after Payne and Appellant exited the bar. A non-jury trial was held on 

November 22, 2019, Appellant was convicted Simple Assault and Harassment. Appellant was 

acquitted of the charge of Possessing Instruments of Crime. 

On January 22, 2020, Appellant was sentenced two years of County-supervised probation 

for Simple Assault, and for the conviction for Harassment the Court made a determination of 

guilt without further penalty. 

18 Pa.C.S.A. §§2701(a)(1) , 2709(a)(1) and 18 Pa.C.S.A. §907(a), respectively. 

2 There is a discrepancy regarding the correct spelling of the victim's first name. In the Magisterial Docket and the 

Information, the victim's name is spelled 13reonna Payne. In the transcript of proceednigs from the non jury trial, 

the victim's name is spelled Brianna Payne._ 

1 
On January 23, 2020 Appellant filed a post-sentence motion seeking a lesser period of 

probation or a non-probationary sentence. On January 28, 2020, the Commonwealth filed a 

response thereto. On February 3, 2020, the Court denied the motion. 

On March 4, 2020, Appellant's counsel filed a Notice of Appeal and concurrently filed a 

Statement of Intent to File an AnderslMcClendon Brief. On April 20, 2020, the Court filed a 

1925(a) Opinion and thereafter the record was transmitted to the Superior Court. On July 13, 

2020, the Superior Court, upon consideration of Appellant's "Application for Special Relief," 

remanded the matter with instructions for Appellant to file and serve a concise statement of 

matters complained of on appeal within 14 days. 

On July 28, 2020, Appellant filed an Amended Statement of Matters Complained of On 

Appeal. On appeal, Appellant challenges the sufficiency of the evidence for the conviction for 

Simple Assault. At trial, Appellant, through her testimony and that of her cousin, Shantae Green, 

introduced evidence of self-defense. The Commonwealth introduced evidence to disprove the 

self-defense claim, through cross-examination of witnesses, the introduction of a video of a 

portion of the altercation which was admitted in evidence, as Commonwealth Exhibit No. 1, and 

through the testimony of Payne and an investigating City of Erie Police officer, Officer Peter 

Balesk. 

In the Amended 1925(b), Statement, Appellant asserts the Commonwealth failed to 

establish Appellant attempted to cause or intentionally, knowingly or recklessly caused injury to 

Brianna Payne. Appellant asserts Shantae Green testified Green and Appellant "never engaged" 

Payne inside Hunter's Inn Tavern. "Conversely, Ms. Payne and her friends engaged the 

Appellant which was why they were asked by the bar security to leave the establishment. 

Further, it was Ms. Payne who followed the Appellant to her vehicle and it was Ms. Payne who 

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struck the Appellant." See Amended Statement of Maters Complained of On Appeal, I2. 

Essentially, Appellant asserts the evidence was insufficient for the conviction of Simple Assault 

because of Green's testimony the victim, not Appell4, was the -instigator of some verbal 

disagreement inside the bar, and Payne struck the first blow outside the bar.. In other words. 

Appellant raises the claim of self-defense. 

LEGAL ST'ANDA"S 

Simple Assault at 18 Pa.C.S.A. §270I (a)(1) is defined as follows: 

(a) Offense defined. — Except as provided u6der section 2702 (relating to 

aggravated assault), a person is guilty of assault if he: 

(1) attempts to cause or intentionally, knowingly or recklessly causes bodily 

injury to another. 

18 Pa.C.S.A. §27d1(a)(1), 

18 Pa.C.S,A. §505 sets forth when use of force in!self-defense is justifiable. In pertinent 

part, the statute provides: 

§ 505. Use of force in self-protection 

(a) Use of force justifiable for protection of •he person. — The use of force 

upon or toward another person is justifiable whin the actor believes that such 

force is immediately necessary for the purpose of protecting: himself against the 

use of unlawful force by such other person on the present occasion. 

18 Pa.C.S.A. §545(a). 

Where a defendant introduces evidence of self-defense, the Commonwealth bears the 

burden of disproving the self-defense claim beyond a seasonable doubt. Commonwealth v. 

