J-S44008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DEMETRIUS MARDRICE DAVIS, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 155 EDA 2018

Appeal from the Judgment of Sentence July 31, 2017

In the Court of Common Pleas of Northampton County Criminal Division 

at No(s): CP-48-CR-0003226-2016

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 15, 2018

Demetrius Mardrice Davis appeals from the judgment of sentence, 

entered in the Court of Common Pleas of Northampton County, after a jury 

convicted him of criminal attempt (murder), aggravated assault, robbery, 

theft by unlawful taking, and access device fraud.1 After careful review, we 

affirm.

On July 6, 2016, Davis returned to his residence, which he shared with 

his girlfriend, Jennifer Baker, where he discovered Baker and another 

individual using drugs in the kitchen. Davis became enraged that drug use 

was occurring while Baker’s three children were home and he left the 

residence. After approximately 10:00 p.m., Davis returned and asked Baker 

to go up to their shared bedroom with him. Upon entering the bedroom, Davis 

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1 18 Pa.C.S.A. §§ 901, 2502; 18 Pa.C.S.A. § 2702; 18 Pa.C.S.A. § 3702; 18 

Pa.C.S.A. § 3902; and 18 Pa.C.S.A. § 4106, respectively.
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immediately shut the door, punched Baker in the face multiple times with a 

closed fist and accused her of infidelity. Baker denied Davis’ accusations, but 

he continued to punch, kick and choke her. Davis’ beatings were unrelenting, 

and Baker suffered multiple broken bones and lost two of her front teeth. 

Baker recalled seeing her blood on the bed and walls and losing control of her 

bodily functions twice due to the beating. In addition to punching, kicking and 

choking Baker, Davis also repeatedly bit her. 

Davis eventually stopped beating Baker, but threatened to kill her if she 

attempted to leave the bedroom. At some point, Davis left Baker alone in the 

bedroom for a prolonged period. While alone, Baker attempted to escape to 

a neighbor’s home, but Davis followed her out the front door, engaged her in 

a chokehold and dragged her back to the bedroom. Upon returning to the 

bedroom with Baker, Davis retrieved a silver steak knife from the top drawer 

of his dresser and threatened to stab her. Moments later, Davis took the knife 

and stabbed Baker above her left hip and again below her left eye. Baker 

required stitches, staples and surgery to remove part of her intestines to 

repair her stab wounds.

After Davis stabbed Baker, he forced her to remove her bank debit card 

and child support card from her wallet and write down the correct personal 

identification numbers (“PIN”) for those cards. Baker threatened to kill her if 

she did not provide the correct PINs. Baker later discovered Davis withdrew 

$1070.00 from accounts connected to the two cards.
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On June 8, 2017, a jury convicted Davis of the previously mentioned 

charges. On July 31, 2017, the trial court sentenced Davis to 15 to 25 years’ 

incarceration for attempted murder, a consecutive terms of 42 to 96 months’

incarceration for aggravated assault and 6 to 24 months’ incarceration for 

robbery,2 and a concurrent term 6 to 24 months’ incarceration for access 

device fraud. Davis’ aggregate term of incarceration is 181⁄2 to 43 years.

On August 8, 2017, Davis filed a post-sentence motion for 

reconsideration of sentence, which the trial court denied on December 4, 

2017. On December 29, 2017, Davis filed a timely notice of appeal. Both 

Davis and the trial court have complied with Pa.R.A.P. 1925. On appeal, Davis 

raises the following issues for our review:

1. Whether the verdicts of guilty to the offenses contained in the 

[c]riminal [i]nformation were against the weight of the 

evidence?

2. Whether insufficient evidence was introduced at trial to support 

the verdicts of guilty to the offenses contained in the criminal 

information?

3. Whether the [trial court’s] sentences were excessive and 

committed reversible error by failing to set forth sufficient 

reasons upon the record for imposing consecutive sentences?

Brief of Appellant, at 3.

In Davis’ first two claims on appeal, he challenges the weight and 

sufficiency of the Commonwealth’s evidence. 

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2 The trial court found that the charge of theft by unlawful taking merged with 

Davis’ robbery charge for purposes of sentencing. 
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A claim that a verdict is against the weight of the evidence must be 

raised in a motion for new trial either (1) orally on the record, before 

sentencing; (2) in a written pre-sentence motion; or (3) in a post-sentence 

motion. Pa.R.Crim.P. 607(A). 

Instantly, Davis has not raised a claim that the verdict is against the 

weight of the evidence orally on the record, in a pre-sentence motion, or in a 

post-sentence motion. Thus, Davis has waived this claim. See Pa.R.A.P. 

302(a) (“Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.”). See also Pa.R.Crim.P. 607 – Comment.

Next, Davis argues that the trial court erred in denying his post-trial 

motion for acquittal. Davis has waived this claim as well. 

