Com. v. Diehl, M.

J-S14041-16
2016 Pa. Super. 93
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW SCOTT DIEHL,
Appellant No. 258 MDA 2015
Appeal from the Judgment of Sentence December 23, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003909-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED APRIL 28, 2016
Appellant Matthew Scott Diehl (“Appellant”) appeals from the
judgment of sentence of 9½ to 19 years’ imprisonment after a jury
convicted him of Homicide by Vehicle while DUI, Homicide by Vehicle,
Accidents Involving Death or Personal Injury, DUI General Impairment 3rd,
Duty of Driver in Emergency Response Area, and DUI High Rate 3 rd.1
Appellant was found not guilty of Third Degree Murder.2 He contends the
trial court erred when it allowed the Commonwealth to introduce evidence of
his 2005 DUI conviction and alcohol awareness classes as evidence of malice
in support of the Third Degree Murder charge, and he argues that the
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1
75 Pa.C.S.A. §§ 3735, 3732, 3742, 3802(a), 3327, 3802(b), respectively.
2
18 Pa.C.S.A. § 2502(c).
*Former Justice specially assigned to the Superior Court.
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imposition of consecutive sentences represented an abuse of sentencing
discretion. We affirm.
The following evidence was adduced at Appellant’s criminal trial. At
approximately 12:40 a.m. on April 27, 2013, Fire Chief Rodney Miller of the
Loganville Fire Department had begun closing the southbound lanes of I-83
between the Glen Rock and Shrewsbury exits to allow for an emergency life-
flight helicopter landing at the scene of a motor vehicle collision further
south on the highway. In an effort to divert traffic, Chief Miller parked his
Fire Chief’s pick-up truck diagonally across both lanes. The truck was
equipped with a 360-degree oscillating overhead emergency light on the roof
in compliance with Motor Vehicle Code requirements for emergency response
vehicles, and Chief Miller had activated side marking lights, rear taillights,
and the oscillating red lights on the roof. N.T. 11/17/14 at 328, 567-68.
Chief Miller was also wearing a reflective turncoat as he prepared the
roadblock. Id. at 56.
Matthew Hopkins was driving southbound on the interstate that night.
As he crested a hill about one-half mile before the Glen Rock exit, he could
see flashing lights near the exit. Assuming there was a problem near the
right shoulder, he first moved from the right lane into the left lane, but as he
drew within about 300 yards he was able to see a large pickup truck with red
flashing lights positioned across the left lane and partially into the right lane.
Id. at 176-77, 206-07.
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At that point, Hopkins decelerated from his approximately 70 miles-
per-hour rate of travel and turned on his four-way flashers as he tried to
ascertain the situation ahead. Id. at 175-77. By the time he was about 50
yards away, Hopkins was coasting at five to ten miles per hour and could
clearly see the large pick-up truck with the red flashing lights on the roof.
He also had no difficulty seeing that a person was coming out from behind
the pick-up and heading toward the right shoulder of the highway. Id. at
178-79. In describing visibility at the scene, he noted both an absence of
any glare from oncoming traffic, as there were no vehicles traveling on
northbound Interstate 83 at the moment, and the presence of a full moon.
Id. at 200-01.
At the time he saw a person attempting to cross the right lane,
Hopkins also saw that an SUV had passed him to the right at a speed he
estimated to be 50 miles per hour. Id. at 175. As the SUV went by the Fire
Chief’s truck, the right side of its front end struck the person at the shoulder
of the highway, Hopkins said, propelling him some 20 feet high in the air
before he landed at the side of the highway. The SUV continued driving, and
Hopkins immediately pulled his vehicle to the side of the road and called 911
for emergency assistance.
Volunteer Firefighter Zach Immel of the Glen Rock Fire Department
had responded to the motor vehicle collision further southbound on I-83 and
was assigned the task of traffic control at that accident site. Id. at 226-27.
Standing near a rescue truck used to stop traffic, Immel noticed a white
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Chevy Trailblazer with heavy front-end damage, including leaking, smoking,
and “spidering” of the windshield. Id. at 227, 229. He first asked the
driver, Appellant, if he was okay and then asked what happened. Appellant
replied that he had hit a deer and was going to go home and call his
insurance company in the morning. Id. at 228. To Immel, Appellant looked
confident in telling his story and asking when the highway would open again.
