J-S51005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ALTON M. PARKER

                            Appellant              No. 2552 EDA 2013


            Appeal from the Judgment of Sentence August 20, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008355-2011


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                   FILED SEPTEMBER 09, 2015

       Appellant, Alton M. Parker, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial convictions for aggravated assault, simple assault, possessing

instruments of crime (“PIC”), recklessly endangering another person

(“REAP”), criminal mischief, aggravated assault by vehicle while driving

under the influence (“aggravated assault—DUI”), accidents involving death

or personal injury, and DUI—controlled substances.1 We affirm.

       The trial court opinion set forth the relevant facts of this case as

follows:
____________________________________________


1
  18 Pa.C.S.A. §§ 2702, 2701, 907, 2705, 3304(a)(1); 75 Pa.C.S.A. §§
3735.1, 3742, 3802(d)(1).


_________________________

*Retired Senior Judge assigned to the Superior Court.
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       On May 7, 2011, at approximately 4:00 p.m.[,] the 2500
       and 2600 blocks of Myrtlewood Street were blocked off for
       two neighborhood block parties. Moonbounces had been
       set up in the 2600 block, along with tables filled with food
       and cake. The streets were blocked off with a parked car
       and rope, and were packed with adults and at least fifty
       (50) children, many of whom were toddlers.

       Appellant, who was driving a dark-colored car which he did
       not own and did not have permission to use, turned off
       Huntingdon Street and proceeded up Myrtlewood in the
       wrong direction. Although the street was blocked off with
       a vehicle barrier, Appellant drove through the barrier
       blocking the 2500 block, hitting tables and chairs as he
       drove by. Neighbors screamed, “You’re going the wrong
       way, you’re going the wrong way.”

       Appellant, driving at a rate of between twenty (20) and
       forty-five (45) mph, ignored them and threw a can of beer
       out of his car window, as he held a hatchet in his left hand.
       Neighbors attempted to herd the children out of the way,
       but it was too late. Appellant revved his car engine,
       speeding up and slammed into one of the moonbounces
       while two-year-old Carmel White was still inside. The force
       of the impact tore the moonbounce out of its plug, with
       wires flying.

       As Appellant turned the corner, still dragging the
       moonbounce with Carmel White inside behind him, he hit
       the other moonbounce as well as hitting two children:
       Jahlil Clark and Andre Clark. As neighbors desperately
       searched for the children, they could not at first find
       Carmel. They had to cut the moonbounces open to free
       the children tangled within. Appellant was traveling at
       such a rate of speed that a cob of corn had wedged in his
       driver’s side mirror, a plastic fork in the windshield, and
       food splattered all over the headlights, hood, and front
       bumper. He also dragged the tables the length of about
       ten houses as he sped by.

       Although neighbors screamed at him that he had hit a
       child, Appellant did not slow down as he turned onto
       Oakdale Street, however he did slow down around the
       2900 block of Lehigh Street and neighbors, including

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       Jerome Conquest…chased after him and eventually caught
       up with his car. Some of them attempted to pull open the
       driver’s side door. Other people attempted to reach in
       through the window. Appellant, who had been attempting
       to fight the neighbors off, pulled the door shut and locked
       it. He then sped off and hit a blue car parked at the
       corner.

       Valerie Walls called 911 while other neighbors ran to help
       Andre Clark, who lay bleeding in the street, his head
       swelling. He and the other children who had been hit by
       Appellant were taken by ambulance to St. Christopher’s
       Hospital.

