J-S76043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER B. CHESONIS

                            Appellant                  No. 332 EDA 2016


           Appeal from the Judgment of Sentence December 29, 2015
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0002325-2014


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                   FILED NOVEMBER 02, 2016

        Appellant Christopher B. Chesonis appeals from the judgment of

sentence entered by the Honorable Jerome P. Cheslock of the Court of

Common Pleas of Monroe County after Appellant was convicted of simple

assault, disorderly conduct, and harassment.1         Appellant challenges the

sufficiency of the evidence and argues the trial court abused its discretion in

imposing his sentence. After careful review, we affirm.

        The trial court aptly summarized the factual background of the case as

follows:

             On June 14, 2014, Appellant and Liam Gibbons (“Gibbons”)
        were participating in a rugby sevens tournament at East
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2701(a)(1), 5503(a)(4), and 2709(a)(1), respectively.
J-S76043-16


     Stroudsburg University. The first match between Appellant and
     Gibbons’ teams started around 9 a.m. During the first half of
     this match, Appellant was struck in the face during play by an
     unknown member of Gibbons’ team. Appellant thought it was
     Gibbons. Gibbons’ teammate, Colin Westman, apologized to
     Appellant for whatever happened during the play. Appellant did
     not suffer any lasting injury from this incident, however, was
     obviously angered by it. Play continued and during the second
     half of the match, Appellant and Gibbons came together to form
     a ruck – a rugby maneuver meant to defend the ball when a
     player fumbles it. Testimony was unclear as to which team had
     fumbled the ball causing the ruck to form, however, the ball was
     eventually, passed out and play continued on the other side of
     the field. Appellant and Gibbons, however, did not move with
     the ball. Instead, Appellant punched Gibbons in his left eye with
     his left fist and pinned Gibbons to the ground with his right arm.

           As a result of this punch, Gibbons was unable to see
     properly and went immediately to the sidelines where he began
     vomiting. After the match ended, Westman transported Gibbons
     to the Pocono Medical Center Emergency Room where Gibbons
     was treated for the injury to his left eye. Gibbons was diagnosed
     with a blowout fracture of the left orbital floor as well as an
     entrapped inferior rectus muscle (i.e. the muscle underneath the
     eye that controls the eye’s upward movement). Dr. Joseph
     Burke testified that this injury results from a rounded object,
     such as a fist, elbow, or ball, coming into contact with the eye,
     causing the eye to expand and fracture the bone between the
     eye and the nasal cavity. Sometimes, as with Gibbons’ injury,
     the inferior rectus muscle herniates into the nasal cavity and
     requires immediate surgical intervention to release the trapped
     muscle. Otherwise, the patient will be unable to look up with the
     injured eye, resulting in double vision.         If not corrected
     surgically, the fractured bone and trapped muscle will quickly
     develop scar tissue and aggravate the injury. Gibbons remained
     at Pocono Medical Center for over a day in order to receive this
     immediate corrective surgery.

           Gibbons’ injury also required a second surgery a few
     weeks after the incident because his vision and eye movement
     was not improving. During this second surgery, a titanium mesh
     plate was permanently affixed to the orbital floor of Gibbons’ left
     eye. Gibbons continues to suffer from occasional double vision
     and from facial numbness.

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              After the altercation with Gibbons, tournament officials
       red-carded Appellant for foul play, banning Appellant from
       further play in or presence at the tournament.           Later that
       afternoon, Appellant and Gibbons’ teams were set to play one
       another again. Gibbons had already been transported to the
       emergency room and thus was not present. Appellant, however,
       was present and attempted to play in the second half of the
       match. Tournament officials informed Appellant that he was not
       supposed to be at the tournament and was not allowed to play
       for his team. In response, Appellant engaged in “trash talk”
       against Gibbons’ team, stated Gibbons deserved to go to the
       emergency room, and was yelling profanities in front of other
       players, officials, and spectators, including children. Tournament
       officials were diverted from their normal activities in order to
       remove Appellant from the tournament grounds.

Trial Court Opinion (T.C.O.), 3/22/16, at 1-3.

       After Appellant was charged in connection with this incident, he waived

his right to a jury and proceeded to a bench trial. On September 29, 2015,

the trial court convicted him of simple assault, disorderly conduct, and

harassment. On December 29, 2015, the trial court imposed an aggregate

sentence of two to twelve months imprisonment, required Appellant to take

an anger      management class, and            ordered Appellant pay fines and

restitution. Appellant did not file any post-sentence motions, but filed this

timely appeal on January 28, 2016. Appellant was released on bail pending

appeal.    On February 2, 2016, the trial court directed Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Appellant filed his concise statement on February 23, 2016.2
____________________________________________


2
  On March 9, 2016, this Court entered a per curiam order notifying
Appellant of his failure to timely file the docketing statement required by
(Footnote Continued Next Page)


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      Appellant raises two arguments for our review:

      I.     Was the evidence insufficient as a matter of law to
             establish Appellant’s guilt beyond a reasonable doubt with
             respect to intent?

