Com. v. Lineman, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW LINEMAN :
:
Appellant : No. 2542 EDA 2018
Appeal from the Judgment of Sentence Entered June 25, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005249-2017
BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 3, 2020
Andrew Lineman appeals from his June 25, 2018 judgment of sentence
imposed after he pled guilty to charges of aggravated assault by vehicle while
driving under the influence (“DUI”), aggravated assault by vehicle, DUI:
controlled substance or metabolite, DUI: impaired ability, and intentional
possession of a controlled substance by a person not registered. We affirm.
On December 28, 2016, Appellant was speeding while driving along
North 2nd Street in Philadelphia, Pennsylvania, shortly after smoking
phenylcyclohexyl piperidine (“PCP”). Appellant drove through a red light, and
struck a pick-up truck driven by Jeffrey Scott (“the victim”), who suffered
traumatic brain injuries. When Philadelphia Police arrived on scene, an officer
observed Appellant climbing out of his vehicle with a bottle of vodka in his
hand. The officer spoke to Appellant, and immediately noticed his blood-shot
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eyes, slurred speech, and slowed movements. Appellant admitted he had
been drinking alcohol, and the officer also suspected that Appellant was under
the influence of additional intoxicants. The officer searched Appellant’s vehicle
and also discovered a pill bottle later determined to contain twenty-eight pills
of Alprazolam, a controlled substance for which Appellant had no prescription.
Appellant was transported to the hospital, where he confessed to
another officer that he had been smoking PCP just prior to the accident.
Appellant consented to a blood test, which confirmed the presence of PCP and
also indicated Appellant had been using marijuana. Appellant was arrested
and charged with, inter alia, the aforementioned offenses.
While Appellant was out on bail for these charges, he was arrested and
convicted of a violation of the Uniform Firearms Act (“VUFA”) in a separate
case, and was ultimately sentenced to three to seven years’ incarceration for
that offense. See Commonwealth v. Lineman, 219 A.3d 684, (Pa.Super.
2019), reversed at 2020 WL 4558563 (Pa. Aug. 7, 2020) (“Lineman”).
Appellant entered a non-negotiated guilty plea to the above-referenced DUI
charges. On June 25, 2018, the trial court imposed an aggregate sentence of
three to ten years of incarceration,1 set to run consecutively to the sentence
he was already serving in connection with his separate conviction in Lineman.
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1 Appellant was sentenced to three to ten years of incarceration in connection
with his plea to aggravated assault while driving under the influence (“DUI”).
He also received respective sentences of one to two years of incarceration in
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Appellant filed a timely post-sentence motion requesting reconsideration
of his sentence on the grounds that, inter alia, setting his sentence in this case
to run consecutive to his sentence in Lineman rendered the overall sentence
excessive. On July 24, 2018, the trial court denied his post-sentence motion,
and Appellant timely appealed. Both Appellant and trial court timely complied
with their obligations under Pa.R.A.P. 1925.
Appellant presents a single claim for our consideration:
Did the sentencing court err as a matter of law, abuse its
discretion, and violate general sentencing principles when it
sentenced defendant to 19-38 years’ incarceration; where this
sentence was manifestly excessive and unreasonable; far
surpassed what was required to protect the public, the
complainants, and the community; went well beyond what is
necessary to foster [Appellant]’s rehabilitation; and was grossly
disproportionate to the crime?
Appellant’s brief at 1. In essence, Appellant challenges the trial court’s
discretionary imposition of a sentence set to run consecutively to his separate
sentence in Lineman.
Appellant’s claim is a challenge to the discretionary aspects of his
criminal sentence. We review such claims for an abuse of discretion. See
Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa.Super. 2010). “An
abuse of discretion may not be found merely because an appellate court might
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connection with his pleas to aggravated assault by vehicle, DUI: controlled
substance or metabolite, and DUI: impaired ability. All three of these
sentences were set to run concurrently with his sentence for aggravated
assault while DUI. Appellant received no further penalty in connection with
the remaining possessory charge.
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have reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Id. at 170. “The rationale behind
such broad discretion and the concomitantly deferential standard of appellate
review is that the sentencing court is in the best position to determine the
proper penalty for a particular offense based upon an evaluation of the
individual circumstances before it.” Id.At the outset, we note that “there is no absolute right to appeal when
challenging the discretionary aspect of a sentence.” Commonwealth v.
Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). Rather, an Appellant must
satisfy a four-part test by: (1) filing a timely notice of appeal; (2) preserving
the underlying issue at sentencing or in a post-sentence motion; (3) including
a concise statement pursuant to Pa.R.A.P. 2119(f) in his brief; and (4) raising
a substantial question that the sentence appealed from is not appropriate
under the Pennsylvania Sentencing Code. See Commonwealth v. Caldwell,
117 A.3d 763, 768 (Pa.Super. 2015). Instantly, Appellant has complied with
the first three of these technical requirements. Before we may consider the
merits of Appellant’s claims, however, we must determine whether he has
raised a “substantial” question.
An appellant presents a substantial question in this context by setting
forth a “plausible argument that the sentence violates a provision of the
sentencing code[,] or is contrary to the fundamental norms of the sentencing
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process.” Crump, supra at 1282. Merely alleging that a sentence is
excessive does not raise a substantial question. See Commonwealth v.
Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013).
Generally, the decision to sentence a defendant consecutively rather
than concurrently is within the discretion of the sentencing court. See, e.g.,
Commonwealth v. Ali, 197 A.3d 742, 765 (Pa.Super. 2018). A substantial
question as to consecutive sentences exists only if “the aggregate sentence is
unduly harsh, considering the nature of the crimes and the length of
imprisonment.” Commonwealth v. Caldwell, 117 A.3d 763, 771 (Pa.Super.
2015). Absent such excessiveness, this Court has routinely held that the mere
imposition of a criminal sentence set to run consecutively to a separate
criminal sentence does not raise a substantial question. See Commonwealth
v. Pass, 914 A.2d 442, 444 (Pa.Super. 2006) (recognizing “long-standing
precedent” that “affords the sentencing court discretion to impose its sentence
concurrently or consecutively to other sentences . . . already imposed”).
Appellant’s alleged substantial question concerns the trial court’s
imposition of a three-to-ten-year sentence set to run consecutively to the
separate three-to-seven-year sentence in Lineman. See Appellant’s brief at
12 (arguing that the sentence fashioned by the trial court “went far beyond
what is necessary to foster [Appellant’s] rehabilitation” and was “grossly
disproportionate to [his] crimes”). Overall, Appellant characterizes a potential
seventeen-year sentence as manifestly excessive. Id.-5-
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As noted above, Appellant’s claim concerning the consecutive nature of
his sentence would not ordinarily raise a substantial question unless “the case
involved circumstances where the application of the guidelines would be
clearly unreasonable.” See Dodge, supra at 1270. This is not such a case.2
In its Rule 1925(a) opinion, the trial court stated that the sentence was
imposed after carefully considering all appropriate factors, including the
severity of the offense, the impact on the victim, appellant’s likelihood of
committing another crime, and the safety and protection of the community.
See Trial Court Opinion, 7/12/19, at 6-9. In particular, the trial court focused
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2 Appellant has attempted to cast his case in the same light as the
circumstances presented in Dodge. See Appellant’s brief at 13-15. In
Dodge, a 42-year-old defendant was sentenced to an aggregate term of fifty-
two and one-half years to 111 years of incarceration in connection with thirty-
seven separate charges of receiving stolen pieces of costume jewelry. Id. at
1200, 1202. Our Supreme Court vacated the sentence as unreasonable and
excessive, rejecting the notion of “imposing a life sentence for non-violent
offenses with limited financial impact.” Id. at 1202.
Dodge is not an appropriate parallel to Appellant’s case. While Appellant’s
crimes were not overtly violent, his actions had permanent, life-changing
physical, financial, and emotional impacts upon the victim. In particular, the
victim suffered a traumatic brain injury that has negatively affected his
memory. The victim is perpetually numb on his right side, and has very
limited use of his right-sided limbs. Consequently, he is unable to work or
support his family. See N.T. Sentencing Hearing, 6/25/18, at 7.
Appellant’s arguments minimize these harrowing consequences, and insinuate
that the trial court did not appropriately consider Appellant’s rehabilitative
needs. However, the certified record belies Appellant’s arguments. The trial
court fully considered Appellant’s protracted struggles with addiction in
crafting his sentence. Id. at 7-8, 10-14.
