Com. v. Knight, F. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
FREDDIE KNIGHT, : No. 911 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, April 3, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0005253-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 2, 2014
This is an appeal from the judgment of sentence entered April 3, 2013,
in the Court of Common Pleas of Allegheny County following appellant’s
guilty plea to several charges stemming from a motor vehicle accident. We
affirm.
At appellant’s guilty plea hearing, the Commonwealth presented the
following summary of the evidence:
That on February 12, 2012, the victim,
Tammy Roberts, and her boyfriend, Peter Gearhart,
were having dinner at the Creighton Hotel located at
995 Freeport Road in East Deer Township, Allegheny
County.
Roberts and Gearhart left the restaurant
around 10:00 that evening, intending to walk to their
home which was only a few blocks away. After the
victim and Gearhart exited the restaurant, they
found themselves on the sidewalk at the foot of
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several cement stairs descending from the main bar
entrance.
They noticed the defendant’s vehicle traveling
southbound on Freeport Road. Peter Gearhart would
have testified that the defendant’s vehicle which was
a 1996 purple Ford Mustang appeared to be traveling
at a high rate of speed and when adjacent to the
hotel lost control with the car descending into a yaw
[sic] and traveling sideways.
Before coming to rest, the defendant’s car
struck Tammy Roberts and pinned her leg and foot
against the front cement stairs of the Creighton
Hotel.
Gearhart could see the defendant,
Freddie Knight, in the driver seat of the vehicle with
the female later identified as Carrie Arblaster in the
front passenger seat.
The defendant then put the car into reverse
and began to flee the parking lot. Realizing the
defendant was leaving the scene, Mr. Gearhart threw
a full sixpack of beer he was carrying at the
defendant’s car cracking the windshield.
The defendant fled in his vehicle down a side
street and eventually out of view of Mr. Gearhart.
Police were immediately called and the
description of the defendant and his vehicle was
broadcast over police ban [sic]. Fawn Township
police officer Christopher Cattone, while on patrol,
spotted the defendant’s vehicle on Route 908, some
12 miles from the Creighton Hotel.
Defendant’s vehicle appeared to be heavily
damaged, was smoking, and the head and taillights
were flickering.
Officer Cattone initiated lights and sirens and
attempted a traffic stop of Knight’s vehicle. At that
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point Knight accelerated his vehicle with Officer
Cattone in pursuit.
As the chase proceeded down Route 908,
speeds reached approximately 70 to 80 miles per
hour. Near the intersection of 908 and Ridge Road,
the defendant drove his car completely into the
oncoming lane of traffic and onto the shoulder,
finally turning onto a gravel road called Greenhaven
Lane.
The defendant’s vehicle then spun out of
control, striking the pursuing police car before
coming to a stop.
Defendant Freddie Knight then emerged from
the driver’s side door and escaped on foot into the
surrounding forest. Officer Cattone gave chase on
foot into the woods where he found the defendant
several hundred yards away attempting to hide
under some vegetation and brush.
Refusing repeated commands to show his
hands which the defendant had placed underneath
himself, Officer Cattone deployed his taser once on
the defendant which compelled Knight to follow
directions thereafter.
Knight voluntarily submitted to a blood draw at
Allegheny Valley Hospital. The blood [was] tested by
the Allegheny County Office of the Medical Examiner
at Lab 12LAB01319. Testing performed showed
negative results for all legal and prescription
narcotics but did find a low level whole blood ethanol
reading of 0.019 percent.
The defendant gave a statement to
investigating Allegheny County police detectives in
which he admitted driving the Mustang, striking the
victim, and fleeing from the police.
Although the defendant claimed his vehicle was
struck from behind by a pickup truck causing him to
lose control of his vehicle before the collision at the
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hotel, he did concede that he fled the scene and also
the police subsequently due to his driver’s license
being suspended.
The Commonwealth would have introduced the
certified record from the Pennsylvania Department of
Transportation showing this defendant’s driver’s
license at the time of this incident was suspended
due to various traffic violations.
Carrie Arblaster, who was the passenger in
defendant’s vehicle, would have testified consistent
with the defendant that their vehicle had been forced
off the road by a truck.