      II.    Did the lower court err when it sentenced [Appellant] to
             incarceration in the aggravated range having failed to
             consider the factors under the Sentencing Code weighing
             heavily in favor of probation?

                       _______________________
(Footnote Continued)

Pa.R.A.P. 3517. The Court directed Appellant to file the docketing statement
by March 21, 2016 and notified him that his failure to meet that deadline
would result in the dismissal of his appeal. On March 22, 2016, Appellant’s
counsel filed the docketing statement but did not serve the Commonwealth.
On April 1, 2016, the Commonwealth filed its first Application to Quash the
Appeal, which this Court denied.

      This Court directed Appellant’s counsel, Lynn Erickson, Esq., to file her
appellate brief and reproduced record on or before May 9, 2016. After
Appellant requested and was granted two separate extensions of time, this
Court filed an order to allow Atty. Erickson to file her brief on or before June
30, 2016. Atty. Erickson seemingly ignored this Court’s mandate, filing her
reproduced record on July 19, 2016 and the appellate brief on July 29,
2016.2 On August 2, 2016, the Commonwealth filed a second Application to
Quash the Appeal for Appellant’s failure to file a timely brief and reproduced
record. In a per curiam order, this Court denied the Commonwealth’s
second Application to Quash the appeal.

      On appeal, the Commonwealth again requests this Court to dismiss
this appeal without review on the merits.          The Commonwealth cites
Pa.R.A.P. 2188, which states “[i]f an appellant fails to file his designation of
reproduced record, brief or any required reproduced record within the time
prescribed by these rules, or within the time as extended, an appellee may
move for dismissal of the matter.” This Court has held that dismissal under
Rule 2188 is discretionary. See Commonwealth v. Sohnleitner, 884 A.2d
307, 313 (Pa.Super. 2005). As Atty. Erickson’s untimely filings do not
impede our review of this appeal, we proceed to review the merits of
Appellant’s claims.




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Appellant’s Brief, at 5.

       When reviewing a challenge to the sufficiency of the evidence, our

standard of review is as follows:

             We must determine whether the evidence admitted at trial,
       and all reasonable inferences drawn therefrom, when viewed in a
       light most favorable to the Commonwealth as verdict winner,
       support the conviction beyond a reasonable doubt. Where there
       is sufficient evidence to enable the trier of fact to find every
       element of the crime has been established beyond a reasonable
       doubt, the sufficiency of the evidence claim must fail.

             The evidence established at trial need not preclude every
       possibility of innocence and the fact-finder is free to believe all,
       part, or none of the evidence presented. It is not within the
       province of this Court to re-weigh the evidence and substitute
       our judgment for that of the fact-finder. The Commonwealth's
       burden may be met by wholly circumstantial evidence and any
       doubt about the defendant's guilt is to be resolved by the fact[-
       ]finder unless the evidence is so weak and inconclusive that, as
       a matter of law, no probability of fact can be drawn from the
       combined circumstances.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

       Specifically, Appellant claims that the Commonwealth failed to prove

he “acted with wrongful intent” with respect to his simple assault and

harassment convictions3 as “[r]ugby is a rough and tumble contact support

and what transpired between [Appellant] and [the] victim was fleeting and

____________________________________________


3
  Appellant does not argue that the Commonwealth failed to prove the mens
rea for his disorderly conduct charge for his behavior in using excessive
profanity in front of a crowd of spectators, which included children, which
caused him to be escorted from the match by tournament officials.



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was a reflex, part of the roughness of the game.” Appellant’s Brief, at 10-

