J-S26014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    ROYCE ATKINS,

                             Appellant                No. 2316 EDA 2017


         Appeal from the Judgment of Sentence Entered June 26, 2017
            In the Court of Common Pleas of Northampton County
             Criminal Division at No(s): CP-48-CR-0000142-2016


BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                                  Filed July 20, 2018

        Appellant, Royce Atkins, appeals from the judgment of sentence of four

to ten years’ imprisonment, imposed after a jury convicted him of accidents

involving death or personal injury, 75 Pa.C.S. § 3742(a). We affirm.

        The trial court summarized the factual background and procedural

history of this case, as follows:

        I. Criminal Charges

             On Friday, November 6, 2015, at approximately 6:30 p.m.,
        [Appellant] was operating his blue 2007 MazdaSpeed 3 near the
        3300 block of Schoenersville Road in Bethlehem, Pennsylvania.
        [Appellant] struck nine[-]year[-]old Darious Condash (“Condash”)
        as Condash crossed Schoenersville Road with two friends.
        Condash was pronounced dead at St. Luke’s Hospital that evening.
        [Appellant] did not stop at the scene of the accident, although he
        was aware that his vehicle had struck an object. Rather, he
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S26014-18


        continued traveling on Schoenersville Road and pulled into a
        restaurant parking lot. He reportedly saw traffic continuing to
        travel northbound along Schoenersville Road and “assumed
        everything was okay.” [Appellant] testified that he originally
        believed that he had hit a pothole or the center median.
        [Appellant] subsequently returned to his parents’ home on Kathi
        Drive in Bethlehem, Pennsylvania[,] and parked his vehicle in their
        garage.

              Later that night, [Appellant] hosted a party at his parents’
        residence.    He showed his damaged vehicle to Ian Quire,
        Roosevelt Rebimbas, and Shane Brown and explained that he
        thought he had hit a deer on Steuben Road. Quire saw reports of
        a hit-and-run accident on Shoenersville Road that evening. On
        the following Monday, Quire anonymously reported [Appellant] to
        the police.

              Responding to this anonymous tip, Detective Gary Hammer
        of the Colonial Regional Police Department went to [Appellant’s]
        parents’ home on Monday, November 9, 2015. He observed
        [Appellant’s] damaged vehicle through the garage window.
        Detective Hammer interviewed [Appellant] at his place of
        employment that afternoon. [Appellant] readily admitted his
        involvement in the accident, but, in his written statement to
        police, [Appellant] claimed that he initially thought he had hit a
        median in the road.

        II. Trial

              A jury trial commenced on October 31, 2016. The jury
        received the case on November 3, 2016[,] and returned its verdict
        the same day. The jury convicted [Appellant] of violating Section
        3742(a) of the Pennsylvania Motor Vehicle Code, Accidents
        Involving Death.[1] [Appellant] was remanded to Northampton
        County Prison to await sentencing.

____________________________________________


1   This statute sets forth, in pertinent part:
        (a) General rule.--The driver of any vehicle involved in an
        accident resulting in injury or death of any person shall
        immediately stop the vehicle at the scene of the accident or as
        close thereto as possible but shall then forthwith return to and in
        every event shall remain at the scene of the accident until he has



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       III. Sentencing

             Sentencing was scheduled for Friday, January 2, 2017.
       Following trial, however, [Appellant] retained new counsel, who
       requested a continuance to prepare for sentencing. We continued
       [Appellant’s] sentencing until March 3, 2017.

               Both [Appellant] and the Commonwealth submitted
       sentencing memoranda.         Attached to the Commonwealth’s
       memorandum was a disc containing the audio recordings of four
       prison telephone conversations, three between [Appellant] and his
       girlfriend, Kristi Berger, and one between [Appellant] and his
       father.     Counsel for [Appellant] received a copy of the
       Commonwealth’s memorandum and a disc of the audio recordings
       of all of the conversations on or about February 21, 2017.

             During the March 3, 2017 sentencing hearing, we heard
       testimony from Condash’s mother and stepfather.           The
       Commonwealth also read into the record a letter from Condash’s
       elementary school counselor. [Appellant] testified on his own
       behalf. [Appellant’s] mother also testified.

