Com. v. Greer, C. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHRISTOPHER GLEN GREER, : No. 606 WDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, March 22, 2017,
in the Court of Common Pleas of Fayette County
Criminal Division at No. CP-26-CR-0001322-2016
BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 25, 2017
Christopher Glen Greer appeals from the March 22, 2017 judgment of
sentence entered in the Court of Common Pleas of Fayette County after a
jury convicted him of aggravated assault by vehicle, aggravated assault,
criminal mischief, simple assault, recklessly endangering another person,
and fleeing or attempting to elude an officer.1 Appellant was also convicted
by the trial court of four summary offenses, including driving while operating
privilege is suspended or revoked.2 The trial court sentenced appellant to
30 days to 6 months of imprisonment on the driving while operating
1 75 Pa.C.S.A. § 3732.1(a), 18 Pa.C.S.A. § 2702(a)(2), 18 Pa.C.S.A.
§ 3304(a)(5), 18 Pa.C.S.A. § 2701(a)(1), 18 Pa.C.S.A. § 2705, and
75 Pa.C.S.A. § 3733(a), respectively.
2 75 Pa.C.S.A. § 1543(a).
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privilege is suspended or revoked conviction and imposed a consecutive
sentence of 6 to 20 years of imprisonment on the aggravated assault
conviction. The trial court imposed no further penalty on the remaining
convictions. We affirm.
The trial court set forth the following factual history:
On April 21, 2016, Corporal Delbert DeWitt of
the Uniontown City Police Department (UPD) was on
patrol in the early morning hours in Uniontown,
Fayette County, Pennsylvania. During his patrol,
Corporal DeWitt observed a dark colored Chevrolet
pick-up truck on Berkeley Street cross the double
yellow line and swerve back into the lane of travel on
multiple occasions.[Footnote 3] Corporal DeWitt
activated the cruiser’s overhead lights with the intent
to effectuate a traffic stop. The operator of the
truck, later identified as Appellant, slowed down and
turned on the right turn signal. Nevertheless, when
Corporal DeWitt turned on the cruiser’s siren,
Appellant turned the signal off and accelerated
southbound on Derrick Avenue.
[Footnote 3] He called the registration on
the vehicle into the Fayette County 9-1-1
Center to obtain the vehicle’s
information. The 9-1-1 Center
responded that the information provided
to them was registered to a Subaru not a
Chevrolet.
Corporal DeWitt followed Appellant and called
out over the radio that he was in pursuit of a truck
occupied by one person who failed to yield to him.
Appellant slowed down as he approached the
Uniontown Country Club, made an abrupt left turn
over the double yellow lines and drove onto the
country club’s golf course. With the assistance of
Officer Kurt Defoor and Tyler Garlick, an intern with
the UPD, Corporal DeWitt proceeded very slowly to
Cinder Road, the suspected area of Appellant’s
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location. As Corporal DeWitt continued on
Cinder Road, he looked to his right and saw the truck
accelerate towards him. Appellant struck Corporal
DeWitt’s vehicle in the front passenger area.
Trooper Todd Stevenson, a collision analyst and
reconstruction specialist with the Pennsylvania State
Police, testified in his expert opinion that there was
no evasive steering or braking to avoid the collision.
Corporal DeWitt testified that he smashed his
head off the long gun rack in the police cruiser after
the impact forced him out of the driver’s seat and up
over the center console where he ended up in the
passenger side with his lower body stretched on the
driver’s side of the vehicle. Corporal DeWitt exited
his police cruiser and approached the truck with his
firearm drawn. He opened the driver’s side door of
the truck and observed Appellant lying across the
bench seat with his head towards the passenger side
of the truck.[Footnote 4] Corporal DeWitt pulled
Appellant out of the truck and Mr. Garlick handcuffed
him.
[Footnote 4] Evidence was presented at
trial that Appellant has a prosthetic leg
and that a black walking cane was taped
to the clutch of the truck.
After Appellant was handcuffed, Corporal
DeWitt testified that he fell to the ground due to an
extreme amount of pain. He radioed for two
ambulances, one for Appellant and one for himself.
As a result of the crash, Corporal DeWitt was
diagnosed with a closed head injury and a whiplash
injury of the neck and received chiropractic
treatment for muscle soreness.
Appellant testified that he purchased the truck
prior to April 21, 2016 from Derrick Hudock. He
testified that around 11:45 p.m. on April 20, 2016,
he was waiting in a private driveway on Cinder Road
for the truck to be delivered to him by a friend,
Michael Metts.[Footnote 5] Once the truck was
delivered, he taped his cane to the clutch and began
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to drive the truck out of the private driveway.
Appellant testified that he did hit the police cruiser
but only because the cruiser’s headlights were not on
and when he saw the cruiser it was too late to avoid
impact. He testified that he was not involved in the
police pursuit.
[Footnote 5] The Commonwealth called
Michael Metts on rebuttal. He testified
that he knew Appellant and that he did
not drive the truck on April 21, 2016
because he was incarcerated at
SCI-Fayette from April 4, 2016 to
December 28, 2016.
Trial court opinion, 5/4/17 at 2-4.
