Com. v. Mader, G. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GREGORY ALLEN MADER,
Appellant No. 1057 MDA 2014
Appeal from the Judgment of Sentence May 22, 2014
in the Court of Common Pleas of Perry County
Criminal Division at No.: CP-50-CR-0000400-2013
BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 12, 2015
Appellant, Gregory Allen Mader, appeals from the judgment of
sentence entered after his jury conviction of one count of aggravated
assault, 18 Pa.C.S.A. § 2702(a)(1), and one count of simple assault, 18
Pa.C.S.A. § 2701(a)(1). Appellant challenges the sufficiency of the evidence
and the effectiveness of counsel. We affirm the judgment of sentence and
defer the ineffectiveness claim until collateral review.
We derive the following recitation of facts from the trial court’s opinion
and our independent review of the March 24, 2014 trial transcript:
The charges arise from a single incident, which occurred on March 25,
2013. Starting in February of 2013, co-defendant, Tricia Kreiser, began a
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*
Retired Senior Judge assigned to the Superior Court.
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relationship with the victim, Robert Mourey. During the day of March 25,
2013, the two engaged in childish arguing and name-calling via text
messages. (See N.T. Trial, 3/24/14, at 16). At some point, Tricia’s
husband, Gerald Kreiser, got involved in this argument. (See id. at 17).
Tricia Kreiser asked Appellant to accompany her to Mourey’s home to collect
some clothing. (See id. at 277). Appellant accompanied Tricia and Gerald
Kreiser to the residence. (See id. at 143).
After they arrived, the three entered the garage. (See id.). Tricia
then knocked on the inner door and told Mourey, in colorful language, to
answer. (See id. 94). When Mourey did not answer, Tricia walked across
the garage to head toward the patio. (See id. at 230). Appellant followed.
(See id. at 352). Shortly after, Mourey answered the door with a knife in
his right hand. (See id. at 320). On opening the door, Gerald Kreiser
pushed Mourey back against a wall and knocked the knife from his hands.
(See id. at 45-46). Appellant and Tricia then entered the residence. (See
id. at 46). At trial, Gerald Kreiser testified that after he disarmed Mourey,
the two began “wrestling” and “scuffling.” (Id. at 323). The fight continued
back and forth between several rooms of the house. (See id. at 325).
During the fight, Gerald threw Mourey through a glass table. (See id.
at 234). After that, he thrust Mourey’s head through a wall. (See id. at
50). Mourey testified that during the melee, Appellant broke a wooden chair
over his head. (See id. at 48). Mourey testified that Appellant and Gerald
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Kreiser hit him twenty to thirty times. (See id. at 51). Appellant testified
that he “really may have” broken the chair over Mourey’s back. (Id. at
355). Appellant also testified that he “kicked [Mourey] as hard as [he]
could.” (Id. at 354). After the fight, Mourey went upstairs to clean up.
(See id. at 52). After he cleaned up, Tricia Kreiser took him to the Holy
Spirit Hospital. (See id. at 53). At the hospital, medical examination
revealed that Mourey suffered from a broken nose, broken orbital bone,
lacerations on his hand, leg, and head, and acute renal failure. (See id. at
54, 68).
The next morning, March 26, 2013, Pennsylvania State Police Trooper
Kenneth Rouse III, at the request of his supervisor, began investigating the
case. (See id. at 128-30). Trooper Rouse visited Mourey’s residence to
take pictures and evidence. (See id. at 132). Trooper Rouse interviewed
Mourey, Tricia and Gerald Kreiser, and Appellant. (See id. at 132-33, 142,
145). Because of this investigation, Trooper Rouse filed charges against
Tricia and Gerald Kreiser, and Appellant. (See id. at 149). Trooper Rouse
identified Mourey as the victim after examining his extensive injuries,
observing no injuries on Appellant, minor hand injuries on Gerald, and based
on evidence that Mourey was at home when the assault occurred. (See id.
at 202).
The Commonwealth tried Appellant and the two co-defendants
together on March 24, 2014. (See id. at 1). Mourey testified that, before
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the incident, he had only minor shoulder problems and wrist problems.
(See id. at 102-03). However, Mourey still lifted weights with the pre-
existing injuries. (See id. at 103). Mourey further agreed with counsel on
cross-examination that before the assault he was “pretty much in shape.”
