J-S54029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

PAULINE REDONGGO-BEFFERT

                            Appellant                  No. 402 EDA 2015


            Appeal from the Judgment of Sentence January 23, 2014
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0001480-2013


BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 13, 2015

        Appellant, Pauline Redonggo-Beffert, appeals from the judgment of

sentence entered January 23, 2014,1 in the Court of Common Pleas of Bucks

County, following her open guilty plea to voluntary manslaughter, two

counts of recklessly endangering another person, homicide by vehicle while

driving under the influence, homicide by vehicle, aggravated assault by




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Appellant purports to appeal from the order denying her post-sentence
motions. We have corrected the caption to reflect that Appellant’s appeal
properly lies from the judgment of sentence entered on January 23, 2014.
See, e.g., Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa.
Super. 2003) (en banc).
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vehicle, two counts of driving under the influence, reckless driving, failure to

drive at safe speed, and following too closely.2 We affirm.

       The factual basis for Appellant’s guilty plea, as set forth at the

sentencing hearing, is as follows.

            [On July 31, 2011,] around 2:17 in the morning, Bristol
       Township Police responded to a two-vehicle crash in the area of
       the 6600 Block of New Falls Road in Bristol Township, Bucks
       County.

             An investigation revealed a 2010 Chevrolet Camaro
       operated and owned by the Appellant was being operated at a
       high rate of speed and struck a [motorcycle] in the same lane of
       travel going eastbound on New Falls Road. The driver of the
       motorcycle, Michael Martell, suffered serious injuries as a result.
       The passenger, Janelle Cook, suffered fatal injuries.

              Mr. Martell recalled driving eastbound on New Falls Road in
       the left-hand lane. He remembered checking to see if it was
       clear, and after it was, switching to the right lane. He continued
       in the right lane. Shortly thereafter, he was suddenly hit from
       behind. He stated for a split second he could hear the car
       behind him and remembers being airborne, covering his head
       when he hit the ground, rolling down the highway until he came
       to a stop.

              New Falls Road in the area is two lanes of travel in each
       direction. It includes a multiple line of lights in the area of ‘Five
       Points’ in Bristol Township. There are also residential areas near
       that area, a shopping center, and convenience stores. The
       speed limit in that area is 40 miles an hour.

            The Appellant was taken to St. Mary’s Hospital. Her blood
       was drawn with her consent. It tested for a .086 BAC.


____________________________________________


2
  18 Pa.C.S.A. §§ 2504(a) and 2705; 75 Pa.C.S.A. §§ 3735(a), 3732(a),
3735.1(a), 3802(a)(1), 3802(a)(2), 3736(a), 3361, and 3310(a),
respectively.



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            Mechanical inspections were conducted after the crash
      revealing no mechanical defects that would have been a
      contributing factor to the crash.

            A data record was located in the Camaro and was
      searched. … It revealed that 2.5 seconds before the crash it
      [the Camaro] was traveling 91 miles an hour; one second before
      the crash, 85 miles an hour; and half a second before the crash,
      76 miles an hour.

            Minutes before the crash, Judy Bowman and Lloyd Yann[]
      were driving eastbound on New Falls Road, and reported the
      following: That at the intersection of Newportville and Falls Road
      they were stopped at a red light and the defendant’s vehicle
      approached them at a high rate of speed. In that specific area
      there is one lane of travel in each direction. When the light
      turned green they proceeded through the light. The car behind
      them began to tailgate them, flash its high beams, and swerved
      over the double-yellow line off the roadway on the other side.
      When the road switched from one to two lanes, the Appellant’s
      vehicle immediately moved to the right lane that opened up and
      drove past them at a high rate of speed. They observed the
      Appellant’s vehicle run a steady red light in the area of the
      Oxford Valley Road and New Falls Road at a high rate of speed.
      The crash occurred approximately one mile after this, and they
      were able to maintain somewhat of a visual contact with the car,
      but lost it right before the crash happened.