Id. at 231.
By this time, two or three other drivers had stopped behind Appellant’s
car, and they informed Immel that a pedestrian had been struck back at the
Glen Rock exit and was lying on the side of the road. Id. at 233. Immel
advised his assistant chief of the news and they sent out a dispatch for the
state police to investigate Appellant’s SUV. Id. at 235. When Immel
subsequently returned to Appellant’s car and advised him of the other
drivers’ report, he noticed a sudden change in Appellant’s demeanor.
Appellant now looked scared, asked whether he could have hit the
pedestrian, and kept repeating that he thought he had hit a deer. Id. at
234. Appellant nervously got out of his car and lit a cigarette while pacing
back and forth. Id. at 236.
Pennsylvania State Trooper Jonathan Confer had been dispatched in
response to Matthew Hopkins’ 911 call and was already at the accident
scene involving Chief Miller when he received another dispatch informing
that a suspect in the Miller accident was stopped at the accident scene two
miles south on I-83. Id. at 268. Trooper Confer arrived several minutes
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later and asked Appellant how he damaged his SUV. Appellant explained
that he was traveling in the left lane I-83 South and moved into the right
lane after the car ahead of him activated its four-way flashers. Id. at 271.
As he entered the right lane very near the Glen Rock exit he thought he
struck a deer, although he told Trooper Confer he was not sure now. Id.
He related that the deer came from the left side, crossed over in front of his
vehicle, and then struck it. Id. When the trooper asked why he did not
stop, Appellant gave no definitive answer. Id. at 275. Appellant also told
the trooper that he was going about 55 miles an hour at the time. Id.3
During the interview, Trooper Confer detected the odor of alcohol on
Appellant, as well as bloodshot and glassy eyes. Id. at 276-77. Appellant
admitted to drinking three beers and a shot of liquor earlier that night. Id.
at 277. The trooper administered field sobriety tests including a walking
phase, in which the trooper recorded that Appellant started too soon and
made an improper turn but had otherwise performed cleanly, and a one-leg
stand, in which no signs of impairment were recorded. Id. at 302-03. In
another section of the test sheet, Trooper Confer had recorded that
Appellant was crying at some point during the test. Id. at 304. Yet, under
the “attitude” section of the test sheet, the trooper checked “other” because,
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3
The trooper suspected Appellant was simply tailoring his answer to what he
believed the posted speed limit to be. In fact, the trooper explained at trial,
the posted limit on that part of Interstate 83 South was 65 miles per hour.
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in his opinion, Appellant did not “seem to be too concerned with the incident
itself, as far as learning that he possibly hit someone. He didn’t seem like
he was too concerned about it.” Id. at 314.
Trooper Confer arrested Appellant and Pennsylvania State Police
Troopers Benjamin Eaken and Jordan Geisler transported him for a blood
draw, which was performed at 1:56 a.m. Id. at 278, 396-98. The test
revealed a .118 BAC. Id. at 514. After Appellant returned to the York
Barracks, Pennsylvania State Trooper Jeffrey Gotwals of the Criminal
Investigation Unit interviewed him at about 2:43 a.m. Id. at 472-73, 494.
Trooper Gotwals initially observed Appellant to be very upset and crying, and
he believed Appellant was under the influence of alcohol, although not to the
degree where it impaired his ability to understand his Miranda rights, which
Appellant elected to waive. Id. at 474, 495. Using a diagram of the
highway, Appellant indicated to Trooper Gotwals how he moved into the
right lane because the car in front of him had activated its flashers and
parked in the left lane. Id. at 481-82. It was then that he struck a deer
running across the highway, Appellant said. Id. at 482. At no point did
Appellant state that he saw the Fire Chief’s truck. Id.
In Trooper Gotwals’ view, Appellant became increasingly upset as the
interview progressed and expressed concern about what had happened to
“the gentleman,” asking if there was any word on his condition. Id. at 499.
It was at this point Appellant acknowledged that he hit a person rather than
a deer, although Trooper Gotwals conceded that the admission could have
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resulted from everyone telling him he had hit a person. Id. at 500. In this
respect, the trooper also confirmed that Appellant never went so far as to
admit he had been lying about the deer all along. Id.