Houser, 18 A.3d 1128, 1135 (Pa. 2011). "Although the Commonwealth is required to disprove a 

claim of self-defense ... [the trier of fact] is not required to believe the testimony of the 

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defendant who raises the claim." Commonwealth t. Houser, 18 A.3d at 1135, citing 

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Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1990). 

The standard of review for sufficiency of the evidence claims is well-established: 

The standard we apply in reviewing the sufficiency of the evidence is 

whether viewing all the evidence admi4ed at trial in the light most 

favorable to the verdict winner, there is sufficient evidence to enable a 

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 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 th evidence is so weak and 

inconclusive that as a matter of law no pr bability of fact may be drawn 

from the combined circumstances. The ommonwealth may sustain its 

burden of proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evide ce. Moreover, in applying the 

above test, the entire record must be evaltiated and all evidence actually 

received must be considered. Finally, the finder 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. 

Commonwealth v. Smith, 206 A.3d 551, 557 (Pa. Super. 2P19) (citation omitted). 

DISCUSSION

Viewing the evidence against these standards, 4ppellant's claims, are wholly without 

merit. 

Viewing the evidence in the light most favora le to the Commonwealth, there was 

sufficient evidence to find the Commonwealth met its burden of proof in establishing Appellant 

committed Simple Assault at 18 Pa.C.S.A. §§2701(a)( ). The record established Appellant 

attempted to cause or intentionally, knowingly or recklessly caused bodily injury to Payne. The 

Commonwealth disproved Appellant's claim of self-defense beyond a reasonable doubt. 

4 
Appellant's contentions Payne and her friends "engaged" Appellant inside the bar, and 

Ms, Payne followed Appellant to her vehicle and struck Appellant are belied by the credible 

evidence. The testimony offered in support of the defense of self-defense was not credible. 

The testimony of Breonna Payne established the following, Payne went to Hunter's Inn 

Tavern to attend a benefit for a friend's mother. Tr, p. 4. Appellant and others arrived five to ten 

minutes later. Tr., p. 4. Shortly after, Appellant and her friends approached the table where 

Payne was sitting, Appellant tied her hood around her head and tightened her boots and began to 

"cause problems." Tr., pp. 4-5. A bouncer who apparently overheard what transpired told Payne 

to go ahead and leave. Tr., p. 5. Payne left with her friend. Payne got in her vehicle and moved 

it closer to her friend's vehicle so the friend could transfer contents from Payne's vehicle to her 

own. Tr., p. b. As the transfer of items was completed, Appellant and others surrounded 

Payne's vehicle. Appellant approached Payne and asked Payne questions about the father of 

Appellant's child. Appellant went "on and on and on" and then struck Payne with her hand. A 

physical altercation between Appellant and Payne ensued, during which Payne "tripped over 

someone or something." Payne fell and felt a cut to her face and by her eye. Tr., pp 6-7. The 

police arrived; someone pushed Appellant off of Payne and then Payne got up off the ground. 

Tr., p. 8. After Appellant's friends got in a car they called Payne. During a phone call, Payne 

heard Appellant'state, "That's why l cut you B." Tr., p. 8. Payne went to the emergency room 

of UPMC Hamot Hospital for treatment because her face ,.vas bleeding. Tr„ p. 8. 

Daring Payne's testimony the Commonwealth played several times a video taken by 

Appellant's friend. The video was admitted in evidence as Commonwealth Exhibit No. 1. Tr., 

pp. 8, 11, 41. The video depicts Payne on the ground, on the bottom, with Appellant on top of 

her. Payne is seen struggling beneath Appellant. Payne described the video as depicting Payne 

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"fighting for my life." Tr„ p. 10. People in the background are heard to encourage Appellant by 

her nickname, "Nene", saying "Get her, Nene," Tr„ p, 10. 