“A motion for judgment of acquittal challenges the sufficiency of the 

evidence to sustain a conviction on a particular charge[.]” Commonwealth 

v. Hutchison, 947 A.2d 800, 805 (Pa. Super. 2008) (quotation and citation 

omitted). In order to preserve a challenge to the sufficiency of the evidence 

on appeal, an appellant’s statement of errors complained of on appeal must 

state with specificity the element or elements upon which the appellant alleges 

that the evidence was insufficient. Commonwealth v. Garland, 63 A.3d 

339, 344 (Pa. Super. 2013). “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. 
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In Davis’ Rule 1925(b) statement, he states only that the trial court 

“committed reversible error by failing to grant [his] motion for [j]udgment of 

[a]cquittal at the close of the Commonwealth’s case in chief[.]” Davis Rule 

1925(b) Statement, 1/17/18. However, as the trial court acknowledges, and 

our review confirms, the record is devoid of Davis making a motion for 

judgment of acquittal or a similar motion. Accordingly, the trial court did not 

address his sufficiency claim. Trial Court Opinion, 2/26/18, at 3. Moreover, 

Davis does not specify in his brief what elements of aggravated assault and 

attempted homicide he challenges. Garland, supra. Rather, he baldly 

asserts that evidence that “the majority of [the] DNA contained on the handle 

of the [silver steak] knife was that of Bakers,” is completely exculpatory. 

Instantly, we find Davis’ Rule 1925(b) statement and appellate brief fatally 

deficient with regard to his sufficiency of the evidence claim. Although the 

Commonwealth has not objected to Davis’ numerous procedural deficiencies, 

we find Davis has waived this claim. See Commonwealth v. Roche, 153 

A.3d 1063 (Pa. Super. 2017) (defendant waived issue of sufficiency of 

evidence by failing to properly assert issue in Rule 1925(b) statement, even 

though Commonwealth failed to object to defective statement, where 

statement did not specify element or elements upon which evidence was 

insufficient). 

Davis next claims that his sentences are excessive and that the trial 

court committed reversible error by failing to state on the record its reason(s) 

for imposing consecutive sentences. Generally, a claim that one’s sentence is 
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excessive constitutes a challenge to the discretionary aspects of sentence.

3

 

Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (challenge 

to alleged excessive sentence is challenge to discretionary aspects of 

sentence). However, in his brief, Davis actually argues that the crime of 

aggravated assault is a lesser-included offense of attempted homicide, and 

thus, the crimes should have merged for purposes of sentencing. 

“A claim that crimes should have merged for sentencing purposes 

challenges the legality of a sentence, which cannot be waived.” 

Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (citation 

omitted). As such, our standard of review is de novo and the scope of our 

review is plenary. Commonwealth v. Collins, 764 A.2d 1056, 1057 n.1 (Pa. 

2001). 

“No crimes shall merge for sentencing purposes unless the crimes arise 

from a single criminal act and all of the statutory elements of one offense are 

included in the statutory elements of the other offense.” 42 Pa.C.S.A. § 9765. 

The threshold question is whether [a]ppellant committed one 

solitary criminal act. The answer to this question does not turn 

on whether there was a break in the chain of criminal activity. 

Rather, the answer turns on whether the actor commits multiple 

criminal acts beyond that which is necessary to establish the bare 

elements of the additional crime[.] If so, then the defendant has 

committed more than one criminal act. This focus is designed to 

prevent defendants from receiving a volume discount on crime[.]

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3 The trial court, in its Rule 1925(a) opinion, treated Davis’ claim as a 

challenge to the discretionary aspects of sentence.
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Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa. Super. 2014) (quotations

and citation omitted). If a defendant committed more than one criminal act, 

the offenses will not merge for sentencing purposes. Commonwealth v. 

Robinson, 931 A.2d 15, 24-25 (Pa. Super. 2007) (en banc). Furthermore, 

where “the offenses stem from two different criminal acts, merger analysis is 

not required.” Commonwealth v. Williams, 958 A.2d 522, 527 (Pa. Super. 

2008) (citation omitted).

Here, Davis punched, strangled, bit and kicked Baker, causing her to 

suffer broken bones and missing teeth; these acts constituted aggravated 

assault. See 18 Pa.C.S.A. § 2702. At some point, Davis relented and Baker 

attempted to escape to a neighbor’s home to seek help. Davis foiled Baker’s 

escape effort and physically forced her to return to their apartment bedroom. 

Davis then retrieved a silver steak knife from atop a bedroom dresser and 

stabbed Baker above her left hip and eye. Davis’ actions constituted a 

substantial step toward the intentional killing of Baker. See Commonwealth 

v. Wesley, 860 A2d 585, 593 (Pa. Super. 2004) (person is guilty of attempted 

murder if they take substantial step toward intentional killing). At sentencing, 

the trial court stated as follows: “The reason the sentence is consecutive is 

because the jury made a specific finding that there were two separate 

incidents giving rise to two separate charges, that differentiates that [the] 

aggravated assault from the attempted homicide. I think that warrants 

recognition and I have sentenced consecutively for that reason.” N.T. 

Sentencing, 7/31/17, at 21 (emphasis added). Accordingly, a merger analysis 
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is not required; the jury found Davis committed two separate offenses. 

Williams, supra. Therefore, we do not find the trial court erred in sentencing 

Davis to consecutive terms of incarceration for criminal attempt (murder) and 

aggravated assault.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/15/18