Com. v. Frisch, T. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
THOMAS MICHAEL FRISCH, JR. :
:
Appellant : No. 1860 EDA 2022
Appeal from the Judgment of Sentence Entered June 9, 2022
In the Court of Common Pleas of Wayne County
Criminal Division at No(s): CP-64-CR-0000208-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
THOMAS MICHAEL FRISCH, JR. :
:
Appellant : No. 1861 EDA 2022
Appeal from the Judgment of Sentence Entered June 9, 2022
In the Court of Common Pleas of Wayne County
Criminal Division at No(s): CP-64-CR-0000210-2020
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED DECEMBER 29, 2023
Appellant, Thomas Michael Frisch, Jr., appeals from the judgment of
sentence entered in the Wayne County Court of Common Pleas, following his
guilty plea to two counts of homicide by motor vehicle, two counts of driving
under the influence (“DUI”), and one count of aggravated assault by motor
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vehicle.1 We affirm.
The relevant facts and procedural history of this case are as follows.
The Commonwealth charged Appellant with multiple offenses at docket No.
210-2020, in relation to a collision on April 8, 2020, during which Appellant’s
vehicle entered the opposing lane of traffic and struck a vehicle head on,
resulting in the deaths of the two occupants in the vehicle Appellant struck.
The responding officer noted that Appellant demonstrated multiple indicia of
impairment. Appellant was taken for a blood test but the facility was unable
to successfully draw blood from Appellant’s veins and a test could not be
completed. A urine screen conducted on April 11, 2020, approximately 30
hours after the accident, showed a positive result for methadone,
amphetamines, benzodiazepines, and THC.
At docket No. 208-2020, the Commonwealth charged Appellant with
multiple offenses in relation to another collision which occurred on May 22,
2020. On this occasion, Appellant was driving erratically, struck a guard rail,
and collided head on with a vehicle traveling in the opposing lane of traffic,
resulting in serious injuries to the driver of the other vehicle. The responding
police officer noted that Appellant displayed several signs of impairment.
Appellant submitted to a blood test, which showed the presence of fentanyl,
norfentayl, ketamine, norketamine, trazodone, THC, methadone, and EDDP,
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1 75 Pa.C.S.A. §§ 3732(a), 3802(d)(2), and 3732.1(a), respectively.
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the metabolite of methadone.
On May 3, 2022, Appellant pled guilty to aggravated assault by motor
vehicle and DUI at docket No. 208-2020, and two counts of homicide by motor
vehicle and one count of DUI at docket No. 210-2020. Although the
Commonwealth agreed to drop certain charges in exchange for the plea, there
was no agreement as to sentencing. On June 9, 2022, the court imposed
sentences in the aggravated range to be served consecutively, resulting in an
aggregate sentence of 111 months to 312 months’ incarceration.2 Appellant
filed a timely post-sentence motion, which the court denied on June 17, 2022.
On July 15, 2022, Appellant filed a timely notice of appeal at each docket. On
July 20, 2022, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and Appellant complied on
August 10, 2022. On October 28, 2022, Appellant filed a motion in this Court
to consolidate the appeals, which this Court granted on November 1, 2022.
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2 For Appellant’s homicide by vehicle convictions, the court utilized an offense
gravity score (“OGS”) of 8 based on Appellant’s DUI conviction arising from
the same criminal incident. This OGS is higher than a conviction for homicide
by vehicle, without a contemporaneous DUI conviction. See 204 Pa.Code
303.15 (providing that OGS for homicide by vehicle where DUI conviction also
results from criminal incident is 8; whereas, homicide by vehicle with no
additional factors present is 6). Likewise, for Appellant’s aggravated assault
by vehicle conviction, the court utilized an OGS of 7 based on Appellant’s DUI
conviction arising from the same criminal incident, which is higher than the
OGS for aggravated assault by vehicle without a contemporaneous DUI
conviction. See id. (providing that OGS for aggravated assault by vehicle
where DUI conviction also results from criminal incident is 7; whereas,
aggravated assault with no additional factors present is 5).
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Appellant raises the following issues for our review:
1. Is the enhanced sentence imposed on the conviction for
homicide by vehicle and aggravated assault by vehicle
illegal?