       Off-duty Police Officer Jonathan Ross was driving on 29th
       Street near Huntingdon Street when he heard a crash and
       observed a crowd of people running to Myrtlewood Street.
       Officer Ross drove up a block and saw a dark colored car
       traveling eastbound with the crowd chasing it.       [Mr.]
       Conquest ran toward Officer Ross’[] truck and told him,
       “Hey, listen, chase that car. He just ran over some kids.”
       [Mr.] Conquest jumped into the back of Officer Ross’ truck
       and they chased Appellant, now driving down Oakdale
       Street, for five or six blocks. They followed him to 26 th
       Street and Sergeant Streets, where he stopped behind a
       white BMW vehicle.         Officer Ross pulled alongside
       Appellant’s car and tried to get him to stop, but Appellant
       hit the passenger side of Officer Ross’ truck, clipped the
       BMW, and crashed into a wall at a speed of at least 30
       mph.

       [Mr.] Conquest jumped from the back of [Officer] Ross’
       truck, punched Appellant twice in the face, and tried to
       reach in to take the keys from the ignition, but Appellant
       continued to struggle and try to push [Mr.] Conquest’s
       hands away. When [Mr.] Conquest would not be deterred,
       Appellant swung a hatchet at him, the blade sinking into
       the car door.

       Officer Ross positioned his car behind Appellant’s car,
       trapping him, and called 911. As Appellant attempted to
       put his car in reverse, Officer Ross jumped from the truck
       with his badge and gun drawn, and informed the crowd he
       was a police officer. Appellant, glassy-eyed and startled,

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          began swinging the hatchet through the open car window
          at Officer Ross. Officer Ross backed out of range of the
          weapon.     Backup officers arrived and together, they
          attempted to get the attention of Appellant, who was still
          swinging the hatchet.

          One of the responding officers, Michael O’Brien, noted a
          strong odor of PCP—a pungent, harsh, chemical scent as
          he opened Appellant’s car door. Officer O’Brien attempted
          to take Appellant out of the driver’s side door, but
          Appellant reached for the hatchet. After Officer O’Brien
          drew his gun, Appellant was distracted long enough that
          another officer was able to snatch the blade away. Once
          the weapon was secured, officers placed Appellant under
          arrest. Appellant was unable to walk under his own power
          and was completely incoherent. His eyes were bloodshot
          and his appearance generally was disheveled; his boots
          were mismatched. He smelled strongly of PCP.

          Appellant was taken to St. Joseph’s Hospital.      At the
          hospital, Police Officer Karen Cotton read Appellant his
          O’Connell[2] warnings, informing him of the consequences
          of refusing a blood test, and observed Appellant’s blood
          draw at 5:25 p.m. At the time, Appellant was aggressive
          and struggling while handcuffed to his bed. Appellant told
          Officer Cotton that he was in the area of Lehigh Street to
          drop off a TV to a customer when he blacked out.

          After the accident Carmel White, a twenty-one (21) month
          old toddler, was admitted to St. Christopher’s Hospital with
          difficulty walking. She had left leg pain, an abrasion to her
          right wrist, and blood in her diaper. Jahlil Clark, nine (9)
          years old, had a possible small fracture to his right patella,
          knee swelling, knee and leg sprain, and was admitted to
          St. Christopher’s Hospital. Alexus Jardine, seventeen (17)
          years old, was admitted to St. Christopher’s with wrist and
          hand sprains, and abrasions. She had been dragged by
          the moonbounce for a distance of four (4) houses.

____________________________________________


2
 Com., Dept. of Transp., Bureau of Traffic Safety v. O’Connell, 521 Pa.
242, 555 A.2d 873 (1989).



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         Andre Clark[,] nine (9) years old at the time of the
         accident, was admitted to the hospital with a right epidural
         hematoma, a liver laceration, a right shoulder fracture,
         broken fingers, fractured pelvis, a spine injury, and
         multiple broken ribs. He was referred for plastic surgery
         on his scalp, face, and knee. He could not bear weight on
         his legs initially and spent ten days in a rehab center. He
         was in St. Christopher’s Hospital for a month before being
         moved to a rehabilitation center and wore a neck brace for
         three months. He underwent an extensive rehabilitation
         period: he could not walk for a month and remained in a
         wheelchair, then required crutches, and finally a walking
         stick. After his release, he limped for six months. Even
         today, [Mr.] Clark cannot run as fast as he used to.

