J. S02013/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                  v.                   :
                                       :
STANLEY DAVID KAMINSKI, JR.,           :         No. 1775 EDA 2016
                                       :
                       Appellant       :


          Appeal from the Judgment of Sentence, March 21, 2016,
              in the Court of Common Pleas of Bucks County
             Criminal Division at No. CP-09-CR-0007134-2015


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED FEBRUARY 28, 2017

     Stanley David Kaminski, Jr., appeals the judgment of sentence in

which the Court of Common Pleas of Bucks County, following an open guilty

plea, sentenced him to serve an aggregate term of 7 to 14 years’

imprisonment for homicide by vehicle while driving under the influence

(“DUI”), two counts of aggravated assault while DUI, and DUI.1




1
  75 Pa.C.S.A §§ 3735(a), 3735.1(a), and 3802(d)(3), respectively. He also
received two years’ probation for two counts of recklessly endangering
another person, 75 Pa.C.S.A. § 2705. Appellant pled guilty but received no
further penalty for homicide by vehicle, two counts of aggravated assault by
vehicle, involuntary manslaughter, and three counts of recklessly
endangering another person. 75 Pa.C.S.A. §§ 3732(a) and 3732.1(a), and
18 Pa.C.S.A. §§ 2504(a) and 2705, respectively.
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      As the trial court related, appellant’s plea included an admission to the

following facts:

                   . . . On July 1st of 2015 at 9:18 p.m. a
                   single-vehicle crash occurred in the
                   southbound lanes of Route 309 bypass in
                   West Rockhill, Bucks County. Pennridge
                   Regional police and emergency personnel
                   were dispatched to the location.

                   They were dispatched as a result of a
                   911 call from John and Paul Hasyn,
                   H-A-S-Y-N, who were driving their
                   vehicle on Route 309 in the same
                   direction    as     [appellant],  when
                   [appellant’s] vehicle lost control and
                   almost hit the Hasyn’s vehicle directly
                   head on before leaving the roadway.

                   Upon arrival the police observed a green
                   2005 Saturn in the trees off the
                   roadway.       The vehicle was some
                   20 yards into the wooded area.       The
                   Saturn was observed with extensive
                   damage to the front, rear and driver’s
                   side of the vehicle.

                   . . . [T]he vehicle went off the roadway
                   in the wooded area where the vehicle
                   ultimately came to a stop.

                   The Saturn was occupied by four
                   subjects.    The    driver,   who    was
                   [appellant], Todd Rubin, Jacob Winter
                   and Summer DeCastro. Todd Rubin was
                   seated in the front passenger seat of the
                   Saturn and was pronounced deceased at
                   the scene due to the injuries suffered in
                   the crash.     The driver and remaining
                   passengers . . . all required mechanical
                   extrication to remove them from the car.




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               . . . [T]he entire roof of the car had to be
               cut off to remove the occupants of the
               vehicle. The responding fire department
               removed the occupants and they were
               taken to the hospital for serious injuries.
               Jacob Winter was interviewed at the
               hospital. Winter was seated in the back
               seat passenger’s side of the Saturn,
               Summer DeCastro was in the back seat
               of the driver’s side.

               Winter stated that the four had recently
               left a party where they had been
               drinking. He told police that once on 309
               [appellant] began driving fast.     When
               Winter observed the speedometer hit
               90 miles an hour he asked [appellant] to
               slow down.       Rather than slow down
               [appellant] began        to  drive  faster
               reaching speeds of up to 110 miles per
               hour, twice the posted speed limit of 55
               miles an hour. Winter stated that he felt
               the car slide off of the roadway and then
               he hit a ditch.

               Next thing he remembered was the fire
               department cutting the roof off [the] car.
               As a result of the crash Jacob Winter was
               hospitalized with a broken neck which
               required surgery to put rods in his neck
               to stabilize his injury.      Winter also
               suffered from a severe concussion,
               broken right arm in four places, which
               required surgery to implant rods and
               plates. He also fractured his hip, which
               was dislocated from the impact of the
               crash.

