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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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