Com. v. Rich, S. ( 2019 )

J-S79012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN VAN SMITH S. RICH :
:
Appellant : No. 214 MDA 2018
Appeal from the Judgment of Sentence December 19, 2017
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0003120-2015
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 06, 2019
Appellant, Steven Van Smith S. Rich, appeals from the judgment of
sentence imposed on December 19, 2017, and amended on December 27,
2017, in the Cumberland County Court of Common Pleas. We affirm.
The trial court summarized the relevant facts and procedural history of
this matter as follows:
At approximately midnight on May 23, 2015, [Appellant]
caused an accident involving personal injury when he failed to stop
at a red light and struck the rear of [Ms. Mary Hudson’s] vehicle
while it was proceeding through an intersection, which caused
[Ms. Hudson’s] vehicle to become inoperable on the side of the
road. [Appellant] did not stop and did not attempt to render aid
or exchange information with [Ms. Hudson]. A bystander[, Mr.
Adam Webb,] who had witnessed the accident[,] entered the
roadway on foot to check on the welfare of [Ms. Hudson] … , and
was fatally struck by a passing tractor-trailer. Eyewitnesses to the
accidents informed police … where [Appellant’s] vehicle was
located a short distance down the road from the initial collision.
Of note, [Appellant’s] car stopped down the road only because it
was disabled after its collision with [Ms. Hudson’s] vehicle. Upon
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investigation, it was discovered that [Appellant] was intoxicated.
[Ms. Hudson] later sought medical treatment for stiffness,
soreness, bruising, pain, and anxiety caused by the incident.
Trial Court Opinion, 6/1/18, at 3 (footnotes omitted).
On October 30, 2017, [Appellant] pled nolo contendere to
the following offenses: at Count 1, DUI - General Impairment,[1]
first offense, an ungraded misdemeanor; and at Count 4,
Accidents Involving Death or Personal Injury,[2] a first-degree
misdemeanor.2 After review of [Appellant’s] pre-sentence
investigation report (“PSI”) and the impact statement from [Ms.
Hudson], we sentenced [Appellant] on December 19, 2017 to the
following: at Count 1, to pay the costs of prosecution and a $300
fine, and incarceration in Cumberland County Prison for forty-
eight (48) hours to six (6) months; at Count 4, to pay the costs
of prosecution and a $100 fine, and incarceration in Cumberland
County Prison for four (4) to twenty-three (23) months, to run
consecutively to the sentence at Count 1.3 [Appellant] was further
directed to obtain a drug and alcohol evaluation, comply with any
recommended treatment, abstain from consuming alcohol, and to
pay $20.15 restitution to [Ms. Hudson].4
2 See In Re: Nolo Contendere Plea, Order of Court,
October 30, 2017 (Peck, J.). [Appellant’s] nolo
contendere plea was in full satisfaction of the charges
for which he was to be prosecuted, which included
eight additional various misdemeanor and summary
counts stemming from a DUI accident caused by
[Appellant]. See Nolo Plea Colloquy, Plea of
[Appellant], October 30, 2017.
3See In Re: Sentence, Order of Court, December 19,
2017 (Peck, J.). We sentenced [Appellant] to the
minimum sentence in the aggravated range of the
sentencing guidelines for this offense because of the
seriousness of the offense and the impact to [Ms.
Hudson].
____________________________________________
1 75 Pa.C.S. § 3802(a)(1).
2 75 Pa.C.S. § 3742(a).
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4 Id. The amount of restitution to [Ms. Hudson] was
this low amount because insurance had covered the
vast majority of the costs of the accident. See
Transcript of Proceedings, In Re: Sentence, December
19, 2017 at p. 5 (Peck, J.).
On December 21, 2017, [Appellant] filed a Motion to Modify
and Stay Commencement of Sentence, arguing that our
sentencing of [Appellant] in the aggravated range guidelines on
Count 4 was improper, given this Court’s reasons for the same,
and requesting that the four-month minimum sentence be
reduced, or alternatively, for the sentences imposed at Count 1
and Count 4 to run concurrently.5 On December 27, 2017, we
granted [Appellant’s] Motion in part and amended [Appellant’s]
sentences to run concurrently to each other.6 [Appellant] filed a
Notice of Appeal from our December 19, 2017 Order on February
1, 2018.7
5 See [Appellant’s] Motion to Modify and Stay
Commencement of Sentence, December 21, 2017.
6 See Order of Court, December 27, 2017 (Peck, J.).
All other requests in [Appellant’s] Motion were denied.
7 [Appellant’s] Notice of Appeal, February 1, 2018.
