Com. v. Kaminski, S. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
STANLEY DAVID KAMINSKI, JR., : No. 1775 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, March 21, 2016,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0007134-2015
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 28, 2017
Stanley David Kaminski, Jr., appeals the judgment of sentence in
which the Court of Common Pleas of Bucks County, following an open guilty
plea, sentenced him to serve an aggregate term of 7 to 14 years’
imprisonment for homicide by vehicle while driving under the influence
(“DUI”), two counts of aggravated assault while DUI, and DUI.1
1
75 Pa.C.S.A §§ 3735(a), 3735.1(a), and 3802(d)(3), respectively. He also
received two years’ probation for two counts of recklessly endangering
another person, 75 Pa.C.S.A. § 2705. Appellant pled guilty but received no
further penalty for homicide by vehicle, two counts of aggravated assault by
vehicle, involuntary manslaughter, and three counts of recklessly
endangering another person. 75 Pa.C.S.A. §§ 3732(a) and 3732.1(a), and
18 Pa.C.S.A. §§ 2504(a) and 2705, respectively.
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As the trial court related, appellant’s plea included an admission to the
following facts:
. . . On July 1st of 2015 at 9:18 p.m. a
single-vehicle crash occurred in the
southbound lanes of Route 309 bypass in
West Rockhill, Bucks County. Pennridge
Regional police and emergency personnel
were dispatched to the location.
They were dispatched as a result of a
911 call from John and Paul Hasyn,
H-A-S-Y-N, who were driving their
vehicle on Route 309 in the same
direction as [appellant], when
[appellant’s] vehicle lost control and
almost hit the Hasyn’s vehicle directly
head on before leaving the roadway.
Upon arrival the police observed a green
2005 Saturn in the trees off the
roadway. The vehicle was some
20 yards into the wooded area. The
Saturn was observed with extensive
damage to the front, rear and driver’s
side of the vehicle.
. . . [T]he vehicle went off the roadway
in the wooded area where the vehicle
ultimately came to a stop.
The Saturn was occupied by four
subjects. The driver, who was
[appellant], Todd Rubin, Jacob Winter
and Summer DeCastro. Todd Rubin was
seated in the front passenger seat of the
Saturn and was pronounced deceased at
the scene due to the injuries suffered in
the crash. The driver and remaining
passengers . . . all required mechanical
extrication to remove them from the car.
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. . . [T]he entire roof of the car had to be
cut off to remove the occupants of the
vehicle. The responding fire department
removed the occupants and they were
taken to the hospital for serious injuries.
Jacob Winter was interviewed at the
hospital. Winter was seated in the back
seat passenger’s side of the Saturn,
Summer DeCastro was in the back seat
of the driver’s side.
Winter stated that the four had recently
left a party where they had been
drinking. He told police that once on 309
[appellant] began driving fast. When
Winter observed the speedometer hit
90 miles an hour he asked [appellant] to
slow down. Rather than slow down
[appellant] began to drive faster
reaching speeds of up to 110 miles per
hour, twice the posted speed limit of 55
miles an hour. Winter stated that he felt
the car slide off of the roadway and then
he hit a ditch.
Next thing he remembered was the fire
department cutting the roof off [the] car.
As a result of the crash Jacob Winter was
hospitalized with a broken neck which
required surgery to put rods in his neck
to stabilize his injury. Winter also
suffered from a severe concussion,
broken right arm in four places, which
required surgery to implant rods and
plates. He also fractured his hip, which
was dislocated from the impact of the
crash.
...
Summer DeCastro . . . suffered a severe
concussion, a broken collar bone,
fractured vertebrae, fractured pelvis,
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three fractured ribs, lacerations to her
legs and her hip was dislocated.
The autopsy of Todd Rubin revealed that
Rubin suffered several lacerations to his
face and scalp. He also suffered
numerous fractures to his vertebrae
causing significant damage to the
enclosed spinal cord causing a fatal
hemorrhage about his brain. Rubin also
suffered fractures to his ribs, bruised and
lacerated lungs and a large right
hemithorax.
...
The autopsy was conducted by Dr. Ian
Hood, forensic pathologist, and he
determined the cause of death to be
determined by multiple fatal injuries
suffered during the crash.
[Appellant’s] blood was secured through
implied consent. The blood was tested
through the Bucks County Crime Lab and
alcohol was present at . . . .128 percent.
His blood was also tested by National
Medical Services and tested positive for
marijuana, both the active ingredient and
metabolites and for synthetic marijuana.
Dr. Patel, a forensic toxicologist, would
opine that [appellant] was under the
influence of drugs and alcohol to a
degree that would impair his ability to
drive safe[l]y. Officer Tim Maloney, he’s
a sergeant with the Pennridge Regional
Police Department, conducted a crash
reconstruction in this case.
Sergeant Maloney determined that the
defendant was driving between 89 and
99 miles per hour at the point when the
Saturn crashed into the ditch, which was
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already off the road and losing
momentum going down a slight hill,
hitting a number [of] trees before the
vehicle came to its final resting place.
The vehicle actually went airborne when
it struck a number of those trees.
There were no mechanical defects of the
Saturn or the roadways which could have
contributed to the causation of this
crash. While incarcerated at the Bucks
County Correctional Facility and prior to
the preliminary hearing in this case,
[appellant] had asked the victim,
Jacob Winter, to tell the police that he
had lied about speeding at 110 miles an
hour to help [appellant] out in his
criminal case.
N.T. 3/21/16, pp. 20-26.
Trial court opinion, 7/12/16 at 2-3.
Following sentencing, appellant filed a motion for reconsideration of
sentence which the trial court denied after a hearing on May 9, 2016.
Appellant raises the following issue for this court’s review:
Did the sentencing court abuse its discretion by
sentencing [a]ppellant to serve an aggregate
sentence of not less than seven years nor more than
fourteen years of incarceration in a state correctional
facility by not considering mitigating evidence and
relying on factors that were already contemplated by
the available sentencing guidelines?
Appellant’s brief at 4.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
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abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. 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
Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
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Moury, 992 A.2d at 170 (citation omitted).
Here, we begin our analysis by determining whether appellant has
complied with the procedural requirements of challenging his sentence.
First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902
and 903. Second, appellant raises an issue that the trial court abused its
discretion when it failed to consider mitigating factors and relied on factors
that were already accounted for in the sentencing guidelines. A review of
the record reveals that appellant did not raise this issue at sentencing. In
his motion for reconsideration, appellant recounts his charges and
convictions and requests reconsideration of the sentence. However,
appellant does not raise the issue that he brings to this court for review. As
a result, because appellant did not raise this issue at sentencing or in his
post-sentence motion, it is waived even though the trial court addressed the
issue in its opinion. See Commonwealth v. Tejada, 107 A.3d 788, 799
(Pa.Super. 2015) (holding that where an appellant fails to preserve
discretionary aspects of sentencing claims at sentencing or in a post-
sentence motion, those claims are not subject to appellate review).
Consequently, this court does not have jurisdiction to address appellant’s
challenge to the discretionary aspects of his sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2017
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