Arblaster would have also testified that she
repeatedly told the defendant to return to the scene
of the collision to which the defendant refused saying
he had a suspended license.
Arblaster also screamed at [defendant] during
the police pursuit, telling him to pull over. Again,
[defendant] responded that he had to escape due to
the collision and his license being suspended.
The standard vehicle accident reconstruction of
the accident was impossible in this case mainly due
to the defendant leaving the scene.
Detective Zabelski and others later inspected the
defendant’s vehicle and found it to be serviceable
other than the damage sustained in this incident. All
breaking [sic] systems worked appropriately.
Also [in] an attempt to corroborate or disprove
the defendant’s claim about the truck striking the
rear of the defendant’s vehicle, detectives inspected
and photographed the rear bumper. Some minor
damage was noted making a definitive scientific
stance on defendant’s contention impossible.
Also the defendant did not appear to have the
proper insurance covering the vehicle.
....
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The victim’s injuries in this case, 48-year old
Tammy Roberts was initially treated at the scene by
EMS service medic no. 272. A bystander with some
military combat experience had also applied a
tourniquet to the victim’s leg prior to EMS arriving.
As the victim’s right foot and leg were
completely pulverized, EMS personnel realized
amputation would be necessary.
Victim was transported via Life Flight 4 to
Allegheny General Hospital where she was intubated
and underwent immediate emergency surgery for
right lower extremity blood [sic] trauma with tibia
fibula fracture, open as well as vascular injury.
Ms. Roberts was categorized as being in critical
condition and was intubated. Because of extensive
trauma to her right leg, her right leg was amputated
below the knee. The victim also underwent some
14 follow-up surgical procedures over the next few
weeks and months to remove necrotic tissue and
shape the stump on her leg to allow for the use of
the prosthesis.
In the weeks and months following the medical
procedures, the victim went through physical therapy
to use a prosthetic leg.
Ms. Roberts is present today. She is in a
wheelchair. She does have a prosthetic leg. She is
still in the process of learning to use that. She’s due
to be outfitted with a new, as it was described to me,
digital prosthesis which will happen sometime before
the defendant’s sentencing.
Notes of testimony, 12/13/12 at 10-18.
Appellant pled guilty to accidents involving death or personal injury,
resisting arrest, accidents involving death or personal injury while not
properly licensed, and fleeing or attempting to elude police in exchange for
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the withdrawal of several other charges. On April 3, 2013, the court
sentenced appellant to an aggregate term of imprisonment of 5 to 10 years.
On April 12, 2013, a post-sentence motion requesting reconsideration of
sentence was filed. The trial court denied the post-sentence motion on
April 23, 2013. This appeal followed. Appellant was ordered to file a
Rule 1925(b) statement and he complied. Appellant raises the following
issue:
I. DID THE SENTENCING COURT ACT
UNREASONABLY BY IMPOSING EXCESSIVE
SENTENCES RUNNING CONSECUTIVELY AT
EACH COUNT AND EXCEEDING THE
GUIDELINES AT SOME COUNTS, WITHOUT
ADEQUATELY CONSIDERING ALL STATUTORILY
REQUIRED SENTENCING FACTORS?
Appellant’s brief at 6.
Appellant’s claim challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of
sentencing do not entitle an appellant to review as of
right. 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
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
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Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
Objections to the discretionary aspects of a sentence
are generally waived if they are not raised at the
sentencing hearing or in a motion to modify the
sentence imposed.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citations
omitted).
Instantly, appellant filed a post-sentence motion for reconsideration
and then filed a timely notice of appeal. In addition, appellant has complied
with the briefing requirements of Commonwealth v. Tuladziecki, 522 A.2d
17 (Pa. 1987), and Pa.R.A.P. 2119(f) by including a concise statement of his
reasons for challenging the discretionary aspects of his sentence. Last,
appellant presents a substantial question for our review. We have held that
“when a sentence exceeds the aggravated range of the guidelines and there
is an allegation of excessiveness, this Court must review the record to
determine whether there was an abuse of discretion.” Commonwealth v.
Monahan, 860 A.2d 180, 182 (Pa.Super. 2004), appeal denied, 878 A.2d
863 (Pa. 2005).
