Com. v. Smith, C. ( 2023 )

J-S36004-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES SMITH, :
:
Appellant : No. 2985 EDA 2022
Appeal from the Judgment of Sentence Entered August 19, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002341-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES SMITH, :
:
Appellant : No. 2986 EDA 2022
Appeal from the Judgment of Sentence Entered August 19, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002342-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES SMITH, :
:
Appellant : No. 2987 EDA 2022
Appeal from the Judgment of Sentence Entered August 19, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002343-2021
BEFORE: BOWES, J., NICHOLS, J., and KING, J.
J-S36004-23
MEMORANDUM BY BOWES, J.: FILED OCTOBER 11, 2023
Charles Smith appeals nunc pro tunc from his aggregate judgment of
sentence of twenty to fifty years of imprisonment, followed by nineteen years
of probation, imposed after he was convicted of third-degree murder, third-
degree murder of an unborn child, driving under the influence (“DUI”),
homicide by vehicle while DUI, homicide by vehicle, aggravated assault by
vehicle, and recklessly endangering another person. We affirm.
The trial court offered the following summary of the evidence
underpinning Appellant’s convictions:
[O]n May 13, 2020, at approximately 9:40 p.m., Anthony
O’Connor was driving his silver Nissan SUV on Whitaker Avenue,
with his girlfriend, Kimberly Hartz in the passenger seat. They
were expecting their first child—[Ms. Hartz] was five months
pregnant. Appellant was driving his gold Acura on Whitaker
Avenue as well, with his girlfriend, Sabrina Herbert, in the
passenger seat. [Appellant] was smoking a PCP cigarette.
Appellant started to drive faster, and Ms. Herbert told him to slow
down. Instead, [Appellant] sped up even more. Appellant then
started tailgating the car in front of him then, abruptly swerving
into the next lane pas[t] that vehicle. [Appellant] struck the rear
of [Mr.] O’Connor’s car with such force that [it] hit a series of
parked cars, ending up with the passenger side of [Mr.]
O’Connor’s vehicle wrapped around a PECO pole. [Appellant]’s
vehicle spun out of control, stopping about a half block away. Mr.
O’Connor died instantly. [Ms.] Hartz suffered a number of serious
injuries, including the loss of her right leg, a fractured pelvis,
fractures along her spine and face. Ms. Hartz’s uterus had to be
removed as well.
Nicole Guinan, an off-duty police officer[,] was driving along
Whitaker Avenue at the time of the crash. When she looked in
her rear-view mirror, she saw [Appellant]’s gold Acura spinning
out of control. Officer Guinan exited her vehicle to render
assistance to the occupants of the gold Acura, helping [Appellant]
out of the driver’s seat of the car. She noticed [Appellant]’s
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demeanor, the blank stare on his face, completely dazed, foaming
at the mouth, huffing and puffing, agitated—so much so that she
stepped away from him out of caution and fear. [Appellant] was
walking around with his pants at his ankles. On-duty police
officers arrived and placed him under arrest. The toxicology
report of blood taken from the defendant that evening shows
cocaine, marijuana and more than 80 nanograms of PCP in
[A]ppellant’s blood. [Toxicology also revealed that Mr. O’Connor
had fentanyl in his blood at his time of death. Nonetheless, a]n
accident reconstructionist laid full blame for the accident upon
[Appellant].
Trial Court Opinion, 1/5/23, at 3-4 (cleaned up).
Appellant was tried at the above-captioned docket numbers and
convicted on June 10, 2022. Following a presentence investigation (“PSI”)
and a psychiatric evaluation, the trial court sentenced him to the aggregate
term indicated above. Appellant’s timely post-sentence motions were denied
without a hearing on August 30, 2022. Appellant did not initially file an appeal,
but his direct appeal rights were promptly reinstated through a Post Conviction
Relief Act petition. These timely nunc pro tunc appeals at each docket number
followed, and both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following questions for our determination:
I. Whether . . . Appellant’s convictions are against the weight
of the evidence where the accident was investigated
inadequately by police officers not trained in homicide
investigations, where the physical evidence demonstrated
that the accident did not happen the way alleged by the
Commonwealth, where the decedent driver was intoxicated
with high levels of fentanyl and where the Appellant was not
a direct cause of death when the actions of the decedent
played an independent, important and overriding role in
bringing about his own death, the death of the unborn child
and the serious injury to his passenger?