N.T., Sentencing, 1/23/14 at 5-8.

      On November 14, 2013, Appellant entered an open guilty plea to the

aforementioned charges.     On January 23, 2014, the trial court sentenced

Appellant to four to eight years in prison for homicide by vehicle while DUI, a

concurrent term of three to six years in prison for homicide by vehicle, and a

consecutive two to four years for aggravated assault by motor vehicle. The

aggregate sentence imposed amounted to a term of six to twelve years’

imprisonment.    Appellant filed a timely appeal and this Court permitted

Appellant’s counsel to withdraw his representation in this matter. The trial

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court appointed the Bucks County Office of the Public Defender to represent

Appellant.

        Appellant subsequently withdrew her direct appeal and filed a Post

Conviction Relief Act3 petition alleging previous counsel was ineffective for

failing to file a post-sentence motion. By the agreement of the parties, the

PCRA court reinstated Appellant’s post-sentence rights nunc pro tunc.

Appellant thereafter filed a Motion to Modify and Reconsider Sentence in the

lower court, which the court denied following a hearing. This timely appeal

followed.

        Appellant’s issues on appeal challenge the discretionary aspects of her

sentence. Preliminarily, we must determine whether Appellant has perfected

the right to seek permission to appeal the sentencing court’s exercise of its

discretion. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010).      When an appellant challenges the discretionary aspects of his

sentence, we utilize a four-part test 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).

Id. (internal citations omitted).
____________________________________________


3
    42 Pa.C.S.A. §§ 9541-9546.



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       Here, Appellant filed a timely appeal and challenged her sentence in a

post-sentence motion. Appellant’s appellate brief also contains the requisite

2119(f) concise statement.4 In that statement, Appellant contends that the

sentencing court failed to state adequate reasons on the record for imposing

a sentence in the aggravated range of the sentencing guidelines for her

conviction of homicide by vehicle while DUI.      See Appellant’s Brief at 10.

Appellant also claims that the sentencing court failed to state sufficient

reasons on the record for imposing a sentence that exceeded the aggravated

guideline range for aggravated assault by motor vehicle.5      See id.   These

claims raise a substantial question for review. See Commonwealth v.

Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008) (claim that the trial court

imposed sentences in the aggravated range without stating sufficient

reasons on the record, such a claim constitutes a substantial question for our

review); Commonwealth v. P.L.S., 894 A.2d 120, 127 (Pa. Super. 2006)

(claim that trial court failed to adequately state on the record its reasons for

imposing a sentence exceeding the guideline range raises a substantial

question).
____________________________________________


4
  Although Appellant has failed to include in her brief a separate Rule 2119(f)
statement, she has included in the argument section of her brief a section
titled “Concise statement of reasons relied upon in support of appeal.”
Appellant’s Brief at 15-16.
5
  Although Appellant contends that the court’s sentence on aggravated
assault by motor vehicle exceeded the aggravated range of the sentencing
guidelines, the sentence did not exceed the maximum sentence permitted.



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      “Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a

manifest abuse of discretion.”      Commonwealth v. Vega, 850 A.2d 1277,

1281 (Pa. Super. 2004) (citation omitted).

      Initially, we note that “[i]f the sentence is within the aggravated

range, the sentencing court is … required to state its reasons for choosing an

aggravated sentence on … the record….” Commonwealth v. Rodda, 723

A.2d 212, 217 (Pa. Super. 1999) (en banc) (citation omitted). In addition,

“the sentencing guidelines are advisory, and when justified, a court acts well

within its discretion to sentence outside the recommended ranges.” P.L.S.,

894 A.2d at 128 (citation omitted).

      [I]n exercising its discretion, the sentencing court may deviate
      from the guidelines, if necessary, to fashion a sentence which
      takes into account the protection of the public, the rehabilitative
      needs of the defendant, and the gravity of the particular offenses
      as it relates to the impact on the life of the victim and the
      community, so long as he also states of record the factual basis
      and specific reasons which compelled him to deviate from the
      guideline range. The sentencing guidelines are merely advisory
      and the sentencing court may sentence a defendant outside of
      the guidelines so long as it places its reasons for the deviation
      on the record.