2. Did the trial court abuse its discretion by imposing
manifestly excessive sentences, and disproportionate to the
circumstances, both individually and in the aggregate,
placed at the highest level of the aggravated range of the
sentencing guidelines, by failing to consider the mitigating
circumstances and analyze or consider the rehabilitative
needs of [Appellant], impact upon the community and actual
need for the protection of the public under 42 Pa.C.S.A. §
9721(b) of the Pennsylvania Sentencing Code and by
disregarding or failing to consider [Appellant’s]
characteristics including his age, serious addiction and
mental health issues, acceptance of responsibility, and
expression of remorse?
3. Did the trial court abuse its discretion and impose a
manifestly excessive sentence, in each case, by running the
sentences imposed for DUI consecutive to the offenses of
homicide by vehicle and aggravated assault by vehicle?
(Appellant’s Brief at 6).
Preliminarily, we note that “[i]ssues not raised in the trial court are
waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
Additionally, issues not raised in a Rule 1925(b) concise statement of errors
will be deemed waived. Commonwealth v. Castillo, 585 Pa. 395, 403, 888
A.2d 775, 780 (2005). Regarding preservation of challenges to a sentence,
our Supreme Court has held:
Where a claim concerns the sentencing court’s exercise of
discretion in fashioning a sentence, the defendant must
preserve and present the claim at trial by way of a
contemporaneous objection and/or a post-trial motion and
on appeal through the process provided by 42 Pa.C.S. §
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9781(b) and Pa.R.A.P. 2119(f). Where a claim concerns the
sentencing court’s authority to impose a sentence, it is
reviewable as of right on direct appeal, without regard to
preservation of the claim. [A] determination that a claim
implicates the legality of a sentence ... operates to revive a
claim otherwise insufficiently preserved below, and is
reviewable by this Court on permissive appeal.
Commonwealth v. Weir, 662 Pa. 402, 417, 239 A.3d 25, 34 (2020) (internal
citations omitted).
In determining whether a claim concerns the legality of the sentence or
the discretionary aspects of the sentence, our Supreme Court has stated:
[T]he inquiry is whether, assuming the appellant’s claim
prevails, the result would be that the trial court lacked
authority to impose the sentence at issue. If so, then the
appellant’s challenge implicates the legality of his sentence.
Conversely, if the challenge is not to the existence of certain
authority but to the exercise of that authority, then the
challenge goes to the discretionary aspects of a sentence,
not to its legality.
Commonwealth v. Prinkey, ___ Pa. ___, ___, 277 A.3d 554, 563-64
(2022). The Court further outlined four broad categories of challenges that
implicate the legality of the sentence:
First, a claim that a sentence was imposed pursuant to a
facially unconstitutional sentencing statute is a legality
challenge because, if the claim prevails, the sentence was
imposed under statutory authority that never lawfully
existed….
The second category encompasses allegations that a
sentence was imposed without the fulfillment of statutory
preconditions to the court’s sentencing authority…. Here
too, a successful challenge means that the court issued a
sentence that it lacked the statutory authority to impose. In
other words, if the sentencing statute at issue conditions the
court’s authority to impose a sanction upon the existence of
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attendant circumstances, and if those circumstances were
not present, then the court lacked statutory authority to
impose the sentence, even though the unfulfilled conditions
may not raise an issue of constitutional dimension….
The third category of legality challenges encompasses those
claims that allege a violation of a substantive restriction that
the Constitution places upon a court’s power to apply the
statutory sentence to the defendant. Here, the linchpin is
that there is a constitutional barrier to the court’s ability to
wield the sentencing power granted by a facially
constitutional statute, not that the trial court exercised its
statutory power in a way that violated the Constitution. If
either the United States Constitution or the Pennsylvania
Constitution places a restriction upon the power of a court
to impose a particular sentence in certain circumstances,
and if the appellant’s claim is that those circumstances exist
in his or her case, then the challenge necessarily sounds in
legality….
Finally, a sentence is illegal where the statutory support for
the underlying conviction is void ab initio…. This fourth class
of legality challenges is distinct from the others inasmuch as
it implicates the validity of the conviction.
Id. at 562-63 (internal citations omitted).