Forensic investigation of the accident scene and Appellant’s SUV
confirmed that Appellant struck Chief Miller. Id. at 569. To have done so
without also striking the chief’s truck, which had been parked in such a way
as to extend about 5.5 feet into the right lane, would have required
Appellant to drive his right-side tires about two feet across the fog line and
onto the berm of the highway, investigators deduced. It followed that Chief
Miller had reached the berm of the road before he was hit. Id. at 610-11.
Upon impact, Chief Miller’s body travelled over a 133-foot distance, during
which he struck a metal pole at the base of the exit sign with enough force
to cause his flannel shirt and reflective turncoat to come off. Id. at 577-78,
613. Based on this distance, investigators calculated Appellant’s speed at
anywhere from 41 to 59 miles per hour at the moment of impact. Id. at
620. There was no evidence of tire marks at the scene indicating braking or
hard swerving on Appellant’s part. Id. at 614-15.
A forensic engineer with expertise in collision reconstruction testified
while showing a video taken from what would have been Appellant’s
perspective as he approached Chief Miller’s roadblock. Id. at 675-707.
Operating under the same conditions that existed on the night in question,
the expert indicated he was able to see the overhead oscillating red light
from the crest of the highway about 3,000 feet away. Id. at 700. At about
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2,000 feet away, he could see the light sat atop a pick-up truck, and he was
also able to discern the truck’s side marker lights, headlights, taillights, and
lights flashing on the concrete wall barricade. Id. From 300 feet, he could
see the structure of the truck. Id. The expert also found that the
topography of the highway would not have degraded Appellant’s visibility.
Id. at 701-02. He opined, therefore, that a reasonable driver traveling
south at the point of the emergency response zone where Chief Miller’s truck
was parked would have seen enough information well in advance to know
the truck was across the highway, activate high beams, slow down, and stop
to find out whether it was safe to proceed. Id. at 707.
Prior to trial, the Commonwealth filed a Motion in Limine on May 2,
2014, seeking to introduce evidence of Appellant’s 2005 and 2007 DUI
convictions and alcohol awareness education classes. The trial court
provides an apt summary of its ruling allowing evidence of the 2005 DUI
conviction and classes:
We held a hearing on this issue, and others, on October
20, 2014. Specifically, the Commonwealth sought to introduce a
DUI conviction from 2005 in Pennsylvania, a DUI conviction from
2007 in Maryland, and various summary traffic offenses from
2001. In addition to the convictions, the Commonwealth also
requested to present testimony explaining the underlying facts of
those convictions.
With respect to the 2005 Pennsylvania DUI, the Appellant
pleaded guilty to a DUI first offense on February 13, 2006. As
the Commonwealth argued at the October 20th hearing, the facts
from that DUI were similar to the present DUI in that it involved
the Appellant leaving the scene of an accident. As a result, the
Appellant was sentenced to 72 hours to 6 months imprisonment
and ordered to take DUI awareness classes.
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The 2007 Maryland DUI was factually different in that it
was a standard traffic stop which resulted in the officer’s
suspicion that the Appellant was under the influence of alcohol.
The Commonwealth was not in possession of anything stating
that the Appellant had received classes as a result of that
conviction.
At the October 20th hearing, defense counsel argued that
admitting the Appellant’s prior DUI convictions would lead the
jury to convict based on those prior DUI’s and not the facts in
the present case; in other words, the probative value would not
be outweighed by the prejudice to the Appellant. The
Commonwealth argued that the prior DUI convictions should be
admitted because it shows the Appellant took DUI education
classes on the dangers of drinking and driving. This according to
the Commonwealth, goes to show the Appellant’s intent and/or
malice. As previously mentioned, the Commonwealth sought to
admit not only the Appellant’s DUI convictions, but also the
underlying facts giving rise to those DUI’s.
We ultimately decided to allow the Commonwealth to
present evidence of the 2005 Pennsylvania DUI conviction, but
only to the extent it showed the Appellant took classes focused
on the dangers of drinking and driving. We specifically stated,
“[t]he Commonwealth will be precluded from going into the
details of that particular crash, as well as the 2007 DUI in
Maryland.” We also concluded that the Commonwealth would
not be permitted to introduce any evidence relating to the
various summary traffic offenses [which related to prior
automobile accidents].