Preliminarily, we note that the sentencing judge has a great deal of
discretion in imposing a sentence. A sentence will not be reversed absent an
abuse of discretion. See Commonwealth v. Keiper, 887 A.2d 317, 319
(Pa.Super. 2005) (citation omitted). Moreover,
[b]y statute, this Court is required to vacate a
sentence and remand for resentencing if the
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sentencing court imposed a sentence that is outside
of the sentencing guidelines and the sentence is
unreasonable. 42 Pa.C.S.A. § 9781(c)(3).
. . . . In reviewing the record the appellate court
shall have regard for:
(1) The nature and circumstances of the
offense and the history and
characteristics of the defendant.
(2) The opportunity of the sentencing court
to observe the defendant, including any
presentence investigation.
(3) The findings upon which the sentence
was based.
(4) The guidelines promulgated by the
commission.
42 Pa.C.S.A. § 9781(d).
In addition, when a sentencing court deviates
from the sentencing guidelines, it is important that
the court reflect a consideration of the sentencing
guidelines, the background and character of the
defendant, the circumstances of the crime, and
impose a sentence that is consistent with the
protection of the public and the rehabilitative needs
of the defendant.
Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa.Super. 2007) (internal
case citations and quotations omitted).
We observe that the Pennsylvania sentencing guidelines are not
mandatory, and thus do not prohibit any particular sentence within the
statutory maximum. See, e.g., Commonwalth v. Mouzon, 812 A.2d 617,
621 (Pa. 2002) (plurality); Commonwealth v. Tirado, 870 A.2d 362, 366
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(Pa.Super. 2005). Here, the trial court imposed an aggregate sentence of
5 to 10 years’ imprisonment. More specifically, the trial court imposed
consecutive terms of 2 to 4 years for appellant’s offenses of accidents
involving death or personal injury and accidents involving death or personal
injury while not properly licensed which fell beyond the aggravated range of
the guidelines, but below the statutory maximum.1 The trial court imposed
consecutive terms of 6 to 12 months for the resisting arrest and fleeing and
eluding offenses which fell in the aggravated range.2 Thus, absent an abuse
of discretion, we may not disturb the sentencing court’s imposition of
sentence.
Appellant argues the trial court failed to give the required
individualized consideration to all the Section 9721(b) factors when
sentencing him to an “excessive sentence” in the aggravated range on two
counts and “completely outside” of the aggravated range on two other
counts. (Appellant’s brief at 25-26.) We begin by noting that appellant has
waived any argument concerning the two offenses, resisting arrest and
fleeing and eluding police, for which he received a sentence in the
aggravated range. This claim was not preserved in his motion for
1
With an offense gravity score of 5 and a prior record score of 3, the
guidelines provide for a standard range of 6 to 16 months and an
aggravated range of 16 to 19 months.
2
With an offense gravity score of 2 and a prior record score of 3, the
guidelines provide for a standard range of RS (restorative sanctions) to
4 months and an aggravated range of 4 to 7 months.
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reconsideration. (See Docket #13.) Additionally, our review of this matter
indicates this claim was not in appellant’s court-ordered Rule 1925(b)
statement and, as such, was not addressed by the trial court in its
Rule 1925(a) opinion. (See Docket #21.) The first time it appears is in his
appellate brief. See Commonwealth v. Nischan, 928 A.2d 349, 355
(Pa.Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007) (an appellant
can seek to appeal discretionary sentencing issues only after preserving
them during the sentencing hearing or in post-sentence motions). We will
proceed to address appellant’s concerns regarding the sentence he received
that fell outside the guidelines but within the statutory maximum.
Appellant complains the trial court placed too much emphasis on the
victim’s serious injuries and his prior criminal history which were factors
already accounted for by the guidelines, while failing to adequately consider
his rehabilitative needs and other mitigating factors, such as, his job and the
effect incarceration would have on his family. Appellant contends the trial
court should have placed greater weight on the fact that he took
responsibility by pleading guilty, apologizing for his actions and expressing a
willingness to pay restitution.
Initially, we note the trial court had the benefit of a pre-sentence
report. “Our Supreme Court has determined that where the trial court is
informed by a pre-sentence report, it is presumed that the court is aware of
all appropriate sentencing factors and considerations, and that where the
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court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.Super. 2009), citing
Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988). “The
sentencing judge can satisfy the requirement that reasons for imposing
sentence be placed on the record by indicating that he or she has been
informed by the pre-sentencing report; thus properly considering and
weighing all relevant factors.” Id., citing Commonwealth v. Fowler, 893
A.2d 758, 766-767 (Pa.Super. 2006).
