Commonwealth v. Lamonda , 2012 Pa. Super. 180 ( 2012 )

OPINION BY

PANELLA, J.

Appellant, Thomas A. Lamonda, appeals from the judgment of sentence entered on July 22, 2009, by the Honorable Howard F. Knisely, Court of Common Pleas of Lancaster County. In this appeal, we are asked to determine, inter alia, whether the imposition of an enhanced sentence for a conviction of homicide by vehicle while driving under the influence, when it was not established that intoxication was a cause of the incident, violates equal protection under the law. Because we conclude that it does not, and that Lamonda’s remaining issues merit no relief, we affirm.

On May 6, 2009, a jury found Lamonda guilty of two counts of homicide by vehicle arising from an incident where a tractor-trailer driven by Lamonda entered an oncoming lane of traffic and struck a passenger vehicle, resulting in the death of all the occupants of the passenger vehicle. On the same date, Judge Knisely found La-monda guilty of driving under the influence of cocaine and the summary offenses of leaving his lane of travel in an unsafe manner, driving at an unsafe speed, and unlawful activities while driving. Thereafter, on July 22, 2009, Judge Knisely imposed an aggregate sentence of forty (40) to One hundred twenty (120) months of imprisonment. After the trial court denied post-sentence motions, Lamonda filed this timely appeal.

On appeal, Lamonda raises four issues for our review, which we restate for clarity:

I. The insufficiency of evidence with regard to Homicide by Vehicle;

II. Whether the imposition of an enhanced sentence for Homicide by Vehicle DUI-related violated equal protection rights;

III. 'Whether the trial court abused its discretion by imposing an enhanced sentence for Homicide by Vehicle DUI-related;

IV. Was the aggregate sentence manifestly excessive and unreasonable?

See Appellant’s Brief, at 7-8.

In his first issue on appeal, Lamonda contends that the evidence at trial was insufficient to establish that he was guilty of homicide by vehicle. The homicide by vehicle statute provides that a driver who recklessly or with gross negligence causes the death of another person by violating any non-DUI motor-vehicle law is guilty of a felony of the third degree. See 75 Pa. Cons.Stat.Ann. § 3732. Lamonda specifically challenges that the Commonwealth failed to present evidence capable of establishing that he violated any motor-vehicle law.

Our standard of review for challenges to the sufficiency of the evidence is well established.

As a general matter, our standard of review of sufficiency claims requires that we evaluate the record “in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.” Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000). “Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt.” Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.Super.2005). Nevertheless, “the Commonwealth need not establish guilt to a mathematical certainty.” Id.; see also Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa.Super.2000) (“[T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant’s innocence.”). 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. See Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.2001).

The Commonwealth may sustain its burden by means of wholly circumstantial evidence. See Brewer, 876 A.2d at 1032. Accordingly, “[t]he fact that the evidence establishing a defendant’s participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence.” Id. (quoting Commonwealth v. Murphy, 795 A.2d 1025, 1038-39 (Pa.Super.2002)). Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant’s crimes beyond a reasonable doubt, the appellant’s convictions will be upheld. See Brewer, 876 A.2d at 1032.

Commonwealth v. Stays, 40 A.3d 160, 167 (Pa.Super.2012).

As noted above, Lamonda’s sufficiency challenge is grounded in an argument that insufficient evidence was presented to convict him of violating any motor-vehicle laws. The trial court convicted Lamonda of violating multiple motor-vehicle laws: leaving his lane in an unsafe manner, driving at an unsafe speed, and unlawful activities while driving. If any one of these convictions is supported by sufficient evidence of record, Lamonda’s challenge fails.

Accordingly, we turn to the charge that Lamonda left his lane of travel in an unsafe manner. It is illegal in Pennsylvania for a driver to leave a clearly marked lane of travel before ascertaining that he can do so safely. See 75 Pa. Cons.Stat.Ann. § 3309. Lamonda does not contest this rule; he merely argues that the statute has a mens rea requirement of “intentionally.” ¹ See Appellant’s Brief, at 28. Upon closer review, however, it is clear that Lamonda’s argument is that his tractor-trailer left the lane of travel on its own after the failure of the front left steering tire. See Appellant’s Brief, at 28 (citing, inter alia, Lamonda’s testimony that he did not deliberately turn his vehicle into opposing lane of traffic). This is technically not an argument over Lamonda’s state of mind, but a contention that there was no volitional act on Lamonda’s part that caused the vehicle to leave the lane of travel.