At the Appellant’s trial, the Commonwealth and defense
entered into stipulations regarding the Appellant’s 2005 DUI
conviction and subsequent DUI education classes. The first
stipulation stated that the Appellant pleaded guilty in 2006 to a
DUI. The second stipulation stated that the Appellant received
and attended four DUI education classes as a result of that
conviction. Specifically, the classes the Appellant attended
included materials about “the effect of alcohol on various parts of
the body and specifically on different parts of the brain. They
also addressed the impact of alcohol consumption on judgment,
perception, and driving behavior.”
Trial Court Opinion, June 4, 2015, at 11-13.
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As noted above, trial ended with a jury verdict of not guilty on the
count of Third Degree Murder, but guilty verdicts on Homicide by Vehicle-
DUI and all other counts. At sentencing, the trial court elected to run
Appellant’s sentences consecutively, citing the failure of previous
rehabilitative measures offered after prior DUI convictions and denying that
the offenses arose from the same act. This timely appeal followed.
Appellant presents for our review two issues initially raised in his
timely Pa.R.A.P. 1925(b) statement:
1. Whether the trial court erred in admitting Appellant’s 2005
DUI conviction and subsequent DUI treatment, including
alcohol influence awareness courses, pursuant to Pa.R.E. 404
as such evidence was more prejudicial than probative under
the circumstances and facts of this particular case?
2. Whether the trial court abused its discretion when sentencing
Appellant to consecutive sentences on the Homicide by
Vehicle, Homicide by Vehicle while DUI, and Accidents
Involving Death or Personal Injury when the conduct giving
rise to those convictions was based on a single course of
conduct and such consecutive sentences were inappropriate
under the circumstances?
Appellant’s brief at 6.
In reviewing Appellant's claim, we adhere to the following standards:
With regard to the admission of evidence, we give the trial court
broad discretion, and we will only reverse a trial court's decision
to admit or deny evidence on a showing that the trial court
clearly abused its discretion. An abuse of discretion is not
merely an error in judgment, but an overriding misapplication of
the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality,
as shown by the evidence or the record.
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Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa.Super. 2012) (internal
citations and quotation marks omitted).
“Under the Pennsylvania Rules of Evidence, evidence of other bad acts
or crimes that are not currently being prosecuted against the defendant are
not admissible against the defendant to show his bad character or propensity
to commit criminal acts.” Id. at 87 (citing Pa.R.E. 404(b)). “However,
evidence of other crimes may be admissible where that evidence is used for
some other purpose.” Id. Such purposes explicitly include “proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Rule 404(b)(2). See Commonwealth v.
Johnson, 615 Pa. 354, 372, 42 A.3d 1017, 1027 (2012) (“Prior acts are
admissible to show ill will, motive, malice, or the nature of the relationship
between the defendant and the decedent.”)(emphasis added).
“However, admission for these purposes is allowable only whenever
the probative value of the evidence exceeds its potential for prejudice.
Pa.R.E. 404(b)(3).” Commonwealth v. Briggs, 608 Pa. 430, 505, 12 A.3d
291, 337 (2011).
In conducting the probative value/prejudice balancing test,
courts must consider factors such as the strength of the “other
crimes” evidence, the similarities between the crimes, the time
lapse between crimes, the need for the other crimes evidence,
the efficacy of alternative proof of the charged crime, and “the
degree to which the evidence probably will rouse the jury to
overmastering hostility.” McCormick, Evidence § 190 at 811
(4th ed.1992). See also Commonwealth v. Frank, 395
Pa.Super. 412, 577 A.2d 609 (1990) (enumerating balancing
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test factors, including ability for limiting instruction to reduce
prejudice).
Commonwealth v. Kinard, 95 A.3d 279, 286 (Pa.Super. 2014) (quoting
Commonwealth v. Weakley, 972 A.2d 1182, 1191 (Pa.Super. 2009)).
The admission of evidence becomes problematic only when its prejudicial
effect creates a danger that it will stir such passion in the jury as to sweep
them beyond a rational consideration of guilt or innocence of the crime on
trial. Commonwealth v. Sherwood, 603 Pa. 92, 114-16, 982 A.2d 483,
496-98 (2009) (internal quotation marks and citation omitted).
