Com. v. Davis, D.

Opinion

J-S44008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEMETRIUS MARDRICE DAVIS, : : Appellant : 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 ____________________________________________

118 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. J-S44008-18

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 18½ 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.

____________________________________________

2The 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[.]

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

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