It appears appellant is asking us to re-weigh the mitigating factors. In
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009), this court
noted the sentencing court was fully informed of all mitigating factors at
play. The Macias court stated:
We presume that the court, which was in possession
of those facts, applied them. The sentencing court
merely chose not to give the mitigating factors as
much weight as Appellant would have liked and
decided that the facts did not warrant imposition of a
sentence lower than the standard range. We
cannot re-weigh the sentencing factors and
impose our judgment in place of the sentencing
court.
Id. (emphasis added).
At the sentencing hearing, the Commonwealth pointed out appellant
failed to make any payment on the $11,259 in restitution that he owed the
victim. (Notes of testimony, 4/3/13 at 3, 9.) The prosecutor stated he had
not objected to appellant being out on bond because it was his hope that
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appellant would make some sort of payment to the victim. (Id.) The trial
court noted that during the time appellant was out on bond, he was involved
in a domestic violence assault and a fleeing and eluding offense. (Id. at
14.) The court noted appellant’s driving history: operator must be licensed,
three violations; driving while under suspension, two violations; driving too
fast for conditions, one violation; and he failed to respond to notifications
from PennDOT ten times. The trial court went on to state:
The Court has taken into consideration the
pre-sentence report, the sentencing guidelines, his
individual background, his expression of remorse
today, as well as him pleading guilty. The Court
notes and incorporated earlier the prior proceedings
wherein the injuries to Miss Roberts were listed.
Briefly stated, she has undergone amputation
on one of her legs. She has had at least 14 surgical
procedures. Skin graphs [sic]. And she has stated
several times it has absolutely ruined the quality of
her life. Despite her resilience and her resolve to
resume life as best she can.
The Court finds that the defendant’s history
here, he has been sentenced to a period of
community supervision, which has failed to impress
upon him and rehabilitate him to a positive lifestyle.
He has undergone periods of county incarceration for
a burglary charge, 2 to 12 months in 1992. Another
3 to 23 and-a-half for a theft case in 1990. And a
burglary sentence in 1992 of two to five years. And
both times, in state and county, he was paroled and
had to be revoked from those paroles by virtue that
he failed to abide by the conditions of parole. And
he had a firearms charge in 2003 where he got two
years[’] probation.
The Court has taken into account the long
period of time where he was apparently living in
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conformity with the law. The Court notes that those
offenses are reflected in the prior record score and
the Court is not considering them outside of that,
except for the fact to note the various periods of
supervision, which he has been extended in the
community or locally or minimal periods relatively
speaking of state incarceration, which has failed to
impress upon him the need to conform to the laws of
society. And which in this incident, has resulted in
harm to Miss Roberts. Not only her, but her
significant other, as well as her extended family.
And I think her grandchildren talked about it at a
prior proceeding.
Consequently, the Court believes consistent
with the statutory obligation, taking into account the
defendant’s individual background, rehabilitative
needs, such as they are and have previously
attempted to be addressed and noted.
The Court has taken into account the impact of
this crime on Miss Roberts and her extended family
in terms of the injuries. The Court also has to
consider the protection of society so that persons are
removed from the danger of Mr. Knight’s conduct in
the future insofar as I can be within the parameters
of the law in my sentencing obligation.
Id. at 15-17.
Based on the above, the trial court was aware of the sentencing
guidelines, considered all requisite factors, and stated its reasons on the
record for sentencing appellant outside the sentencing guidelines. See
Commonwealth v. Sheller, 961 A.2d 187, 191-192 (Pa.Super. 2008) (no
abuse of discretion for sentencing outside guidelines where sentencing court
considered all requisite factors, had benefit of presentence report, and had
opportunity to observe defendant’s characteristics and history), appeal
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denied, 980 A.2d 607 (Pa. 2009). We conclude that the trial court placed
adequate reasons on the record to support its deviation from the guidelines.
Accordingly, we discern no abuse of discretion by the court in the sentence
imposed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/2/2014
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