Here, Appellant concedes that he raised his first issue for the first time
on appeal. Nevertheless, Appellant asserts that this issue is not waived
because his claim involves the legality of the sentence. Specifically, Appellant
argues that his sentences for homicide by vehicle and aggravated assault by
vehicle are illegal because the court relied on an OGS which was increased
because of Appellant’s contemporaneous DUI conviction pursuant to 204
Pa.Code 303.15. Nevertheless, Appellant insists that under 75 Pa.C.S.A. §
3732(b) and 3732.1(b), DUI is not listed as an offense for which the
Sentencing Commission is permitted to impose a sentencing enhancement
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when that offense is committed in the same criminal incident as homicide by
vehicle or aggravated assault by vehicle.3 As such, Appellant contends that
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3 See 75 Pa.C.S.A. § 3732, which defines the offense of homicide by vehicle,
and provides in relevant part:
(b) Sentencing.─
(1) In addition to any other penalty provided by law, a
person convicted of a violation of subsection (a) may be
sentenced to an additional term not to exceed five years’
confinement if at trial the prosecution proves beyond a
reasonable doubt that the offense occurred in an active
work zone.
(1.1) In addition to any other penalty provided by law, a
person convicted of a violation of subsection (a) who is
also convicted of a violation of section 1501 (relating to
drivers required to be licensed), 1543 (relating to driving
while operating privilege is suspended or revoked), 3316
(relating to prohibiting text-based communications),
3325 (relating to duty of driver on approach of
emergency vehicle) or 3327 (relating to duty of driver in
emergency response areas and in relation to disabled
vehicles) may be sentenced to an additional term not to
exceed five years’ confinement.
(2) The prosecution must indicate intent to proceed
under this section in the indictment or information which
commences the prosecution.
(3) The Pennsylvania Commission on Sentencing,
pursuant to 42 Pa.C.S. § 2154 (relating to adoption of
guidelines for sentencing), shall provide for a sentencing
enhancement for an offense under this section when the
violation occurred in an active work zone or the individual
was also convicted of a violation of section 1501, 1543,
3316, 3325 or 3327.
75 Pa.C.S.A. § 3732(b).
(Footnote Continued Next Page)
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the Sentencing Commission exceeded its limited authority by including a DUI
conviction as an additional factor which increases the OGS for these offenses.
Appellant asserts that this claim implicates the legality of the sentence
because it falls into the third category set forth in Prinkey. We disagree.
This Court recently considered a similar issue in Commonwealth v.
Mont, 266 A.3d 646 (Pa.Super. filed October 22, 2021) (unpublished
memorandum),4 appeal denied, ___ Pa. ___, 278 A.3d 300 (2022). In Mont,
the appellant claimed the Sentencing Commission exceeded its authority by
assigning a disproportionately higher OGS for the offense of possessing a gun
with an altered manufacturer’s number than that for the offense of altering or
obliterating marks of identification. On appeal, this Court analyzed whether
the appellant’s claim implicated the legality of his sentence. This Court noted
that claims that the sentencing court used the incorrect OGS involve the
discretionary aspects of sentencing and must be properly preserved. This
Court acknowledged that the appellant was challenging the Sentencing
Commission’s promulgation of the guidelines rather than the sentencing
court’s application of the guidelines but found this distinction to be negligible.
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This language is mirrored nearly verbatim in 75 Pa.C.S.A. § 3732.1, which
defines the offense of aggravated assault by vehicle, except that it states that
a defendant may be sentenced to an additional term not to exceed two years’
confinement. See 75 Pa.C.S.A. § 3732.1(b).
4 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions filed in
this Court after May 1, 2019 for their persuasive value).
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The appellant’s claim, while styled as a challenge to the legality of the
sentence, was essentially just an argument that the court should have used a
lower OGS for his crimes. The Mont Court concluded that the appellant’s
claim was more akin to a question involving the application of the sentencing
guidelines rather than a challenge to the sentencing court’s authority to
impose the sentence. As such, the appellant’s claim did not implicate the
legality of the sentence and was waived for failure to preserve the issue before
the trial court.