Here, the trial court deemed the 2005 DUI conviction and education
evidence relevant and admissible to prove malice, criminal negligence, and
recklessness by showing Appellant disregarded the specialized knowledge he
had acquired regarding the increased risk of danger that drinking after
driving poses. Appellant contends, however, that the admission was more
prejudicial than probative because it diverted the jury’s attention away from
what should have been the pivotal question of whether his collision with
Chief Miller was the unavoidable product of confusing circumstances beyond
his control or, instead, a result caused by his DUI. The evidentiary ruling,
Appellant maintains, allowed the Commonwealth to “‘negate any lesser or
innocent degrees of intent’ through the use of prior convictions[.]”
Appellant’s brief at 19. The gist of Appellant’s argument, therefore, is that
allowing the jury to consider whether Appellant “should have known better”
because of his past DUI conviction and education unfairly negated the
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possibility that the jury would find he acted with mere ordinary negligence or
without culpability altogether.
The Commonwealth responds that the other crimes evidence was
admissible under the exceptions regarding knowledge and intent (malice), as
well as absence of mistake or accident. “More specifically, . . . the
aforementioned evidence established that [Appellant] had specific
knowledge, experience and training concerning the risks of driving while
impaired, and [Appellant] chose to consciously disregard those risks, thereby
demonstrating [Appellant] acted with malice and an absence of mistake or
accident.” Appellant’s brief at 38-39.
To support its position, the Commonwealth cites to the nearly
unanimous opinion among extra-jurisdictional decisions that prior DUI
offenses and DUI education programs are admissible to establish the mens
rea of third-degree murder or vehicular homicide. For example, in United
States v. Tan, 254 F.3d 1204 (10th Cir. 2001), the Tenth Circuit Court of
Appeals deemed admissible the defendant’s seven prior DUI convictions
spanning 14 years before the DUI-related fatal collision at issue. In
reversing the district court, the circuit court balanced the probative value
against the prejudicial effect of such evidence and discerned a heightened
probative value given the lack of other evidence of malice. Particularly
supportive of its opinion in favor of admission, the court determined, was
the relatively greater need for the Rule 404(b) evidence in its case than
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existed in other circuit court cases in which admission was granted even
though other evidence of malice was introduced at trial:
The district court also distinguished cases from the Fourth and
Ninth Circuits in which the admission of prior drunk driving
convictions was upheld for the purposes of proving malice in
second degree murder prosecutions. In United States v.
Fleming, 739 F.2d 945 (4th Cir. 1984), the highly intoxicated
defendant, while fleeing from police in his vehicle, drove in an
extremely reckless manner, eventually striking a car in the
oncoming lanes and killing its driver. Id. at 947. The district
court permitted the introduction of the defendant's driving
record which showed several previous drunk driving convictions.
The Fourth Circuit upheld the admission of that evidence:
The driving record would not have been admissible
to show that defendant had a propensity to drive
while drunk. Fed.R.Evid. 404(b). However, the
driving record was relevant to establish that
defendant had grounds to be aware of the risk his
drinking and driving while intoxicated presented to
others. It thus was properly admitted.
Id. at 949.
In United States v. Loera, 923 F.2d 725 (9th Cir. 1991), the
inebriated defendant also drove in an extremely reckless manner
prior to striking his victims. He was charged, as is Defendant
here, with one count of second degree murder and one count of
assault resulting in serious bodily injury. Id. at 726. As in
Fleming, the district court in Loera admitted the defendant's
driving record which revealed his past drunk driving convictions.
On appeal, the Ninth Circuit summarily stated that “[t]he prior
convictions were properly admitted to establish the element of
malice required for the proof of second-degree murder.” Id. at
729.
The district court in this case distinguished Fleming, and by
implication, Loera, on the ground that “in addition to being
intoxicated, the defendant drove in a manner indicating
depraved disregard for human life.” Order at 5. In other words,
the jury could infer malice in those cases from the defendants'
actions immediately prior to the fatal accidents. Distinguishing
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Fleming and Loera from the instant case on that basis,
however, cuts against, rather than supports, the district court's
exclusionary ruling. If malice could be inferred from evidence
other than prior drunk driving convictions, then the probative
value of those prior convictions was greatly reduced. The fact
that the courts in Fleming and Loera admitted the prior
convictions to prove malice despite their reduced probative value
supports the admission of that kind of evidence in this case
where its probative value is high due to the lack of other
evidence of malice. Most significantly for Rule 404(b) purposes,
neither the Fleming nor the Loera court found the prior drunk
driving convictions to be offered for the improper purpose of
proving character to show action in conformity therewith.