         Toxicology tests on the blood drawn from Appellant at the
         hospital showed that his blood contained forty-two (42)
         nanograms per millimeter of phencyclidine (“PCP”), a
         Schedule II controlled substance. Any amount of PCP in
         the blood causes effects; the minimal reportable levels for
         this drug are between one (1) and five (5) nanograms.
         PCP is a hallucinogen which causes a distortion of person,
         place, and time; judgment is affected and rapid muscle
         movement and belligerent behavior also result.         The
         amount of PCP in Appellant’s blood was consistent with
         recent, active use in a dosage consistent with and capable
         of producing adverse psychoactive effects.

(Trial Court Opinion, filed December 3, 2014, at 4-8) (footnotes and internal

citations to the record omitted).

      Following a bench trial, the court convicted Appellant of two (2) counts

each of aggravated assault, simple assault, aggravated assault—DUI, and

PIC; three (3) counts of accidents involving death or personal injury; one (1)

count each of REAP and DUI—controlled substances; and four (4) counts of

criminal mischief.   On August 20, 2013, the court sentenced Appellant to

consecutive terms of eleven (11) to twenty-two (22) years’ incarceration for


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aggravated assault; four (4) to eight (8) years’ incarceration for aggravated

assault—DUI; three (3) to six (6) years’ incarceration for accidents involving

death or personal injury; and one (1) to two (2) years’ incarceration for one

of the simple assault convictions.         The court imposed concurrent terms of

seventy-two (72) hours’ to six (6) months’ incarceration for DUI; thirty-two

(32) to sixty-four (64) months’ incarceration for PIC; fourteen (14) to

twenty-eight (28) months’ incarceration for REAP; four (4) to eight (8)

months’ incarceration for criminal mischief; and one (1) to two (2) years’

incarceration for the remaining simple assault conviction.        Thus, the court

sentenced Appellant to an aggregate term of nineteen (19) to thirty-eight

(38) years’ imprisonment.3

       Appellant filed a timely pro se notice of appeal on August 27, 2013.

The trial court ordered Appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and Appellant

timely complied.      On April 29, 2014, this Court dismissed the appeal for

failure to file a brief.    On May 29, 2014, Appellant filed an application to

reinstate the appeal. This Court reinstated the appeal on July 9, 2014, and

substitute counsel was appointed.                This Court subsequently granted

Appellant’s application for remand to file a supplemental Rule 1925(b)
____________________________________________


3
  The court subsequently amended the sentence by merging the convictions
for DUI and aggravated assault—DUI. Because the court had originally
imposed the merged DUI sentence concurrently, the amendment made no
change to Appellant’s aggregate term of imprisonment.



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statement.     After the trial court granted Appellant an extension of time,

Appellant filed a timely supplemental Rule 1925(b) statement.4

       Appellant raises a single issue for our review:

          DID THE SENTENCING COURT ERR AS A MATTER OF LAW,
          ABUSE ITS DISCRETION, AND VIOLATE GENERAL
          SENTENCING    PRINCIPLES   WHEN    IT  SENTENCED
          [APPELLANT] 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 CRIMES?

(Appellant’s Brief at 1).

       In his sole issue, Appellant argues he is fifty-six years old and in poor

health.     Appellant contends the trial court effectively imposed a “life

sentence” by making many of Appellant’s sentences run consecutively.

Appellant concedes the individual sentences fall within the standard range of

the Sentencing Guidelines.         Nevertheless, Appellant asserts his aggregate

sentence is disproportionate to his crimes, considering that the victims all

survived and made nearly complete recoveries from their injuries. Appellant

concludes his sentence is manifestly excessive, and this Court should

remand for resentencing.           Appellant’s challenge is to the discretionary

aspects of his sentence. See Commonwealth v. Gonzalez-Dejusus, 994
____________________________________________


4
  On July 15, 2015, the Commonwealth filed its brief late, along with an
unopposed motion to accept the brief as timely filed. We grant the open
motion and accept the Commonwealth’s brief as timely filed.