Trial Court Opinion, 6/1/18, at 1-2 (footnote 1 omitted). Both Appellant and
the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issue for this Court’s
consideration:
Did the court abuse its discretion by sentencing [Appellant] to an
aggravated range minimum sentence of four months while
impermissibly considering factors already included within the
Sentencing Guidelines as the sole reason for aggravating the
sentence?
Appellant’s Brief at 7 (full capitalization omitted).
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Appellant’s issue presents a challenge to the discretionary aspects of his
sentence. It is well settled that when an appellant challenges the discretionary
aspects of his sentence there is no automatic appeal; rather, the appeal will
be considered a petition for allowance of appeal. Commonwealth v. W.H.M.,
932 A.2d 155, 162 (Pa. Super. 2007). Furthermore, as this Court noted in
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
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 [the] appellant has 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 [the] 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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Appellant has satisfied the first three elements of the four-part test from
Moury. Appellant preserved the sentencing issue by filing a timely post-
sentence motion and notice of appeal, and he provided a statement of reasons
for allowance of appeal from the discretionary aspects of his sentence
pursuant to Pa.R.A.P. 2119(f) in his brief. Next, we must determine if
Appellant has raised a substantial question for our review. Moury, 992 A.2d
at 170.
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A substantial question requires a demonstration that “the
sentence violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.”
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.
2005). This Court’s inquiry “must focus on the reasons for which
the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the
merits.” Id. Whether a substantial question has been raised is
determined on a case-by-case basis; the fact that a sentence is
within the statutory limits does not mean a substantial question
cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255
(Pa. Super. 2003). However, a bald assertion that a sentence is
excessive does not by itself raise a substantial question justifying
this Court’s review of the merits of the underlying claim. Id.
Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012).
In his Pa.R.A.P. 2119(f) statement, Appellant avers that the trial court
relied on impermissible factors and fashioned Appellant’s sentence on
considerations already included in the Sentencing Guidelines. Appellant’s Brief
at 12-13. We conclude that Appellant has raised a substantial question for
our review. Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa. Super.
2003).
It should be noted that “sentencing is a matter vested in the sound
discretion of the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion.” Commonwealth v. Sheller,
961 A.2d 187, 190 (Pa. Super. 2008). Additionally, an abuse of discretion is
not merely an error in judgment; rather, an appellant must establish that the
trial court ignored or misapplied the law, exercised its judgment for reasons
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of partiality, prejudice, bias, or ill will, or reached a manifestly unreasonable
decision. Id.
“It is impermissible for a court to consider factors already included
within the sentencing guidelines as the sole reason for increasing or
decreasing a sentence to the aggravated or mitigated range.” Simpson, 829
A.2d at 339 (citation omitted) (emphasis added). However, trial courts may
consider factors already included in the Sentencing Guidelines if those factors
supplement other extraneous sentencing information. Id. (citation omitted).
It is well settled that in Pennsylvania, a fundamental norm of the
sentencing process is that a criminal defendant’s sentence be individualized.
Commonwealth v. Luketic, 162 A.3d 1149, 1160 (Pa. Super. 2017) (citing
Commonwealth v. Devers, 546 A.2d 12, 13 (Pa. 1988)). “Although
Pennsylvania’s system stands for individualized sentencing, the court is not
required to impose the ‘minimum possible’ confinement.” Moury, 992 A.2d
at 171 (citation omitted). “When imposing a sentence, the sentencing court
must consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact on victim and
community, and rehabilitative needs of the [Appellant].” Commonwealth v.
Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (citation omitted).
The trial court addressed this issue as follows:
Importantly, we considered that there are far-reaching
consequences to [Appellant]’s decision not to stop and render aid
to [Ms. Hudson] at the scene of the accident at the time it
occurred, as he was required by law to do. We also acknowledge
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that it is within our purview to consider the surrounding
circumstances of the offense when fashioning a sentence for
[Appellant]. Here, [Appellant], by not stopping, set off a chain of
events that resulted in injury to [Ms. Hudson], the death of [Mr.
Webb], and physical hazards to others using the road. [Ms.
Hudson] was stranded on the side of a busy highway in an
inoperable vehicle in the wee hours of the morning, in physical
danger due to her location. Another driver, coming to the victim’s
aid, left her own vehicle partially in the lane of traffic in order to
alert oncoming vehicles to the accident scene, creating an
additional peril to her own person and property. [Mr. Webb,] [a]
pedestrian who witnessed the collision, after coming to the aid of
the victim and then attempting to check on the welfare of
[Appellant] himself, was struck and killed by traffic on the
roadway. Police and medical personnel who responded to the
accident had to track down [Appellant] at his location some
distance away from the scene, creating additional danger for them
as well. Multiple cars stopped in or near the road due to the
accident and debris strewn between the two cars involved in the
collision created additional hazards for others using the road at
that time of night. Much of this could have been avoided had
[Appellant] heeded his legal duty to stop and remain at the scene.
