Com. v. Pooler, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD JOSEPH POOLER, JR.,
Appellant No. 2657 EDA 2017
Appeal from the Judgment of Sentence Entered March 31, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000762-2016
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 06, 2018
Appellant, Ronald Joseph Pooler, Jr., appeals from the judgment of
sentence of an aggregate term of 75 to 150 months’ incarceration, imposed
after he was convicted of one count each of aggravated assault by vehicle
(75 Pa.C.S. § 3632.1(a)) and accidents involving death or personal injury
while not properly licensed (75 Pa.C.S. § 3742.1), as well as three counts of
endangering the welfare of children (18 Pa.C.S. § 4304(a)). Appellant solely
challenges the discretionary aspects of his sentence. We affirm.
Appellant pled guilty to the above-stated offenses on November 10,
2016. On March 31, 2017, the court imposed Appellant’s sentences for the
offenses in this case. Appellant filed a timely post-sentence motion to
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* Former Justice specially assigned to the Superior Court.
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modify his sentence, which was denied. He then filed a timely notice of
appeal, as well as a timely Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Herein, Appellant presents one issue for our
review: “Did the trial court abuse its discretion [by] imposing an aggregate
sentence of [75] months to [150] months for the two felonies of aggravated
assault by vehicle and accident involving death or injury while not properly
licensed[,] and three misdemeanors of endangering the welfare of children?”
Appellant’s Brief at 5 (unnecessary capitalization omitted).
Appellant’s single issue challenges the discretionary aspects of his
sentence.
Accordingly, his right to appellate review is not absolute. See
Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa. Super.
2005); Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
Super. 2007) (“A challenge to the discretionary aspects of a
sentence must be considered a petition for permission to
appeal[.]”). The Rules of Appellate Procedure mandate that to
obtain review of such claims, the appellant must include in his
brief a Concise Statement of Reasons Relied Upon for Allowance
of Appeal. See id.; see also Pa.R.A.P. 2119(f). The defendant’s
Concise Statement must, in turn, raise a substantial question as
to whether the trial judge, in imposing sentence, violated a
specific provision of the Sentencing Code or contravened a
“fundamental norm” of the sentencing process. See Fiascki,
886 A.2d at 263; Commonwealth v. Ousley, 392 Pa. Super.
549, 573 A.2d 599, 601 (1990) (citations and internal quotation
marks omitted) (“[A]ppeals from the discretionary aspects of
sentence are not to be granted as a matter of course, but ...
only in exceptional circumstances where it can be shown in the
2119(f) statement that despite the multitude of factors
impinging on the sentencing decisions, the sentence imposed
contravenes the sentencing code.”)[.] The determination of
whether a particular issue poses a substantial question is to be
made on a case-by-case basis. See Fiascki, 886 A.2d at 263. If
the Rule 2119(f) statement is absent or if the statement
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provided fails to demonstrate a substantial question, this Court
may refuse to accept the appeal. See id.Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011).
Here, Appellant has included a Rule 2119(f) statement in his brief.
Therein, he maintains that the sentencing court failed to conform to 42
Pa.C.S. § 9721(b), by not taking into account Appellant’s rehabilitative
needs and other mitigating factors when imposing consecutive, rather than
concurrent, sentences. See Appellant’s Brief at 14; 42 Pa.C.S. § 9721(b).
Appellant avers that the court’s decision to impose consecutive sentences
resulted in “an aggregate sentence that was unduly harsh and excessive in
light of the nature of the offenses.” Id.
Based on the argument presented in Appellant’s Rule 2119(f)
statement, and the case law on which he relies, we conclude that he has
presented a substantial question for our review. See Commonwealth v.
Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (concluding that a substantial
question may exist where the appellant challenges the imposition of
consecutive sentences as unduly excessive, in conjunction with a claim that
the court failed to consider his rehabilitative needs and mitigating factors).
Accordingly, we will review the merits of his claim, keeping in mind that,
[t]he sentencing court is given broad discretion in determining
whether a sentence is manifestly excessive because the
sentencing judge is in the “best position to measure factors such
as the nature of the crime, the defendant’s character and the
defendant's display of remorse, defiance, or indifference.”
Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa. Super.
1998) (quoting Commonwealth v. Ellis, 700 A.2d 948, 958
(Pa. Super. 1997)). In order to find that a trial court imposed an
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“unreasonable” sentence, we must determine that the
sentencing court imposed the sentence irrationally and that the
court was “not guided by sound judgment.” Commonwealth v.
Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007).
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012).
Appellant begins by arguing that “[w]hen imposing the sentence on
aggravated assault by vehicle, the court focuse[d] almost exclusively on a
singular factor for its sentence: the victim, [Appellant’s minor child,] A.P.”
