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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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