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II. Whether the court abused its discretion at sentencing when
it sentenced. . . Appellant to an aggregate sentence of 20-
50 years plus 19 years of probation and where the court
failed to give the proper weight to the mitigating factors set
forth in the pre-sentence investigation report, the mental
health evaluation and by . . . Appellant’s allocution at the
sentencing hearing?
Appellant’s brief at 6 (cleaned up).
Appellant first contends that the verdicts are against the weight of the
evidence. The following law applies to our consideration of that claim:
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court. Appellate review of a weight claim is a
review of the exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the evidence.
Commonwealth v. Arias, 286 A.3d 341, 352 (Pa.Super. 2022) (cleaned up).
Accordingly, our task is to determine whether the trial court, in ruling on
Appellant’s weight challenge, “abused its discretion by reaching a manifestly
unreasonable judgment, misapplying the law, or basing its decision on
partiality, prejudice, bias, or ill-will.” Commonwealth v. Clay, 64 A.3d 1049,
1056 (Pa. 2013) (cleaned up).
The trial court explained its rejection of Appellant’s weight claim as
follows:
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Appellant contends that the decedent’s ingestion of fentanyl
was the direct cause of his death. The problem with his contention
is there is not a scintilla of evidence to substantiate this claim.
The decedent was driving northbound on Whitaker Avenue, when
the speeding, inebriated [Appellant] came up from behind and
struck the decedent’s car from the rear. Nothing the decedent did
caused the accident, nor his death or that of his unborn child. This
court applied the appropriate standards when reviewing
[Appellant]’s claim that the verdict was against the weight of the
evidence. Having reviewed the entire record, including a thorough
reading of the trial transcripts and admitted exhibits, this court
concludes that the verdict was not so contrary to the evidence as
to shock one’s sense of justice, nor was it so tenuous, vague and
uncertain that it shocks the conscience of the court. To the
contrary, the evidence in this case was compelling and substantial,
and strongly supported the verdict.
Trial Court Opinion, 1/5/23, at 13-14.
Appellant argues that the verdict is shocking “for a variety of reasons.”
Appellant’s brief at 18. He highlights what he perceives as inadequacies in
the investigation of the crime, avers that “the crash did not happen as the
Commonwealth alleged,” and proffers an alternate accident reconstruction in
which Mr. O’Connor, under the influence of fentanyl, initiated the collision. Id.
at 19. Appellant further asserts that the Commonwealth’s expert failed to
relate Appellant’s intoxication, confirmed by a blood draw hours after the
accident, back to the time of the collision. Id. Overall, Appellant’s argument
is that “[t]he verdict is shocking because the jury disregarded evidence that
the decedent’s intoxication and recklessness were the actual cause[s] of the
crash, and not that of . . . Appellant.” Id.
Our examination of the certified record reveals that the trial court did
not deny Appellant’s weight claim by “reaching a manifestly unreasonable
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judgment, misapplying the law, or basing its decision on partiality, prejudice,
bias, or ill-will.” Clay, supra at 1056. Rather, Appellant asks this Court to
make different credibility determinations and weigh the evidence more
favorably to him than the jury did, which is in contravention of our standard
of review. Consequently, Appellant’s weight claim fails.
Appellant remaining challenge is to the discretionary aspects of his
sentence. Initially, the following legal principles govern our consideration of
this claim:
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect [pursuant to] 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.
Commonwealth v. Lucky, 229 A.3d 657, 663–64 (Pa.Super. 2020) (cleaned
up).
Appellant filed a timely notice of appeal, preserved his issues in a timely
post-sentence motion, and included a Rule 2119(f) statement in his brief. In
the statement, Appellant asserts that his aggregate sentence is excessive and
manifestly unreasonable under the circumstances, and that the trial court
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“failed to give due consideration to . . . Appellant’s mitigating circumstances.”