…
A jury could infer from Defendant's prior drunk driving
convictions that he is especially aware of the problems and risks
associated with drunk driving. We agree that “[o]ne who drives
a vehicle while under the influence after having been convicted
of that offense knows better than most that his conduct is not
only illegal, but entails a substantial risk of harm to himself and
others.” [People v. ]Brogna, [202 Cal. App. 3d 700,] 248
Cal.Rptr. [761, ]766–67 [(1988)] (criminal act underlying
vehicular murder is driving under the influence with conscious
disregard for life and prior convictions are probative of that
mental state since those who drink and drive after being
convicted of that offense know better than most of the illegality
and danger of their conduct).
Tan, 254 F.3d at 1209-10. Accord U.S. v. New, 491 F.3d 369 (8th Cir.
2007); State v. Jones, 773 S.E.2d 170 (Ga. 2015); State v. Maready, 669
S.E.2d 564 (N.C. 2008) (holding prior DUI convictions admissible to
establish malice); Jeffries v. State, 169 P.3d 913 (2007) (holding evidence
of prior DUI convictions and refusal to participate in classes highly probative
indirect evidence of mental state by showing heightened awareness of the
risks of defendant’s actions); State v. St. Clair, 67 P.3d 779 (Haw. 2003);
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Morehead v. State, 638 A.2d 52 (Del. 1994) (admission of two and six
year-old DUI convictions upheld as probative, and not unfairly prejudicial, of
intent); People v. Kenny, 175 A.D.2d 404, 572 N.Y.S2d 102 (1991)
(holding probative value of prior DUI conviction and education evidence
outweighed prejudicial effect, even where other evidence of recklessness--
.17% BAC, driving 73 mph in a 45 mph zone during medium to heavy traffic,
and uncooperative attitude at scene—existed). But Cf. Brown v. State,
547 A.2d 1099 (Md. App. 1988) (holding evidence of past DUI and
participation in DUI education classes inadmissible as impeachment
evidence).
The reasons relied upon by other jurisdictions to admit prior DUI
convictions and education classes as inferential evidence of a driver’s state
of mind are compelling when applied in the case sub judice. At trial, the
alternative proof of malice was of uncertain efficacy, as evidence that
Appellant disregarded an obvious emergency situation and failed to stop
after his involvement in a serious collision was potentially dampened by his
subsequent expressions of confusion, remorse, and concern, as well as by
his willingness to cooperate fully with investigators. This conflict within the
evidence enhanced the need for and potency of the rule 404(b) evidence as
a means to infer Appellant’s state of mind leading up to and including the
time of the accident. His past experience with DUI and leaving the scene of
an accident, and the special instruction he received on the dangers of
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drinking and driving were, therefore, highly probative to the question of
whether he, more than the typical driver, knew better than to drink and
drive and to leave the scene of any accident.
The trial court tempered any potential for unfair prejudice by
instructing the jury that the evidence was admitted for the “very limited
purpose” of “tending to show what the Defendant’s knowledge was of the
hazards of drinking and driving. The evidence must not be considered by
you in any other way other than for the purpose that I just stated.” N.T. at
1000. Moreover, the acquittal of Appellant on the most serious count of
third-degree murder is inconsistent with the notion that the Rule 404(b)
evidence instilled within the jury a fixed hostility and bias against Appellant
that rendered it incapable of basing its verdict on a fair assessment of the
evidence. Accordingly, concluding that the probative value of Appellant’s
2005 DUI conviction and participation in DUI classes exceeded its potential
for prejudice, we discern no reversible error in the court’s evidentiary ruling.
In Appellant's remaining issue, he charges the trial court with abusing
its sentencing discretion in the imposition of consecutive sentences for
Homicide by Vehicle, Homicide by Vehicle-DUI, and Accidents Involving
Death or Personal Injury when the conduct giving rise to those convictions,
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he maintains, was based on a single course of conduct.4 Prior to reaching
the merits of a discretionary aspects of sentencing issue, we conduct a four-
part analysis to determine whether a petition for permission to appeal should
be granted. Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa.Super.