The record reflects that following his convictions, the trial court
imposed judgment of sentence on March 22, 2017. On April 6, 2017,
appellant then filed an untimely post-sentence motion for modification of
sentence. The trial court denied the untimely motion on April 11, 2017. On
April 20, 2017, appellant filed a notice of appeal to this court and
simultaneously filed what he termed a “Concise Issue.” (Appellant’s “concise
issue,” 4/20/17; docket # 33.) The trial court filed an opinion on May 4,
2017.
Appellant raises the following issues for our review:
[1.] Was the evidence insufficient to sustain
conviction based upon the testimony and
evidence presented at trial by the
Commonwealth evidence [sic] was insufficient
to show that [appellant] committed the crimes
beyond a reasonable [sic][?]
[2.] Was the sentence excessive[?]
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Appellant’s brief at 8 (capitalization omitted).
Appellant first challenges the sufficiency of the evidence to sustain his
convictions. It is well settled that when challenging the sufficiency of the
evidence on appeal, that in order to preserve that issue for appeal, an
appellant’s Rule 1925(b) statement must specify the element or elements
upon which the evidence was insufficient. Commonwealth v. Gibbs, 981
A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010)
(citation and internal quotation marks omitted).
Here, we will give appellant the benefit of the doubt that his
“concise issue” constitutes a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). In that statement, appellant frames
his sufficiency challenge as follows:
Was the evidence insufficient to sustain conviction
based upon the testimony and evidence presented at
trial by the Commonwealth and evidence was
insufficient to show that [appellant] committed the
crimes beyond a reasonable doubt[?]
Appellant’s “concise issue,” 4/20/17 (capitalization omitted).
The trial court deemed this issue waived because appellant’s
“concise issue” failed to specify the element or elements of the offense or
offenses that appellant contends lack evidentiary support. (Trial court
opinion, 5/4/17 at 4-5.) As this court has stated, “[i]n order to preserve a
challenge to the sufficiency of the evidence on appeal, an appellant’s
Rule 1925(b) statement must state with specificity the element or elements
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upon which the appellant alleges that the evidence was insufficient.”
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super. 2013), citing
Gibbs, 981 A.2d at 281. “Such specificity is of particular importance in cases
where, as here, the appellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must prove beyond a
reasonable doubt.” Id. Therefore, because appellant was convicted of ten
separate charges and claims that the evidence was insufficient to sustain his
convictions, but fails to specify which element or elements of which charge
or charges he challenges, appellant waives his sufficiency claim on appeal.
Moreover, we are compelled to note that the argument on appellant’s
sufficiency challenge in his counseled brief falls far short of a meaningful
legal argument capable of appellate review. For example, appellant argues
that:
[his] conviction was based on mere speculation and
not on the fact that the Commonwealth proved his
guilt beyond a reasonable doubt. It is Appellant’s
contention that the verdicts were against the
evidence since the testimony concerning the crimes
charged could not incriminate Appellant. The
Commonwealth failed to meet its burden of proof
beyond a reasonable doubt as to the charges.
Appellant’s brief at 21-22. Therefore, even if appellant did not waive his
sufficiency claim for failure to preserve it in his “concise issue” because he
did not state with specificity the element or elements of the crime or crimes
he challenges, he would waive his sufficiency claim for failure to develop a
meaningful legal argument on the issue. See Commonwealth v. Johnson,
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985 A.2d 915, 924 (Pa. 2009) (citations omitted) (reiterating that where an
appellate brief fails, among other things, to develop the issue in any
meaningful fashion capable of review, a defendant waives that claim).
Appellant next challenges the discretionary aspects of his sentence.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted; brackets in original).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has
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filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at
sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial
question that the sentence appealed
from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
Moury, 992 A.2d at 170 (citation omitted; brackets in original).
Here, although appellant filed a timely notice of appeal, he failed to
properly preserve his sentencing challenge because he did not challenge his
sentence at sentencing, and he failed to file a timely motion to reconsider
and modify sentence within 10 days of imposition of sentence. See
Pa.R.Crim.P. 720(A)(1) (requiring that “a written post-sentence motion shall
be filed no later than 10 days after imposition of sentence”). The trial court
imposed sentence on March 22, 2017, and appellant filed his post-sentence
motion for modification of sentence on April 6, 2017, which was 15 days
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following imposition of sentence. Therefore, appellant has failed to invoke
our jurisdiction.3
Judgment of sentence affirmed.
3 We also note that appellant failed to include in his brief a Rule 2119(f)
statement.
Finally, we note that even if appellant invoked our jurisdiction, it is
obvious that appellant would have failed to raise a substantial question
concerning the appropriateness of his sentence as demonstrated by the
four-sentence argument he advanced in his brief, as follows:
In the instant case, the trial court abused its
discretion and erred in sentencing Appellant to such
a lengthy period of incarceration. Upon review of
Appellant’s prior record and the testimony adduced
at trial, the full sentence would be excessive. In
addition, Appellant was sentenced was [sic]
excessive. As such, the Appellant contends his
sentence was unreasonable; and, therefore, requests
this Honorable Court order Appellant’s sentence
vacated and remanded.
Appellant’s brief at 25-26. That argument entirely fails to demonstrate how
the sentence is inconsistent with a specific provision of the sentencing code
or in what way it is contrary to the fundamental norms that underlie
appellant’s sentencing process.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2017
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