[Appellant] was explicitly informed on multiple occasions
prior to his sentencing that the sentence was entirely up to this
[c]ourt, and defense counsel acknowledged the same. Yet now
[Appellant] complains that we abused our discretion by sentencing
him in the bottom of the aggravated range of the sentencing
guidelines. However, at the time of sentencing, both the
Commonwealth and [Appellant] had agreed to defer to our
judgment regarding sentencing. Thus, exercising our own
judgment, we sentenced [Appellant] to an aggravated range
sentence, and that sentence was neither beyond the statutory
limit nor manifestly excessive. Likewise, we do not find credible
any claim that the aggravated range sentence we imposed, in
recognition of the effect on the victim and the seriousness of the
circumstances surrounding the offense, was an abuse of
discretion. This claim is meritless.
We noted on the record at the time of sentencing that we
had reviewed both the pre-sentence investigation report of
[Appellant] as well as [Ms. Hudson’s] impact statement. We
considered all of the information contained within those
documents in reaching our decision of sentence. We also noted
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that we were sentencing [Appellant] in the aggravated range due
to “the seriousness of the offense, and the impact that this offense
has had on the victim.” Here [Appellant] calls into question the
adequacy of our reasons for imposing an aggravated range
sentence, stating that “the seriousness of the offense is taken into
account in the offense gravity score” and “the impact to the victim
is incorporated into the accident charge.” However, when we
cited to the “seriousness of the offense” we also took into
consideration the serious nature of the surrounding
circumstances and the consequences to the community,
including the death of the bystander and the additional
dangers to third parties that were posed as a result of
[Appellant’s] flight from the scene, and not solely the
nature of the offense easily calculable by the offense
gravity score. At the same time, physical injury is not the
only impact that this incident has had on [Ms. Hudson].
[Ms. Hudson] also had to witness the death of an innocent
person, and now experiences anxiety while driving at
night. Therefore, we provided sufficient reasons for sentencing
[Appellant] in the aggravated range of the sentencing guidelines
for the Accidents charge.
Trial Court Opinion, 6/1/18, at 9-11 (footnotes omitted) (emphasis added).
As noted above, the trial court had the benefit of a pre-sentence
investigation report (“PSI”), which gives rise to a presumption that the trial
court properly considered and weighed all relevant factors. See
Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016)
(“[W]here the sentencing judge had the benefit of a [PSI] report, it will be
presumed that he or she was aware of the relevant information regarding the
[Appellant]’s character and weighed those considerations along with
mitigating statutory factors.”). Moreover, by their nature, victim impact
statements are unique to the victim and illustrative of the crime’s impact on
the individual and the community. Swope, 123 A.3d at 338; see also
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Commonwealth v. King, 182 A.3d 449 (Pa. Super. 2018) (discussing the
breadth and contents of a victim impact statement). Appellant’s argument
that the impact of a crime on a victim is already included in the Sentencing
Guidelines would nullify victim impact statements. We cannot agree with
Appellant’s assertion, and we find no legal authority for it.
Moreover, it is self-evident that the “seriousness” of an offense cannot
be considered in a vacuum. Indeed, the seriousness of a given crime is
contemplated by the Sentencing Guidelines; however, an aggravated-range
sentence may be justified when the individual circumstances of the case are
atypical of the crime for which Appellant was convicted, making a more severe
punishment appropriate. Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.
Super. 2006).
In the case at bar, the trial court explained that Appellant struck Ms.
Hudson’s vehicle causing her injuries, and Appellant fled without rendering
aid. This collision led to a bystander, Mr. Webb, who was attempting to render
aid to victims of an accident Appellant caused, being struck and killed by a
third vehicle in full view of Ms. Hudson and other witnesses. The trial court
considered the PSI, the distinct facts of this case, which included the death of
Mr. Webb that occurred in front of Ms. Hudson and other eyewitnesses, in
addition to Ms. Hudson’s impact statement. Trial Court Opinion, 6/1/18, at 9-
11. The trial court concluded that the unique circumstances of this case
distinguished Appellant’s crimes from other instances of DUI and accidents
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involving death or personal injury. Id. Accordingly, we cannot agree that
factors already included within the Sentencing Guidelines were the sole basis
for Appellant’s sentence in the aggravated range.
After review, we discern no abuse of discretion by the trial court
sentencing Appellant in the aggravated range of the Sentencing Guidelines.
Accordingly, Appellant is entitled to no relief, and we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/06/2019
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