Id. at 130-131 (citation omitted).

      There is no merit to Appellant’s claims.       Our review of the record

reveals   that   the   sentencing    court   discussed   at   great   length   the

circumstances warranting an aggravated range sentence, as well as an

upward departure from the sentencing guidelines, including the nature and



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character of the Appellant, the need to deter future criminal behavior, and

the impact on the victim. The sentencing court explained as follows.

            Well, I know that [the decedent’s mother,] Mrs. Cook
     asked me to impose the maximum, and I know that your lawyer
     asked me to impose the minimum, and they’re not easy cases. I
     think the lawyers all agree, and nobody would want to have to
     make the decision that I’m going to have to make and expect
     that either side or both sides would find it to be appropriate. I
     understand that because what’s been described for me, as was
     characterized by Mrs. Cook, was a true tragedy. I think we can
     all agree on that.

          I have to consider a number of things when imposing
     sentence, and I think I need to go over them with you so you
     know why I have come to the conclusion that I believe is
     necessary.

            First, I have to consider the impact this case has upon the
     victim…. Certainly, there can be no greater impact than death,
     no greater impact that what Mr. Martell has suffered in terms of
     repeated surgeries and long-standing pain and suffering,
     emotion and physical scars that he’ll carry with him for the rest
     of his days as well, and that doesn’t even take into consideration
     the impact it’s had on the victim’s family, and I’ll come back to
     that in a few minutes, but I want to make you focus on the list of
     things I have to consider.

           As I said, the impact upon the victim. I need to consider
     the facts of the case which are quite simply summed up by the
     Commonwealth very well, 92 miles an hour in a 40 miles an hour
     zone at a .06 -- .86, excuse me. So I have to consider the facts
     of the case as well.

N.T., Sentencing, 1/23/14 at 69-70.    After noting the applicable guideline

ranges, the court continued:

           So I’ve considered all the guidelines and the facts of the
     case as has been recited by the Commonwealth. I’ve considered
     what’s in the Presentence Report, which has been made
     available to counsel, and of course we know that that report is
     comprehensive and thorough.

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           I have to consider, also, the need to deter you and others
     from committing this crime, and I -- this type of crime or any
     crime for that matter, I have to consider the nature and
     character of the defendant, and so on balance, when I consider
     all those things, you can understand that this may take a few
     minutes and there’s a great deal of information that I have and a
     great deal of information that I need to consider.

            The nature and character … of the defendant is clearly
     defined in the Presentence Report, the letters that I received,
     the witnesses that I heard from, most notably your fiancé or ex-
     husband, your son, your daughter, and what they reflect is that
     you are a kind and caring partner, completely contrary to what
     was described by Mr. Martell. So I don’t really know what
     happened, but I am fairly confident that Mr. Martell’s
     characterization of you as a cold and callus person that night
     may have been his perception, but it may have been an
     aberration.    We will never know, but clearly, he describes
     someone who is more interested in herself than with the victim,
     and I find it important, not just for this case, but I find your
     testimony in that regard important because while Mr. Martell
     didn’t say it, he kept telling people to take care of Janelle. And
     so I think, you know, from that perspective you’re there, there’s
     an accident scene, and while you don’t have any -- from what I
     read in the Presentence Report, in the letters, you have some
     basic, perhaps, medical training as a phlebotomist or assistant, I
     just find it really disturbing that this young woman was lying
     there and nobody helped her, and I can’t get over the 92 miles
     an hour in a 40 mile an hour speed limit.

                                  *         *   *

           I can discuss all of the reasons for the sentence with you.
     I could go on and describe in more detail the things that will
     affect people going forward, but I think, really, when it comes
     down to it, 92 miles an hour in a 40 mile an hour zone at a .086.
     It was not only irresponsible, it was just senseless, and as Mrs.
     Cook has pointed out, it’s a parent’s wors[t] nightmare.

