J.S43017-14

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA,    IN THE SUPERIOR COURT OF
                                       PENNSYLVANIA
                  Appellee

                   v.

PACURIE HUYNH,


                        Appellant                   No. 2872 EDA 2013


      Appeal from the Judgment of Sentence entered August 2, 2013,
            in the Court of Common Pleas of Delaware County,
          Criminal Division, at No(s): CP-23-CR-0001195-2013

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD*, JJ.

DISSENTING STATEMENT BY FITZGERALD, J.:           FILED AUGUST 20, 2014



judgment of sentence because, in my view, the record did not support the




impose a statutory maximum sentence of three and a half to seven years, I

would remand this matter for resentencing.

     Instantly, the Commonwealth charged Appellant with one count of

accidents involving death and one count of failing to give information or

render aid, a summary offense.      Appellant pleaded guilty to the accidents

involving death count, and the summary count was dismissed after

sentencing.   As to accidents involving death, the Sentencing Guidelines

recommended a standard minimum range term of imprisonment of three to
J.S43017-14

twelve months with an add



sentence of twelve months. See 75 Pa.C.S. § 3742(b)(3).

      At the sentencing hearing, Appellant requested that the trial court

impose a mandatory minimum sentence of one year based on mitigating

factors. N.T., 8/2/13, at 11-14. Appellant stressed the accidental nature of



thoroughfare at 2:53 a.m. on July 4, 2012. Appellant also emphasized that

he had no prior record, that his guilty plea evinced his taking responsibility

for the accident, and that he expressed remorse to the family of the victim.

The Commonwealth recommended the statutory maximum sentence. 1              Id.

at 15-20.   Th

testimony regarding the agony of caring for the victim before his death

nearly 8 months after the accident2

responsibility for the accident for 236 days.


1
   The Commonwealth also noted that after Appellant committed the
underlying offense, the General Assembly increased the grade of the offense
from a third-degree felony to a second-
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                                                                ex post facto
concerns, there is no indication in the record that the trial court relied upon
it when sentencing.
2



nothing compared to what Tommy [the victim] and my family experienced
                     Id. at 8.



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                           Id. at 24-26



law enforcement resources used to investigate and apprehend Appellant,

                                              Id. at 26-27.

      The cou



         Society as a whole needs to know that killers will not be
         permitted to consciously leave a human being lying in the
         street to die and then just walk away with minimum

         of stiff penalties, that is penalties that have real, not semi-
         imaginary consequences.

Id.

      Following a review of the record, I find a proper evidentiary basis for



responsibility for the accident at an earlier time and his affirmative attempt



conduct after the accident was callous.      Lastly, it is undisputed that the




a menace to society and was not amenable to rehabilitation lacks proper

evidentiary support. Appellant pleaded guilty, had no prior record, and was


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J.S43017-14

employed.   Accordingly, I discern no basis supporting the conclusion that

Appellant posed a continuing threat to society or was beyond rehabilitation.

      While the trial court cited other proper reasons for departing from the



the unsupported finding that Appellant poses a threat to society and is not

amenable to rehabilitation was harmless in light of its decision to impose the

statutory maximum sentence.        Thus, I would vacate the judgment of

sentence and remand for resentencing.




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