(Id. at 104). Mourey underwent multiple surgeries because of the injuries
he sustained during the assault. (See id. at 83). Additionally, he remained
hospitalized for seven days. (See id. at 68-69). Mourey also testified that
he still has double vision because of the incident. (See id. at 84).
On March 25, 2014, a jury convicted Appellant of one count of
aggravated assault and one count of simple assault. On May 22, 2014, the
court sentenced Appellant to a term of not less than forty-eight months’ nor
more than ninety-six months’ incarceration, plus fees and costs and
restitution of $9,224.71. Appellant timely appealed.1
Appellant raises four questions for our review:
[I.] Whether or not the evidence introduced at trial was
sufficient to prove beyond a reasonable doubt Appellant
had committed the acts of aggravated assault and simple
assault when the victim had answered the door with a
knife and Appellant feared for his safety?
[II.] Was the evidence introduced at trial sufficient to
prove beyond a reasonable doubt that Appellant was guilty
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1
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on July 23, 2014. See
Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on November 26,
2014. See Pa.R.A.P. 1925(a).
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of aggravated assault when victim had testified that he
suffered from a number of pre-existing ailments that were
now argued caused by Appellant’s actions on that evening?
[III.] Was the evidence introduced at trial sufficient to
prove beyond a reasonable doubt that the victim suffered
from serious bodily injury as defined in the aggravated
assault statute?
[IV.] Was trial counsel [ineffective] for representing the
co-defendant in this trial?
(Appellant’s Brief, at 7) (unnecessary capitalization omitted).
Our standard of review for a claim of insufficiency of the evidence is
well settled:
A challenge to the sufficiency of the evidence is a question
of law, subject to plenary review. When reviewing a sufficiency
of the evidence claim, the appellate court must review all of the
evidence and all reasonable inferences drawn therefrom in the
light most favorable to the Commonwealth, as the verdict
winner. Evidence will be deemed to support the verdict when it
establishes each element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
The Commonwealth need not preclude every possibility of
innocence or establish the defendant’s guilt to a mathematical
certainty. Finally, the trier of fact while passing upon the
credibility of witness and the weight of the evidence produced, is
free to believe all, part or none of the evidence.
Commonwealth v. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013), appeal
denied, 79 A.3d 1098 (Pa. 2013) (citation omitted).
Preliminarily, we address Appellant’s failure to include citations to
pertinent legal authorities in his argument. Except for the boilerplate
argument and case law cited for general principles of the sufficiency of the
evidence, Appellant presents no pertinent case law and only offers repeated
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facts from the trial transcript. (See Appellant’s Brief, at 10-13). Appellant
fails to establish pertinent case law or to compare the facts of this case to it.
(See id.). An appellant’s failure to support an argument with pertinent legal
authority in the brief results in waiver. See Pa.R.A.P. 2119(a) and (b)
(providing that appellant must include citations of authorities as deemed
pertinent, must set forth principles for which they are cited); see also
Commonwealth v. Thompson, 939 A.2d 371, 376 (Pa. Super. 2007),
appeal denied, 956 A.2d 434 (Pa. 2008). Accordingly, all of Appellant’s
arguments are waived.
Moreover, Appellant’s claims would not merit relief. In his first
question, Appellant challenges the sufficiency of the evidence to support his
conviction under 18 Pa.C.S.A. § 2702(a)(1), aggravated assault, and 18
Pa.C.S.A. § 2701(a)(1), simple assault. (See Appellant’s Brief, at 7).
Specifically, he alleges that the jury did not properly consider a self-defense
claim when the victim opened the door with a knife and “Appellant feared for
his safety.” (Id.) (most capitalization omitted). We disagree.
We first address Appellant’s challenge to the sufficiency of the
evidence for his conviction of simple assault. Appellant did not raise the
issue of simple assault in his concise statement of errors complained of on
appeal filed on July 23, 2014. (See Rule 1925(b) Statement, 7/23/14, at
unnumbered pages 1-2). Therefore, Appellant has waived this issue. See
Pa.R.A.P. 1925(b)(4)(vii) (providing that issues not included or properly
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raised in the concise statement are waived). Appellant’s challenge to the
sufficiency of the evidence for simple assault is waived.