2014) (citation omitted). Specifically, we must determine:
(1) [W]hether appellant has filed a timely notice of appeal,
Pa.R.A.P. 902, 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, 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).
Id.
The record reflects that Appellant filed a timely post-sentence motion
and a timely notice of appeal. He also satisfies his obligation to include a
Rule 2119(f) statement in his brief. See Appellant's Brief at 15. The
Commonwealth, for its part, objects that Appellant’s 2119(f) statement fails
to state a substantial question. We therefore proceed to determine whether
Appellant raised a substantial question for our review.
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4
Appellant challenges the imposition of consecutive sentences, not separate
sentences, for the three convictions. As such, he does not contend that his
sentences for Homicide by Vehicle-DUI and Homicide by Vehicle convictions
should have merged, a position the Pennsylvania Supreme Court has, in any
event, rejected. See Commonwealth v. Collins, 564 Pa. 144, 145-46,
764 A.2d 1056, 1056 (2001) (holding Homicide by Vehicle and Homicide by
Vehicle-DUI do not merge for sentencing purposes).
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“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa.Super. 2013) (citations omitted). “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.” Id. (citations omitted).
“Additionally, we cannot look beyond the statement of questions presented
and the prefatory 2119(f) statement to determine whether a substantial
question exists.” Commonwealth v. Provenzano, 50 A.3d 148, 154
(Pa.Super. 2012).
In his petition for allowance of appeal, Appellant contends that
sentencing consecutively based on the specific aspects of each offense “while
virtually wholly ignoring that this was one incident which resulted in one
death from a situation that had significant mitigating circumstances” was
unreasonable under the circumstances. Appellant’s brief, Section 2119(f)
statement, at 15. “[A] defendant may raise a substantial question where he
receives consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines would be
clearly unreasonable, resulting in an excessive sentence; however, a bald
claim of excessiveness due to the consecutive nature of a sentence will not
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raise a substantial question.” Commonwealth v. Dodge, 77 A.3d 1263,
1270 (Pa.Super. 2013).
While Appellant’s statement offers more than a bald claim of
excessiveness, we disagree that his case involves circumstances in which
imposition of consecutive, guideline range sentences would be clearly
unreasonable. In this respect, we concur with the trial court’s observations
at sentencing that the course of events comprised distinct aspects of
consciously drinking before driving, disregarding obvious signs of an
emergent situation on the highway indicating a need for cautious driving,
and proceeding away from the scene after a serious collision, which, taken
together, placed this matter within the court’s province to impose
consecutive sentences. As Appellant’s statement fails to address these
points with any meaningful detail, we find it does not raise a substantial
question.
Even assuming, arguendo, that Appellant’s statement did raise a
substantial question meriting our review, we would still find his claim affords
him no relief. Specifically, the entirety of Appellant’s argument consists of
stating “the sentencing court failed to consider the nature and circumstances
of the offense[s] when it sentenced [Appellant] to consecutive sentences[,] .
. . [i]mposing consecutive sentences under these circumstances [involving a
single course of conduct] seems to be a “volume mark-up[, and] [t]he
sentencing court failed to consider that, despite [Appellant’s] intoxication,
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there were various factors that mitigate [Appellant’s] intoxicated state.”
Appellant’s brief at 24-25. We disagree. As we indicated supra, the
sentencing transcript belies Appellant’s claim that the court failed to consider
the nature and circumstances of the offense. See N.T., Sentencing, at 45-
46. Moreover, we reject Appellant’s contention that mitigating
circumstances were at play when he struck Chief Mller. While it is true that
Mr. Hopkins stated he could not ascertain from a half-mile away the precise
situation giving rise to flashing lights on the highway, he nevertheless acted
with the appropriate level of caution by slowing down and activating his
four-way flashers. His conduct in this respect was that of the reasonable
driver, according to the trial court, and we agree with this assessment. In
contrast, Appellant failed to heed any of these obvious signals of danger and
rushed through the scene at between 40 and 60 miles per hour. If anything,
such circumstances were aggravating, not mitigating, in the sentencing
context. Accordingly, we find no merit in Appellant’s sentencing claim.
Judgment of sentence is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2016
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