“A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act....” 18 Pa. Cons.Stat.Ann. § 301(a). Therefore, the “Pennsylvania Crimes Code does not impose criminal liability on a person for an involuntary act.” Commonwealth v. Fierst, 423 Pa.Super. 232, 620 A.2d 1196, 1202 (1993), appeal denied, 584 Pa. 672, 880 A.2d 1236 (2005).

In the case sub judice, the Commonwealth presented the testimony of Sergeant Jeff Jones of the Manheim Township Police Department. The trial court accepted Sergeant Jones as an expert in accident reconstruction. See N.T., Trial, 5/4/2009 — 5/6/2009, at 180. Sergeant Jones testified that, in his expert opinion, the tractor-trailer’s front left steering tire failed after the collision. See id., at 231. Sergeant Jones also noted that upon examining the accident scene, he noticed that the front steering wheels of the tractor were both oriented to the left. See id., at 194-195. Furthermore, investigation of the accident scene revealed that the victims’ vehicle hit the inside wall of the tractor-trailer’s front left steering tire, indicating that it had been turned to the left when impact occurred. See id., at 195. Based upon these and other observations, Sergeant Jones opined that Lamonda steered the tractor-trailer into the oncoming lane due to Lamonda’s failure to recognize an obstacle in his lane in a timely manner. See id., at 238.

This testimony is sufficient, if believed, to establish that Lamonda moved the tractor-trailer out of its lane of travel of his own volition. On appeal, we must accept this evidence as true in evaluating the sufficiency of the evidence. As such, there was sufficient evidence to establish that Lamonda violated a motor-vehicle law, thereby causing the death of the two victims. Accordingly, Lamonda’s first issue on appeal merits no relief.

Next, Lamonda argues that the trial court violated his rights to equal protection under the law. Lamonda contends that the application of an enhanced offense gravity score, based upon the fact that a DUI conviction arose out of the same incident, is devoid of any rational basis and therefore violates the Equal Protection clause of the United States Constitution.² Specifically, Lamonda alleges that the aggravated classification of a homicide by vehicle conviction that arises from an incident involving, but not caused by, driving under the influence of a narcotic has no rational basis.

“The essence of the constitutional principle of equal protection under the law is that like persons in like circumstances will be treated similarly.” Commonwealth v. Bullock, 868 A.2d 516, 524 (Pa.Super.2005) (citation omitted).³ Under an equal protection analysis, there are three recognized categories of governmental classification, each requiring a separate standard of scrutiny. See Commonwealth v. Hilliar, 943 A.2d 984, 996 (Pa.Super.2008) (citation omitted). Lamonda, in his appellate brief, concedes that this appeal requires, the third or least restrictive standard of scrutiny. See Appellant’s Brief, at 35. As such, the classification at issue will be found to be valid unless the classification bears no rational relationship to a legitimate governmental interest. See Hilliar, 943 A.2d at 984.

Lamonda argues that there was no evidence of record capable of supporting a finding that his abilities were impaired by the presence of cocaine metabolites in his bloodstream. Therefore, Lamonda contends, the trial court’s use of the aggravated classification in the sentencing guidelines bears no rational relationship to any legitimate governmental interest.

To address Lamonda’s claim we turn to the Sentencing Commission’s statements about these guidelines when they were adopted. The current subcategories of homicide by vehicle sentencing guidelines were proposed by the Pennsylvania Sentencing Commission on May 11, 1991. In the proposal, the Sentencing Commission noted that “[t]o reflect the seriousness of a death occurring at the time a person is driving under the influence, the Commission proposes establishing higher offense gravity scores for ... homicide by vehicle if the defendant is also convicted of driving under the influence which occurred at the same time.” 21 Pa. Bull. 19, 2238 (May 11, 1991).

We conclude that this reasoning is sufficiently related to a legitimate governmental interest to survive an equal protection challenge. Notably, it is beyond question that the Commonwealth has a legitimate interest in discouraging people from driving motor vehicles while under the influence of narcotics such as cocaine. Providing for stiffer penalties should a driver cause the death of another person while under the influence of a controlled substance, regardless of whether such influence impaired the driver, is certainly rationally related to the goal of discouraging people from driving under the influence.

Under the relaxed standard of scrutiny Lamonda concedes is applicable to this case, it is not the function of this Court to weigh the competing concerns and interests at stake in making this classification. See Commonwealth v. McCoy, 895 A.2d 18, 35 (Pa.Super.2006) (“If the court determines that the classifications are genuine, it cannot declare the classification void even if it might question the soundness or wisdom of the distinction.”) Rather, we must merely determine whether there is a rational relationship to a legitimate governmental interest. As we determine that there is such a relationship, we conclude that Lamonda’s second issue on appeal merits no relief.