Next, we review the claim of insufficient evidence for his conviction of
aggravated assault. In the instant case, the jury convicted Appellant after
the Commonwealth presented evidence that he had repeatedly kicked
Mourey and broke a chair over his head, which caused lacerations, broken
bones, and renal failure. (See N.T. Trial, 3/24/14, at 54, 68, 354-55). The
Crimes Code defines the offense of aggravated assault as follows:
(a) Offense defined. —A person is guilty of
aggravated assault if he:
(1) 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).
Here, the evidence shows that Appellant knowingly caused serious
bodily injury to Mourey when he kicked him “as hard as [he] could” and
struck him over the head with a chair. (N.T. Trial, 3/24/14, at 354 ; see id.
at 355). The trial court properly dismissed Appellant’s self-defense claim.
The trial court explained its dismissal of the self-defense argument as
follows:
. . . Despite Appellant’s testimony that he was simply
attempting to disarm the victim, he still continued to punch,
kick[,] and otherwise injure the victim for several minutes when
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evidence indicated the only weapon available to the victim was
dropped at the first encounter. . . .
(Trial Court Opinion, 11/26/14, at unnumbered page 3).
Under our standard of review for sufficiency, the Commonwealth, as
verdict winner, receives the benefit of all reasonable inferences. See
Teems, supra, at 144-45. After considering the testimony of the
witnesses, including Appellant, the jury reasonably inferred that Appellant
was not acting in self-defense when he committed the aggravated assault.
The evidence was sufficient to support the jury conviction of aggravated
assault. Appellant’s first claim is without merit.
Appellant’s second and third questions both claim insufficiency of the
evidence in relation to the injuries sustained by Mourey. (See Appellant’s
Brief, at 7). We address these issues together. Appellant specifically claims
that Mourey did not receive “serious bodily injury” and that some of the
injuries were preexisting. (See id. at 12). We disagree.
As addressed previously, our standard of review for a sufficiency claim
is well settled. See Teems, supra at 144-45. Therefore, we view the
evidence in the light most favorable to the Commonwealth as verdict winner.
To prove aggravated assault, the Commonwealth must present
evidence to prove serious bodily injury occurred. 18 Pa.C.S.A. § 2702(a)(1).
The Crimes Code defines “serious bodily injury” as “[b]odily injury which
creates a substantial risk of death or which causes serious, permanent
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disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S.A. § 2301.
In the instant case, Mourey suffered from broken bones, lacerations to
the head, and acute renal failure that threatened his life. (See N.T. Trial,
3/24/14, at 54, 68). Additionally, Mourey testified that he continued to
experience double vision. (See id. at 84). Applying these facts presented
at trial, the jury found that the injuries sustained met the requirements
under 18 Pa.C.S.A. § 2301. (See Trial Ct. Op., at unnumbered pages 3-4).
Appellant’s argument that Mourey suffered these injuries as pre-
existing conditions is also without support from the record. The record
presents evidence which shows Mourey was “in shape” before the assault.
(See N.T. Trial, 3/24/14, at 104). Mourey only suffered from minor injuries
to his shoulder and wrist before the assault. (See id. at 102-03). Mourey
did not have double vision prior to March 25, 2013. (See id. at 84).
The jury, as fact-finder, made a reasonable inference that the injuries
Mourey sustained from Appellant and Gerald Kreiser created a substantial
risk of death or protracted impairment. Taking all inferences in the light
most favorable to the Commonwealth as verdict winner, we conclude that
the Commonwealth presented sufficient evidence to prove every element of
aggravated assault beyond a reasonable doubt. Appellant’s second and third
claims are without merit.
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Appellant’s fourth question claims that trial counsel was ineffective.
(See Appellant’s Brief, at 7). Specifically, Appellant argues that counsel
lacked a reasonable basis for his actions and inactions respecting co-
defendant at trial. (See id. at 13). However, appellants generally cannot
raise a claim of ineffective assistance of counsel on direct appeal. See
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), reargument
denied, clarified 821 A.2d 1246 (Pa. 2003) (“We now hold that, as a general
rule, a petitioner should wait to raise claims of ineffective assistance of trial
counsel until collateral review.”). Appellant may only raise the issue of
ineffective assistance of counsel on collateral review. See id. Therefore, we
dismiss Appellant’s fourth claim without prejudice to his ability to raise the
issue on collateral review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2015
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