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upon Appellant’s criminal record and history of substance abuse, coupled with
the injuries sustained by the victim:
Appellant’s criminal history consisting of a variety of drug
possession and DUI charges for which he has not received any
penalty demonstrates that he has not learned from his reckless
actions. Despite being given break after break, he has not taken
these opportunities to get his life together. Unfortunately, this
time, Appellant’s dangerous and selfish decision to drive under the
influence resulted in this traffic accident that has significantly
changed the victim’s life forever.
Id. at 8. Moreover, the trial court correctly noted that the sentence was within
the applicable guidelines. In addressing Appellant’s claim concerning the
imposition of a consecutive sentence, the trial court averred that Appellant did
not raise a substantial question because the choice to impose a consecutive
sentence was well within its discretion in light of the circumstances of
Appellant’s offenses. We agree with the trial court’s assessment.
Our review of the certified record confirms that the sentencing court
properly considered Appellant’s situation, the relevant circumstances of his
offenses, all presentence investigations, and the precepts of the Sentencing
Code. Accord 42 Pa.C.S. § 9781(d)(1)-(4). The trial court stated on the
record that Appellant’s substance abuse history, his numerous prior DUI and
controlled substance convictions, and the serious injuries to the victim justified
the consecutive sentence. See N.T. Sentencing, 6/25/2018, at 7-8, 10-14.
In the trial court’s view, Appellant’s pattern of behavior posed an escalating
threat to his community. Id. at 13 (“[W]hat I’m concerned about is the
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[e]ffect it had on [the victim] and the fact that you had a number of
opportunities to deal with your problems and have not dealt with them.”).
In sum, Appellant has not advanced a colorable argument that the
imposition of a consecutive sentence was either inconsistent with a specific
provision of the Sentencing Code, or contrary to the fundamental norms
underlying the sentencing process.3 In view of the foregoing, we find that
Appellant has not raised a substantial question. Accord Pass, supra at 444.
Judgment of sentence affirmed.4/5
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3 Due to the nature of our holding, we do not address the merits of Appellant’s
claim concerning the consecutive nature of his sentence. However, on August
7, 2020, our Supreme Court entered a per curiam order in Commonwealth
v. Lineman, 2020 WL 4558563 (Pa. Aug. 7, 2020), that reversed the
judgment of this Court in Commonwealth v. Lineman, 219 A.3d 684(Pa.Super. 2019) (collectively, “Lineman”). Assuming, arguendo, that
Appellant’s claim presented a substantial question, the Supreme Court’s order
renders his substantive sentencing argument moot since Appellant’s judgment
of sentence in Lineman has been vacated and his conviction reversed.
4 On August 12, 2020, Appellant filed an application for a stay of proceedings,
asserting that the Supreme Court’s per curiam order “may affect [Appellant’s]
sentencing guidelines in this case, the legality of that sentence, and the
arguments made by Counsel in its appellate brief[.]” Appellant’s Application
for Stay of Proceedings, 8/12/20, at ¶ 7 (emphasis added). Critically,
Appellant has provided no discussion or argument concerning how the reversal
of Lineman will affect the legality of Appellant’s sentence in this separate
case. Cf. Pa.R.A.P. 123 (requiring an application for relief to “state with
particularity the grounds on which it is based”). Rather, Appellant has offered
only the sheer possibility of future claims and issues that may arise. As such,
we deny Appellant’s application for an open-ended stay of proceedings.
5 To the extent that the Supreme Court’s per curiam order in Lineman raises
concerns regarding the validity of the sentencing guidelines in this case, we
note that Appellant’s reversed conviction in Lineman was not included in
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/3/2020
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thecalculation of Appellant’s prior record score. See 204 Pa. Code §
303.8(a)(1) (“In order for an offense to be considered in the Prior Record
Score, both the commission of and conviction for the previous offense must
occur before the commission of the current offense.” (emphasis added)). All
of the events in Lineman took place after Appellant’s commission of the
crimes in this case. Moreover, our review of the certified record confirms that
Appellant’s conviction in Lineman was properly excluded from the calculation
of his sentencing guidelines.
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