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A.2d   595        (Pa.Super.    2010)   (explaining   challenge   to   imposition   of

consecutive sentences implicates discretionary aspects of sentencing);

Commonwealth v. Lee, 876 A.2d 408 (Pa.Super. 2005) (stating claim that

sentence     is    manifestly    excessive   challenges   discretionary   aspects   of

sentencing).

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.          Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).           Prior to reaching the merits of a discretionary

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) (internal citations omitted).

Objections to the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or raised in a motion to modify

the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d

788 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

       When appealing the discretionary aspects of a sentence, an appellant

must also invoke the appellate court’s jurisdiction by including in his brief a


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separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 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.’”      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) (quoting Commonwealth v. Williams, 562 A.2d

1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)).             “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.” Sierra, supra at 912-13 (quoting Commonwealth v.

Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567

Pa. 755, 790 A.2d 1013 (2001)).

        “Generally, Pennsylvania law ‘affords the sentencing court discretion to

impose its sentence concurrently or consecutively to other sentences being


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imposed at the same time or to sentences already imposed. Any challenge

to the exercise of this discretion ordinarily does not raise a substantial

question.’” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)

(quoting Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.

2006)).      See also Commonwealth v. Hoag, 665 A.2d 1212, 1214

(Pa.Super. 1995) (stating defendant is not entitled to “volume discount” for

his   crimes   by   having   all    sentences      run    concurrently).        But   see

Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super. 2008), appeal

denied, 602 Pa. 662, 980 A.2d 605 (2009) (holding consecutive, standard

range sentences on thirty-seven counts of petty theft offenses for

aggregate sentence of 58½ to 124 years’ imprisonment constituted virtual

life sentence and was so manifestly excessive as to raise substantial

question).     “Thus, in our view, the key to resolving the preliminary

substantial    question   inquiry    is    whether       the   decision    to   sentence

consecutively raises the aggregate sentence to, what appears upon its face

to be, an excessive level in light of the criminal conduct at issue in the case.”

Prisk, supra at 533.      But see Commonwealth v. Austin, 66 A.3d 798

(Pa.Super. 2013), appeal denied, 621 Pa. 692, 77 A.3d 1258 (holding that

challenge to imposition of consecutive sentences, which yields extensive

aggregate sentence, does not necessarily present substantial question as to

discretionary aspects of sentencing, unless court’s exercise of discretion led

to sentence grossly incongruent with criminal conduct at issue and patently


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unreasonable).

      On appeal, this Court will not disturb the judgment of the sentencing

court absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d

843 (Pa.Super. 2006).

         [A]n abuse of discretion is more than a mere error of
         judgment; thus, a sentencing court will not have abused
         its discretion unless the record discloses that the judgment
         exercised was manifestly unreasonable, or the result of
         partiality, prejudice, bias or ill-will. In more expansive
         terms, our Court recently offered: An abuse of discretion
         may not be found merely because an appellate court might
         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.

Commonwealth v. Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007)

(internal quotation marks and citations omitted).      “Where the sentencing

court imposes a sentence within the guideline range, we must review to

determine whether the trial court’s sentence is ‘clearly unreasonable.’”

Dodge, supra at 1200 (citing 42 Pa.C.S.A. § 9781(c)(2)).

      Instantly, Appellant failed to object to his sentence at imposition or to

file a post-sentence motion.    Therefore, Appellant waived his challenge to

the discretionary aspects of his sentence.     See Mann, supra.      Moreover,

assuming without deciding Appellant’s claim even raises a substantial

question, the trial court explained its sentencing decision as follows:

         The evidence introduced at trial established that Appellant
         drove his car through a crowd of children, injuring several
         of them severely. Despite warning cries from assembled
         neighbors, Appellant drove through a blocked-off street

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       and into the crowd. When stopped by concerned citizens
       and an off-duty police officer, [Appellant] threatened them
       with a hatchet until physically restrained. The evidence
       further showed that Appellant had forty-two (42)
       nanograms of PCP in his bloodstream….