Appellant’s brief at 16.
Appellant’s claim that the trial court did not adequately consider the
mitigating circumstances does not raise a substantial question. See, e.g.,
Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa.Super. 2018) (collecting
cases). However, his contention that the aggregate sentence is manifestly
unreasonable does raise a substantial question for our review. See, e.g.,
Commonwealth v. Williams, 69 A.3d 735, 740 (Pa.Super. 2013).
Therefore, we turn to the merits of Appellant’s claim, mindful of the
following. “When reviewing sentencing matters, this Court must accord the
sentencing court great weight as it is in the best position to view the
defendant’s character, displays of remorse, defiance or indifference, and the
overall effect and nature of the crime.” Commonwealth v. Edwards, 194
A.3d 625, 637 (Pa.Super. 2018) (cleaned up). “We cannot re-weigh the
sentencing factors and impose our judgment in the place of the sentencing
court.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009).
Instead, we review the trial court’s sentencing determination for an abuse of
discretion.
In this context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored or
misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
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While broad, “the trial court’s discretion is not unfettered.”
Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa.Super. 2011). The
sentence imposed “should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” 42 Pa.C.S. § 9721(b). “Where the sentencing court had
the benefit of a [PSI] we can assume the sentencing court was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Hill, 210 A.3d 1104, 1117 (Pa.Super. 2019) (cleaned up).
Here, as noted above, the trial court’s sentence was informed by a PSI
and a mental health evaluation, such that we presume that the court was
aware of all the pertinent information about Appellant’s history, character, and
condition, including his prior record score of five. The court considered the
sentencing guideline recommendations for the various offenses, including the
standard range minimum of sixteen to twenty years of incarceration for the
murder conviction. Upon review of this information, as well as “all of the
testimony and arguments of counsel,” the court “imposed a sentence within
the applicable guideline range[.]” Trial Court Opinion, 1/5/23, at 16.
Appellant argues that, given his age of forty-five at the time of
sentencing, the sentence is unduly harsh because it “amounts to a de facto
life sentence where the Legislature did not intend to impose a life sentence
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for defendants similarly situated to . . . Appellant.” Appellant’s brief at 20.
He maintains that “[t]he sentence is manifestly unreasonable because the
sentencing court did not give due weight to the victim’s role in bringing about
the crash.” Id. at 21. Therefore, Appellant asserts that “he should be
resentenced consistent with the norms underlying the Sentencing Code.” Id.
As with his first claim, Appellant ignores our standard of review and
instead asks us to re-weigh sentencing factors in his favor. He has pointed to
nothing in the record to suggest “that the sentencing court ignored or
misapplied the law, exercised its judgment for reasons of partiality, prejudice,
bias or ill will, or arrived at a manifestly unreasonable decision” in imposing
standard range sentences for his many offenses that resulted in two deaths
and the horrific injuries of the survivor. Antidormi, supra at 760. Indeed,
his contention that middle-aged offenders cannot receive standard-range
sentences for third-degree murder because they amount to life sentences is
preposterous.1 Furthermore, the court imposed a substantially shorter
sentence than the forty to eighty years sought by the Commonwealth on the
basis that Appellant not only showed no remorse for his actions, but blamed
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1 Moreover, as the Commonwealth notes, Appellant will be eligible for parole
at age sixty-five, which is an age this Court has held does not amount to a life
sentence for juveniles who are convicted of murder. See Commonwealth’s
brief at 14 (citing Commonwealth v. Anderson, 224 A.3d 40, 47 (Pa.Super.
2019) (holding no de facto life sentence was imposed for offender who will be
eligible for parole at age sixty-seven)).
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his victims for their injuries, stating “it’s not my fault they didn’t have their
seatbelts on.” N.T. Sentencing, 8/19/22, at 16.
Appellant has presented no basis for us to conclude that the trial court’s
sentence is the product of an abuse of its considerable discretion. Accordingly,
we have no cause to disturb it.
Judgment of sentence affirmed.
Date: October 11, 2023
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