Appellant’s Brief at 21 (unnecessary capitalization omitted). He notes that,
during the sentencing hearing, the court emphasized the severity of A.P.’s
injuries and the life-altering effect that Appellant’s actions had on her. Id.(citation to record omitted). Appellant asserts, however, that “[t]he
seriousness of the crime … is already taken into account by the Pennsylvania
Sentencing Commission when it designates a crime with an offense gravity
score.” Id. Appellant further avers that he suffered from addiction and that
the sentencing court failed to consider his rehabilitative needs when
imposing his sentence. Id.Next, Appellant argues that the court’s imposition of a sentence for the
offense of accident involving injury or death while not properly licensed, to
run consecutive to the previous sentence, results in an aggregate sentence
which is “disproportionate to the nature and circumstances of the offenses[,]
because they are both based upon the same singular act and victim.” Id. at
22.
Finally, regarding the three counts of endangering the welfare of
children, Appellant alleges that the court again failed to consider his
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rehabilitative needs or other mitigating factors presented in the pre-sentence
investigation (PSI) report or in his memorandum in aid of sentencing. Id.
He also contends that the court failed to consider the gravity of the offense
by imposing all three sentences consecutively. Appellant states: “While the
three children were exposed to injury, the actual result was that they
suffered no actual injuries. As a result of the charges running consecutively,
the aggregate sentence becomes disproportionate to the nature and
circumstances of the offenses.” Id. at 23-24.
Having carefully reviewed the record of Appellant’s sentencing
proceeding, we ascertain no abuse of discretion by the court. Initially, we
stress that the court had the benefit of a PSI and reviewed that report prior
to the sentencing proceeding. N.T. Sentencing, 3/31/17, at 50.
Additionally, the trial court indicated that it took into consideration a number
of character letters on Appellant’s behalf, as well as statements made in
court by Appellant, his father, Ronald Pooler, Sr., and his uncle, Claude
Turner. Id. The court also listened to defense counsel discuss many of the
mitigating factors Appellant cites, supra. See id. at 29-34 (counsel’s
emphasizing Appellant’s long-term drug addiction and mental health issues,
his completion of a drug and alcohol rehabilitation program while
incarcerated, his remorse for the pain and suffering his actions have caused
his daughter, and Appellant’s recent involvement with ministry).
In its opinion, the sentencing court emphasizes that while it considered
all of the foregoing factors when determining Appellant’s sentence, it found
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“the ‘severity of [A.P.’s] injuries alone and the life altering transformation
that took place for her that day’ outweighed any mitigating circumstances
and any prior history or circumstances specific to [Appellant].” Trial Court
Opinion (TCO), 9/20/17, at 5 (unpaginated) (quoting N.T. Sentencing at 54).
Additionally, the court notes that it set forth the factual justification for the
sentence imposed, in detail, on the record at the sentencing hearing. Id. at
2 (unpaginated) (citing N.T. Sentencing at 50-54). These facts included
Appellant’s egregious driving conduct that led to the incident, namely that
Appellant was weaving through traffic on a congested highway at
approximately 72 to 77 miles per hour. Id. However, the court opines,
several specific additional circumstances which entered into the
court’s sentencing determination were not expressly referenced
on the record at that time, but will be mentioned now. The
accident which precipitated the instant charges was caused when
[Appellant] rear-ended a vehicle in the left lane. This caused
[Appellant] to lose control of the vehicle, which subsequently
flipped over. [Appellant’s] four children were in the vehicle at
the time, but none were properly restrained. As a result[,] the
vehicle itself landed on the head of one of the children, [A.P.]
(age 7 at the time of the accident), causing catastrophic damage
to her skull. As stated by Tiffany Pooler, [A.P.’s] mother, at the
sentencing hearing, [A.P.] has had … 30 brain surgeries as a
result of the accident, and pieces of her skull were removed
during certain of those procedures. These injuries also have
affected Ms. Pooler herself, as her life is now consumed by
caring for [A.P.]
Id. at 2-3 (citations to record omitted).
Regarding Appellant’s claim that his sentence is disproportionate to the
nature and circumstances of the offenses, the trial court states the
following:
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[Appellant’s] conduct led to the permanent and irreparable
disfigurement of his daughter[, A.P.], who can no longer lead a
normal life. She cannot care for herself, her mental state has
completely changed, and photographs introduced by the
Commonwealth at the sentencing hearing depict the gruesome
result of [A.P.’s] injuries that she will have to live with for the
rest of her life. Moreover, as set forth in the court’s July 12,
2017 [order denying Appellant’s motion to modify his sentence],
only sheer chance prevented such injuries from being inflicted on
[Appellant’s] other three children who were not appropriately
restrained in the vehicle. Each of the consecutive sentences
imposed by the court reflects the harm [Appellant] risked or
actually caused to these three children. The ‘nature and
circumstances’ of [Appellant’s] reprehensible conduct warrant
the sentence imposed by the court.
Id. at 3-4 (citations to record omitted).
Based on this record, we are satisfied that the sentencing court
adequately considered all of the mitigating circumstances and the section
9721(b) factors, including Appellant’s rehabilitative needs. We ascertain no
abuse of discretion in the ultimate sentence imposed by the court.
Judgment of sentence affirmed.
Judge Panella joins the memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/18
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