J-S41042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


*
    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
____________________________________________



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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