               ...

               Summer DeCastro . . . suffered a severe
               concussion, a broken collar bone,
               fractured vertebrae, fractured pelvis,



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               three fractured ribs, lacerations to her
               legs and her hip was dislocated.

               The autopsy of Todd Rubin revealed that
               Rubin suffered several lacerations to his
               face and scalp.        He also suffered
               numerous fractures to his vertebrae
               causing significant damage to the
               enclosed spinal cord causing a fatal
               hemorrhage about his brain. Rubin also
               suffered fractures to his ribs, bruised and
               lacerated lungs and a large right
               hemithorax.

               ...

               The autopsy was conducted by Dr. Ian
               Hood, forensic pathologist, and he
               determined the cause of death to be
               determined by multiple fatal injuries
               suffered during the crash.

               [Appellant’s] blood was secured through
               implied consent. The blood was tested
               through the Bucks County Crime Lab and
               alcohol was present at . . . .128 percent.
               His blood was also tested by National
               Medical Services and tested positive for
               marijuana, both the active ingredient and
               metabolites and for synthetic marijuana.

               Dr. Patel, a forensic toxicologist, would
               opine that [appellant] was under the
               influence of drugs and alcohol to a
               degree that would impair his ability to
               drive safe[l]y. Officer Tim Maloney, he’s
               a sergeant with the Pennridge Regional
               Police Department, conducted a crash
               reconstruction in this case.

               Sergeant Maloney determined that the
               defendant was driving between 89 and
               99 miles per hour at the point when the
               Saturn crashed into the ditch, which was


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                   already off the road and losing
                   momentum going down a slight hill,
                   hitting a number [of] trees before the
                   vehicle came to its final resting place.
                   The vehicle actually went airborne when
                   it struck a number of those trees.

                   There were no mechanical defects of the
                   Saturn or the roadways which could have
                   contributed to the causation of this
                   crash. While incarcerated at the Bucks
                   County Correctional Facility and prior to
                   the preliminary hearing in this case,
                   [appellant] had asked the victim,
                   Jacob Winter, to tell the police that he
                   had lied about speeding at 110 miles an
                   hour to help [appellant] out in his
                   criminal case.

            N.T. 3/21/16, pp. 20-26.

Trial court opinion, 7/12/16 at 2-3.

      Following sentencing, appellant filed a motion for reconsideration of

sentence which the trial court denied after a hearing on May 9, 2016.

      Appellant raises the following issue for this court’s review:

            Did the sentencing court abuse its discretion by
            sentencing [a]ppellant to serve an aggregate
            sentence of not less than seven years nor more than
            fourteen years of incarceration in a state correctional
            facility by not considering mitigating evidence and
            relying on factors that were already contemplated by
            the available sentencing guidelines?

Appellant’s brief at 4.

            [T]he proper standard of review when considering
            whether    to   affirm  the   sentencing     court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have


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            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.

            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.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [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).



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Moury, 992 A.2d at 170 (citation omitted).

      Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging his sentence.

First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902

and 903. Second, appellant raises an issue that the trial court abused its

discretion when it failed to consider mitigating factors and relied on factors

that were already accounted for in the sentencing guidelines. A review of

the record reveals that appellant did not raise this issue at sentencing. In

his   motion   for   reconsideration,   appellant   recounts   his   charges   and

convictions and requests reconsideration of the sentence.               However,

appellant does not raise the issue that he brings to this court for review. As

a result, because appellant did not raise this issue at sentencing or in his

post-sentence motion, it is waived even though the trial court addressed the

issue in its opinion.   See Commonwealth v. Tejada, 107 A.3d 788, 799

(Pa.Super. 2015) (holding that where an appellant fails to preserve

discretionary aspects of sentencing claims at sentencing or in a post-

sentence motion, those claims are not subject to appellate review).

Consequently, this court does not have jurisdiction to address appellant’s

challenge to the discretionary aspects of his sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/2017




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