       At trial, Appellant did not admit responsibility for his
       actions and instead testified that he had suffered mini-
       strokes in 2011 and heart attacks in 2009 and 2010 as a
       result of pulmonary artery narrowing, and that, on the day
       of the incident, he suffered another mini-stroke while
       driving. He testified he did not remember anything from
       the time he began driving until the time he woke up in the
       hospital. He testified that although he had taken PCP
       three (3) days prior to the incident, he had not taken PCP
       on the day of the incident.        Appellant testified that
       although he had a drug problem “for years…no one tried to
       help [him].” However, the only evidence of his strokes in
       the medical records provided to the [c]ourt were self-
       reported by Appellant himself.

       At sentencing, this [c]ourt heard evidence that Appellant
       had had a difficult childhood and suffered from years of
       drug addiction. Appellant had a prior record score of four
       (4) and two convictions for selling drugs, as well as arrests
       for violations of Protection from Abuse (“PFA”) orders and
       for aggravated assault. He was first arrested at age fifteen
       (15) and at the time of trial, was fifty-six (56) years old.
       Appellant suffered from uncontrolled blood pressure,
       coronary and peripheral artery disease, chest pain, heart
       palpitations, hernias and foot ulcers. Appellant argued
       that his actions on that day were an aberration brought on
       by stroke symptoms, despite the fact that he had also
       ingested PCP and admitted to ingesting PCP.

       However, this [c]ourt also heard testimony from Andre
       Clark’s family regarding the effects the accident had on his
       life. He no longer enjoys going out and playing, and is
       mocked because he is slower physically than other children
       and “in other ways.” The family noted that Appellant had
       not shown any remorse throughout the entire court case.
       This [c]ourt also heard Appellant’s allocution, in which he
       stated that he was sorry, but also that he did not
       understand what PCP and pulmonary artery disease had

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        been doing to his body. However, despite his apologies,
        he still insisted that he had not used PCP on the day of the
        incident and that he had suffered a stroke while driving.

        In fashioning Appellant’s sentence, this [c]ourt considered
        all of the testimony and evidence offered, including the
        pre-sentence investigation report and mental health
        evaluation, and took note that neighbors yelled at
        Appellant to slow and stop, and he ignored these
        warnings; the injuries and lasting effects suffered by the
        four (4) child victims who had been hospitalized; Appellant
        swinging a hatchet at a police officer; and that the only
        reason Appellant stopped was because his car was forcibly
        rammed by Officer Ross.           This [c]ourt found that
        Appellant’s drug abuse had spiraled out of control to such
        a point that the community was not safe from him;
        Appellant’s lengthy criminal record was concerning; and
        that    Appellant[]   needed     rehabilitation,  but    such
        rehabilitation could not be effectuated outside of a prison.

        Thus, Appellant’s sentence of nineteen (19) to thirty-eight
        (38) [years’ incarceration] was appropriate considering the
        gravity of his offense, his history of addiction and need for
        rehabilitation, and the need to protect the community, and
        this [c]ourt did not abuse its discretion.

(Trial Court Opinion, filed December 3, 2014, at 11-12). The record shows

the court appropriately considered the relevant sentencing factors and

thoroughly detailed its reasons for the sentence imposed, including the

violent nature of the crimes against multiple victims and Appellant’s history

of criminal activity and drug abuse.   Thus, even if Appellant had properly

preserved his sentencing challenge and raised a substantial question, we

would see no grounds to disturb Appellant’s standard range sentences. See

Walls, supra; Dodge, supra. Accordingly, we affirm.

     Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015




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