As in Mont, Appellant claims that his sentence is illegal because the
Sentencing Commission exceeded its authority in promulgating the OGS for
his convictions. Although styled as a challenge to the legality of the sentence,
Appellant is essentially arguing that the OGS for his convictions should have
been lower, which does not bring into question the court’s authority to impose
the sentence. See id. See also Prinkey, supra. Thus, Appellant has failed
to establish that his first claim implicates the legality of his sentence, and it is
waived for failure to preserve the issue at the trial court level.5 See Pa.R.A.P.
302(a); Castillo, supra.In his second and third issues combined, Appellant claims the court
imposed a manifestly excessive sentence by sentencing Appellant to the
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5 Moreover, we note that the court did not apply a five-year sentencing
enhancement under Section 3732(b) or 3732.1(b). Rather, the court
increased the OGS for Appellant’s crimes of homicide by vehicle and
aggravated assault by vehicle under 204 Pa.Code 303.15.
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highest end of the aggravated range of the sentencing guidelines for each of
the offenses and ordering that they be served consecutively. Appellant asserts
that the court based its decision almost exclusively on its perception that
Appellant lacked remorse due to Facebook posts that Appellant made, even
though the posts were from two years prior to sentencing when Appellant was
still under the influence of his addiction. Appellant contends that the court
failed to consider Appellant’s actions since he made the Facebook posts,
including accepting full responsibility for his offenses, taking steps to control
his addiction, writing several letters of apology to the families of the victims,
and cooperating with the victims’ families in a civil litigation.
Appellant also asserts that the court further ignored other mitigating
factors such as Appellant’s age, personal characteristics, and struggle to
overcome cancer and addiction throughout his life. Appellant insists that the
court’s only aim was to punish Appellant without giving due consideration to
Appellant’s rehabilitative needs. Appellant further argues that the DUI
sentences should not have been imposed consecutive to the homicide by
vehicle and aggravated assault by vehicle charges because the DUI charges
stemmed from the same conduct as the greater offenses and the OGS’s for
the greater offenses were already increased by the related DUI convictions.6
Appellant maintains that the sentence imposed does not comport with
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6Appellant concedes that DUI does not merge with homicide by vehicle or
aggravated assault by vehicle. (See Appellant’s Brief at 49 n.9).
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confinement necessary and consistent with the goals of the Sentencing Code,
and what was necessary to protect the public, reflect the gravity of the
offense, and Appellant’s rehabilitative needs. Appellant concludes that the
court abused its sentencing discretion, and this Court should vacate the
judgment of sentence. We disagree.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174
L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary aspects of
sentencing issue:
[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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (quoting Commonwealth v.
Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)).
When appealing the discretionary aspects of a sentence, an appellant
must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
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Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Phillips, supra at 112(emphasis in original) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). “A substantial question exists only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015)
(en banc) (quoting Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super.
2011)).
“[A]n excessive sentence claim—in conjunction with an assertion that
the court failed to consider mitigating factors—raises a substantial question.”
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014), appeal
denied, 629 Pa. 636, 105 A.3d 736 (2014). See also Commonwealth v.
Trimble, 615 A.2d 48 (Pa.Super. 1992) (holding defendant’s claim that court
failed to consider factors set forth under Section 9721(b) and focused solely
on seriousness of defendant’s offense raised substantial question).
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Additionally:
Pennsylvania law affords the sentencing court discretion to
impose [a] sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences
already imposed. Any challenge to the exercise of this
discretion does not raise a substantial question. In fact, this
Court has recognized 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.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013), appeal
denied, 621 Pa. 692, 77 A.3d 1258 (2013) (internal citations and quotation
marks omitted). See also Commonwealth v. Hoag, 665 A.2d 1212, 1214
(Pa.Super. 1995) (stating appellant is not entitled to “volume discount” for his
crimes by having all sentences run concurrently).
Assuming an appellant can invoke our jurisdiction to review the claim,
this Court reviews discretionary sentencing challenges based on the following
standard:
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. An abuse of
discretion is more than just an error in judgment and, on
appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, bias or ill-will.
Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting
Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).
“[A] court is required to consider the particular circumstances of the
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offense and the character of the defendant.” Commonwealth v. Griffin, 804
A.2d 1, 10 (Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S. Ct. 2984,
162 L.Ed.2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal characteristics and his
potential for rehabilitation.” Id. If the sentencing court has the benefit of a
[pre-sentence investigation (“PSI”)] report, the law presumes the court was
aware of the relevant information regarding the defendant’s character and
weighed those considerations along with any mitigating factors.
Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005).
When considering the propriety of imposing an aggravated range
sentence, this Court has observed:
[T]he guidelines were implemented to create greater
consistency and rationality in sentencing. The guidelines
accomplish the above purposes by providing a normal for
comparison, i.e., the standard range of punishment, for the
panoply of crimes found in the crimes code and by providing
a scale of progressively greater punishment as the gravity
of the offense increases….
The provision of a “norm” also strongly implies that
deviation from the norm should be correlated with facts
about the crime that also deviate from the norm for the
offense, or facts relating to the offender’s character or
criminal history that deviates from the norm and must be
regarded as not within the guidelines contemplation. Given
this predicate, simply indicating that an offense is a serious,
heinous or grave offense misplaces the proper focus. The
focus should not be upon the seriousness, heinousness or
egregiousness of the offense generally speaking, but, rather
upon how the present case deviates from what might be
regarded as a “typical” or “normal” case of the offense under
consideration.
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An aggravated range sentence … will thus be justified to the
extent that the individual circumstances of [an appellant’s]
case are atypical of the crime for which [he] was convicted,
such that a more severe punishment is appropriate.
Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.Super. 2006) (internal
citation omitted).
Instantly, Appellant’s assertion that the sentence imposed was
manifestly excessive in conjunction with his claim that the court failed to weigh
his rehabilitative needs and/or consider mitigating factors raises a substantial
question. See Raven, supra. Likewise, his sentencing claim that the court
failed to consider the factors set forth under Section 9721(b) and focused
solely on the seriousness of his offenses raises a substantial question. See
Trimble, supra. Accordingly, we proceed to address the merits of these
sentencing challenges.
Here, the court had the benefit of a PSI report, defense counsel’s
arguments, statements from Appellant and his mother, letters written on
Appellant’s behalf, and a mental health evaluation of Appellant. Thus, we can
presume that the court was fully aware of and considered mitigating factors
such as Appellant’s background, history of cancer and substance abuse, and
his more recent progress in addressing his addiction. See Tirado, supra.In its sentencing order, the court explained:
The … sentence is in the aggravated range due to the court’s
beliefs and findings in [Appellant]’s [PSI report], further due
to [Appellant] showing no remorse evident by his Facebook
posting, repeat pattern of drug induced criminal behavior,
committing these offenses while pending disposition in
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Lackawanna County, prior convictions that are not
calculated in the prior record score, and a lesser sentence
would depreciate the seriousness of the crimes.
(Sentencing Order, filed 6/9/22, at 3).
The court noted that Appellant already had a DUI charge pending when
he caused the two accidents in this case, which resulted in the deaths of two
individuals and the serious injury of another. The court further noted that
immediately following the first accident involving the deceased victims,
Appellant made a Facebook post blaming the victims for the collision,
demonstrating a lack of accountability and remorse for his actions even in the
face of such serious consequences. Further demonstrating Appellant’s lack of
accountability, Appellant continued to engage in the same criminal conduct
after the first accident, causing another accident resulting in serious injuries
to another. At sentencing, the court recognized that Appellant’s addiction
played a big part in his criminal actions but noted that Appellant’s history and
actions in this case demonstrated a lack of commitment to recovery and
showed that Appellant poses a risk to the community. The court further
acknowledged Appellant’s subsequent progress with recovery, reviewed the
letters of remorse Appellant sent to the victims and their families, and
considered Appellant’s rehabilitative needs. Ultimately, however, the court
determined that the circumstances of this case warranted a sentence in the
aggravated range. Although Appellant claims the court should not have
considered the Facebook posts which Appellant made while under the
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influence, the record shows the court also considered Appellant’s later
progress with recovery. On this record, we discern no abuse of discretion in
court’s determination that a sentence in the aggravated range was
appropriate. See Fullin, supra; McNabb, supra. Accordingly, Appellant is
not entitled to relief on his challenge to the discretionary aspects of
sentencing, and we affirm.
Judgment of sentence affirmed.
Date: 12/29/2023
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