11.   In addition, Appellant claims that the accounts of the prosecution’s

witnesses were too conflicting to reasonably support Appellant’s convictions.4

       To sustain a conviction of simple assault, the Commonwealth must

prove the defendant “attempt[ed] to cause or intentionally, knowingly or

recklessly causes bodily injury to another.” 18 Pa.C.S. § 2701(a)(1).      To

sustain a conviction of harassment, the Commonwealth must prove the

defendant struck, shoved, kicked, or otherwise objected another to physical


____________________________________________


4
   Appellant seems to formulate his sufficiency argument based on the
principle set forth in Commonwealth v. Karkaria, 533 Pa. 412, 419, 625
A.2d 1167, 1170 (1993), in which the Supreme Court held that whenever
“evidence offered to support a verdict of guilt is so unreliable and/or
contradictory as to make any verdict based thereon pure conjecture, a jury
cannot be permitted to return such a finding.” The Supreme Court has
reiterated that it “considers questions regarding the reliability of the
evidence received at trial to be within the province of the finder-of-fact to
resolve, and our Court will not, on sufficiency review, disturb the finder-of-
fact's resolution except in those exceptional instances, as discussed
previously, where the evidence is so patently unreliable that the jury was
forced to engage in surmise and conjecture in arriving at a verdict based
upon that evidence.” Commonwealth v. Brown, 617 Pa. 107, 150, 52
A.3d 1139, 1165 (2012) (citing Karkaria, 533 Pa. at 419, 625 A.2d at
1170). In Brown, this Court characterized a similar claim as a challenge to
the sufficiency of the evidence, recognizing that “in those extreme situations
where witness testimony is so inherently unreliable and contradictory that it
makes the jury's choice to believe that evidence an exercise of pure
conjecture, any conviction based on that evidence may be reversed on the
grounds of evidentiary insufficiency, since no reasonable jury could rely on
such evidence to find all of the essential elements of the crime proven
beyond a reasonable doubt.” Brown, supra at 1156 n. 18; but see id. at
1190 n. 1 (Castille, C.J. concurring and dissenting) (opining that the issue
was a weight of the evidence claim).



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contact with the intent to harass, annoy, or alarm that person. 18 Pa.C.S. §

2709.     We find Appellant’s claim to be meritless and agree with the trial

court’s finding that the Commonwealth did not present inconsistent

testimony. As noted by the trial court:

               Castner testified that he viewed an altercation from the
        sidelines where Appellant punched Gibbons to the ground,
        pinned him, and attempted to throw additional punches.
        Westman testified to seeing Appellant on top of Gibbons with his
        left arm up, as if he had just thrown a punch. Gibbons testified
        that Appellant pinned him to the ground and punched him in the
        left eye with his left fist. Castner’s and Westman’s versions are
        not mutually exclusive as Westman testified that he did not see
        the entire altercation because he momentarily looked away.
        While Gibbons’ recall of the timeline might be slightly
        inconsistent with that of Castner, such discrepancy can easily be
        explained by Castner’s testimony that Gibbons was confused
        when he got up from being punched and pinned by Appellant.

T.C.O. at 5 (internal citations omitted).

        Moreover, Appellant admits that he intentionally punched Gibbons in

the eye, causing a fracture of a bone in Gibbons’ face. Although Appellant

suggests he punched the victim in self-defense when he claimed that his

intention was to get away from Gibbons, he does not show that the

Commonwealth       failed   to   present   sufficient   evidence   to   support   his

convictions, but asks us to reverse the trial court’s credibility determinations,

which we defer to as an appellate court. Commonwealth v. Moser, 921

A.2d 526, 530 (Pa.Super. 2007) (emphasizing that “[i]t is axiomatic that

appellate courts must defer to the credibility determinations of the trial court

as fact finder, as the trial judge observes the witnesses' demeanor first-



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hand”) (citation omitted). As a result, we find the trial court did not err in

finding   the   Commonwealth    presented   sufficient   evidence   to   sustain

Appellant’s convictions.

      Second, Appellant claims that the trial court abused its discretion in

imposing his sentence when it ignored mitigating factors.      “A challenge to

the discretionary aspects of sentencing does not entitle an appellant to

review as of right.” Commonwealth v. Bynum-Hamilton, 135 A.3d 179,

184 (Pa.Super. 2016). In order to invoke this Court’s jurisdiction to address

such a challenge, the appellant must satisfy the following four-part test: the

appellant must (1) file a timely notice of appeal pursuant to Pa.R.A.P. 902,

903; (2) preserve the issues at sentencing or in a timely post-sentence

motion pursuant to Pa.R.Crim.P. 720; (3) ensure that the appellant’s brief

does not have a fatal defect as set forth in Pa.R.A.P. 2119(f); and (4) set

forth a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code under 42 Pa.C.S. § 9781(b). Id.

      We initially note that Appellant filed a timely appeal, but did raise his

challenge to the discretionary aspects of his sentence in the trial court.

While normally we would find this issue waived by Appellant’s failure to

preserve the issue in the lower court, we will overlook this omission as we

observe that the trial court failed to advise Appellant of his right to file a

post-sentence motion at sentencing.     See Commonwealth v. Malovich,

903 A.2d 1247, 1252 (Pa.Super. 2006) (holding that failure to file post-trial




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motions did not waive appellate issues where trial court did not advise

appellant of the need to preserve issues by motion).

      Appellant has included in his appellate brief a separate Rule 2119(f)

statement in his appellate brief. We must now determine whether Appellant

has presented a substantial question that his sentence is not appropriate

under the Sentencing Code.

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis. A substantial
      question exists only when the appellant advances a colorable
      argument that the sentencing judge's actions were either: (1)
      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process.

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.Super. 2013) (citation

omitted).

      Specifically, Appellant focuses his argument on his assertion that the

trial court failed to consider mitigating factors that, in his opinion, weighed

heavily in favor of a sentence of probation, and not incarceration. However,

“[t]his Court has held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.” Disalvo, 70 A.3d at 903. As Appellant’s challenge does not

constitute a substantial question, we need not review this claim any further.

      For the foregoing reasons, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2016




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