In his third and fourth issues, Lamonda challenges the discretionary aspects of his sentence. “Issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings.” Commonwealth v. Shugars, 895 A.2d 1270, 1273-74 (Pa.Super.2006). “Absent such efforts, an objection to a discretionary aspect of a sentence is waived.” Id., at 1274.

The certified record reveals that Lamon-da filed a post-sentence motion that challenged the discretionary aspects of the sentence imposed. We therefore proceed to address his argument on appeal.

“A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super.2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004) (citation omitted). When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the inappropriateness of the sentence. See Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.Super.2005). “Two requirements must be met before we will review this challenge on its merits.” McAfee, 849 A.2d at 274. “First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence.” Id. “Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code.” Id. That is, “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.” Tirado, 870 A.2d at 365.

We examine an appellant’s Rule 2119(f) statement to determine whether a substantial question exists.⁴ See id. “Our 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.

In the present case, Lamonda’s appellate brief contains the requisite 2119(f) concise statement, and, as such, is in technical compliance with the requirements to challenge the discretionary aspects of a sentence. In his Rule 2119(f) statement, Lamonda asserts that the trial court abused its discretion in applying an offense gravity score of 8 in calculating the guideline ranges, and that the trial court focused exclusively on the gravity of the offense in fashioning the sentence imposed. Appellant’s Brief, at 23-24. These two challenges present substantial questions for our review. See Commonwealth v. Archer, 722 A.2d 203, 210-211 (Pa.Super.1998) (en banc) (claim that sentencing court used incorrect offense gravity score raises a substantial question); Commonwealth v. Rossetti 863 A.2d 1185, 1194 (Pa.Super.2004) (failure of sentencing court to consider factors other than gravity of offense raises a substantial question).

Turning first to Lamonda’s contention that the trial court utilized an improper offense gravity score, we note that Lamon-da concedes that the Sentencing Guidelines establish that the appropriate offense gravity score for a conviction of homicide by vehicle, concurrent with DUI, is 8. See Appellant’s Brief, at 39. Therefore this argument rises or falls on Lamonda’s argument that the Sentencing Guidelines violate his equal protection rights. As we have already concluded that they do not, we likewise conclude that this argument merits no relief.

In his other challenge to the discretionary aspects of his sentence, Lamonda contends that the trial court imposed an unduly harsh sentence due to its failure to consider Lamonda’s history, character, and rehabilitative needs. However, Lamonda concedes that the sentences imposed fall within the guideline ranges. See Appellant’s Brief, at 44. We note that “where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super.2010) (internal citations omitted). Furthermore, the imposition of consecutive, rather than concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment. See id., at 171-172 (Pa.Super.2010).

Lamonda argues that the aggregate sentence imposed is “clearly unreasonable,” in light of his circumstances. However, we note that the trial court acknowledged La-monda’s honorable and “very positive” service in the United States Marine Corps. N.T., Sentencing, 7/22/2009, at 10; 19. The trial court also considered the pre-sentence report “in detail.” Id., at 18. Finally, the trial court noted Lamonda’s “current issues relative to depression.” Id. Given this record, we cannot conclude that the trial court failed to consider La-monda’s history or rehabilitative needs. The standard guideline sentence imposed is not “clearly unreasonable.” Accordingly, we conclude that Lamonda’s final issue on appeal merits no relief.

As we determine that none of Lamon-da’s issues on appeal merit relief, we affirm the judgment of sentence.

Judgment of sentence affirmed. Jurisdiction relinquished.

BENDER, J., files a dissenting opinion.

1 . Lamonda does not cite to any authority for this proposition.

2 . While Lamonda claims that his rights under the Pennsylvania Constitution are likewise violated, he does not provide an Edmunds analysis. Accordingly, we conclude that we may proceed to address this claim under the Constitution of the United States. See Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) (requiring an appellant to, inter alia, identify how the Constitution of the Commonwealth of Pennsylvania offers increased or different protections from the Constitution of the United States in order to preserve an argument that the state constitution offers more protection).

3 . While we cite to Pennsylvania State Court decisions, they are all decisions that rest upon the Constitution of the United States.

4 . Rule 2119 provides the following, in pertinent part:

(f) Discretionary aspects of sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

Pa.R.A.P., Rule 2119(f), 42 Pa. Cons.Stat.Ann.