Payne was interviewed by Officer Balesk at the hospital shortly after the incident, Tr., 

pp. 11-12. Payne testified the information she provided to Officer Balesk was consistent with 

Payne's testimony at trial. Tr„ p, 12. Payne identified for the Court the residual scars :from her 

facial injuries, which include a scar to her left cheek and another scar from her eyebrow to her 

lower eye. Tr., p. 13. Payne testified she did not know what specifically caused the lacerations 

to her face. "All I know is when we fell, 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." Tr., p. 14. 

Officer Balesk testified as follows. Balesk interviewed Payne and observed her facial 

injuries in the emergency room. 'Payne reported to Balesk the incident technically verbally 

started inside Hunter's Inn and the physical altercation occurred outside the bar near Payne's 

parked vehicle. Payne reported she was knocked down or tripped, and during the altercation she 

was cut in the face and struck multiple tunes. Payne told the officer she wanted to- pursue 

charges against Appellant. Payne's trial testimony was consistent with the information Payne 

reported to Balesk at the hospital. Tr., pp. 30--41. 

Shantae Green, Appellant's cousin and friend, testified as follows. Green did not see 

Payne inside the bar, only Payne's friends. Tr., pp, 44.-45, 51. Green did not observe Payne 

speak to Appellant inside the bar. Tr., p. 52. Yet Green and Appellant left the bar approximately 

two minutes after Payne did. Tr., p. 45. 1" altercation occurred outside over the father of 

Appellant's child, Tr., p, 56. 

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Appellant's testimony is summarized as follows. Appellant likewise denied seeing Payne 

inside the bar, Tr., pp. 61, 69. A verbal exchange occurred between Appellant and Payne, while 

Appellant was inside her own vehicle, Tr., pp. 62, 70. Appellant exited her vehicle and 

continued the altercation. Tr., pp. 63, 70, In Appellant's words, they met half-may between their 

vehicles and Payne struck Appellant first, in the face. Tr., p. 63. Appellant fough• back, in 

defense of her unborn child After Payne landed on the ground, Appellant got on top of Payne 

to "stabilize" her. Tr. pp. 65, 71-72. Appellant denied seeing injuries or blood on Payne. Tr., 

pp. 67. After the incident, Appellant posted on social media, "I just got done whooping this 

musty b--- a--." Tr, pp. 74-75. 

At the conclusion of the testimony, the Court made credibility findings, specifically 

finding as credible the testimony of Breonna Payne and Officer Balesk. Tr., pp, 88. 

The evidence was sufficient to support the conviction for Simple Assault. The 

Commonwealth disproved Appellant's claim of self-defense beyond a reasonable doubt. The 

testimony of Appellant and Green contradicts Appellant's claim that Payne was the instigator 

inside the bar. Appellant and Green left the bar shortly after Payne exited the bar. According to 

Appellant, Appellant went to her vehicle and got inside. If this was accurate, then Appellant had 

the opportunity to remain inside the vehicle and/or to drive away. Instead, Appellant exited the 

vehicle and escalated the event. 

The video clearly shows the victim struggling on the ground beneath Appellant. 

Appellant demonstrated aggressive behaviors on top of Payne. Third persons can be heard to 

cheer on Appellant. Appellant offered no plausible explanation Why she felt compelled to get on 

top of Payne, after Payne fell to the ground, in order to subdue or "stabilize" her. 

3 Appellant testified she learned she was pregnant that very day, and went to the bar to celebrate , T'r., pp. 63--6-4. 

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The credible evidence amply supports the conclusion Appellant was the initial aggressor, 

both inside the bar and outside the bar, and dispels the notion Appellant acted in self-defense. 

Furthermore, the record establishes Appellant bragged on social media after the event, "I just got 

done whooping this musty b---- a--." 

CONCLUSION

Appellant's Amended 1925(b) claims are wholly without merit. For the above reasons, 

the judgment of sentence should be affirmed. The Clerk of Courts is hereby directed to transmit 

the record to the Superior Court. 

BY THE COURT: 

DO ,- Daniel J. '; a J. Jr., Judge 

cc: District Attorney's Office 

..Emily. M. Mefski, Esq., Office of the Public Defender 

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