           As your counsel pointed out, and rightfully so, everyone,
     you know, there but for the grace of God, go I. Everybody on
     the road was at risk, everybody that night. Unfortunately,
     Michael Martell and Janelle Cook were in the wrong place at the
     wrong time, through no fault of their own, and through only your
     fault do we find ourselves all here gathered together for me to


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       try to figure out what is best for you and the victims in this case,
       and I can tell you, there’s no good answer to that question. It’s
       a tragedy, a tragedy that nobody can fix, that nobody can make
       better.

Id. at 71-73, 76-77.

       Despite Appellant’s assertions to the contrary, the record clearly

evidences that the sentencing court made a sufficient contemporaneous

statement when imposing Appellant’s sentences.           We further acknowledge

the court’s consideration of the presentence investigation report. Where the

sentencing court had the benefit of reviewing a pre-sentence report, we

must

       presume that the sentencing judge was aware of relevant
       information regarding the defendant's character and weighed
       those considerations along with mitigating statutory factors. A
       pre-sentence report constitutes the record and speaks for itself.
       In order to dispel any lingering doubt as to our intention of
       engaging in an effort of legal purification, we state clearly that
       sentencers are under no compulsion to employ checklists or any
       extended or systematic definitions of their punishment
       procedure. Having been fully informed by the pre-sentence
       report, the sentencing court’s discretion should not be disturbed.
       This is particularly true, we repeat, in those circumstances where
       it can be demonstrated that the judge had any degree of
       awareness of the sentencing considerations, and there we will
       presume also that the weighing process took place in a
       meaningful fashion. It would be foolish, indeed, to take the
       position that if a court is in possession of the facts, it will fail to
       apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing

Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)).

As the sentencing court in this case had the benefit of a pre-sentence report,




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we presume that he considered all relevant sentencing factors and fashioned

an individualize sentence.

      Based on all of the foregoing, we are satisfied that the sentencing

court sufficiently stated its reasons for the sentences imposed and

adequately articulated the aggravated circumstances justifying both an

upward departure from the recommended sentencing guidelines and the

sentence in the aggravated range of the guidelines.   We therefore find no

abuse of discretion in the sentence imposed.

      Appellant next argues that the sentencing court erred in imposing the

sentences for aggravated assault by motor vehicle and homicide by vehicle

while DUI to run consecutively. We note that “the imposition of consecutive,

rather than concurrent, sentences may raise a substantial question in only

the most extreme circumstances, such as where the aggregate sentence is

unduly harsh, considering the nature of the crimes and the length of

imprisonment.”      Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.

Super. 2012) (en banc), appeal denied, 75 A.3d 1281 (Pa. 2013) (citation

omitted). Based upon our review of the record and the sentencing court’s

explanation of the reasons supporting the sentences imposed, we do not find

such extreme circumstances here.

      Lastly, Appellant contends that the trial court allegedly considered

impermissible sentencing factors.   See Appellant’s Brief at 20.   Although

Appellant included this claim in her Rule 1925(b) statement, our review of

the record reveals that Appellant did not raise this claim in her Motion to

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Modify and Reconsider Sentence, filed December 23, 2014. See Motion to

Modify and Reconsider Sentence, 12/23/14 at ¶7 (arguing only that “the

[c]ourt exceeded in sentencing her in the aggravated range” and “that the

[c]ourt abused its discretion in sentencing Petitioner consecutively and by

exceeding the aggravated range of sentences.”).       As Appellant did not

preserve this argument in the court below either at sentencing or in her

post-sentence motion, it is not subject to our review. See Commonwealth

v. Tejada, 107 A.3d 788, 799 (Pa. Super. 2015), appeal denied, --- A.3d -

-- (Pa., Aug. 3, 2015).

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2015




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