          We queried [Appellant’s] defense counsel regarding the
       recorded prison telephone conversations:

          THE COURT: How would you address his – did you listen to
          the prison –

          [Appellant’s counsel]: I did.


____________________________________________


       fulfilled the requirements of section 3744 (relating to duty to give
       information and render aid). Every stop shall be made without
       obstructing traffic more than is necessary.

       (b) Penalties.--
                                               …
       (3)(i) If the victim dies, any person violating subsection (a)
       commits a felony of the second degree, and the sentencing court
       shall order the person to serve a minimum term of imprisonment
       of not less than three years and a mandatory minimum fine of
       $2,500, notwithstanding any other provision of law.

75 Pa.C.S. § 3742(a), (b)(3)(i).


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        THE COURT: Okay, you listened to the calls. How would you
        address his total lack of remorse and his statements
        regarding [the victim’s] family?

        [Appellant’s counsel]: Well, I would address it as I
        addressed it in my memo. Throughout this process there
        has been -- all right, I-

        THE COURT: You said I should not give much weight to the
        statements because he was angry when he made them;
        correct?

        [Appellant’s counsel]: He was angry -- yes.

     [Appellant] and his defense counsel were fully aware of the
     content of the recorded prison telephone conversations on
     February 21, 2017, when they received the audio recordings of
     the telephone calls. Further, the court confirmed with defense
     counsel at sentencing that he was in fact aware of the recorded
     telephone conversations. [Appellant] did not move for recusal,
     did not object under Pennsylvania’s Wiretap Act, and did not file a
     motion in limine prior to or at the time of sentencing.

        Prior to imposing sentence,        we   noted    the   following
     considerations on the record:

        THE COURT: [Appellant], you stand before this [c]ourt after
        having been found guilty by a jury of your peers for the
        crime of accidents involving death. I’ve considered the fact
        that you have no prior criminal record, you are 23 years old
        and single, you have never been married, and you have no
        children. You earned a certificate in automotive and diesel
        technology from Universal Technical Institute in October[]
        2014. Prior to your incarceration you were employed full
        time as an automotive technician with Village Center
        Automotive from May[] 2016[] until October[] 2016. Before
        that you were employed full time as an automotive
        technician with Scott Automotive from November[] 2014 …
        until November[] 2015.

        I have reviewed correspondence from your friends and
        relatives attesting to your good character and describing
        your upbringing.     I have also considered your family
        background and relationships. I have received numerous
        letters regarding your character which have been sent by
        your relatives, friends, and acquaintances. You obviously

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       have caring and loving parents who have supported you
       throughout your life and who continue to support you today.

       Your parents have also been affected by this crime. The
       information provided to me shows that your parents tried to
       help you in any way possible. They even sent you to Oregon
       for your final year of high school in order to attempt to
       distance you from acquaintances they thought were a bad
       influence on you. A factor, therefore, in your favor is the
       support that you have from your parents, your family, and
       your friends.

       I have also considered the statements presented today by
       your family -- I'm sorry. I have also considered the
       statements today provided by [the victim’s] family who
       spoke about their grief and the impact that your crime has
       had on them.

       The Pre-Sentence Investigation concludes that, weighing
       against [Appellant] is the nature and circumstances of the
       instant offense. To [Appellant’s] credit is that he has no
       criminal history, his education, his employment history, and
       the support of his family. When taking all of the above-
       stated information into consideration, prognosis for
       [Appellant’s] community supervision after any period of
       incarceration is stated as fair, end quote.

       Before each of your prison telephone calls you were
       informed that your telephone calls are being recorded. The
       Commonwealth has provided a disc to the Court and to
       defense counsel with your recorded prison telephone calls
       with your girlfriend, Kristi Berger, and with your father. I
       have listened to the prison recorded conversations provided
       by the Commonwealth.

       On January 6, 2017, at 7:50 [a.m.], a call with girlfriend,
       Kristi, [Appellant] says, quote:

          I really hope the judge, he realizes that this shit is
          being blown out of proportion. Like with the other
          family, they are acting like they’re the fucking
          victims. Like, what about my family? My family
          are the fucking victims, too.




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          Then again that day at 2:18 p.m., also with his girlfriend,
          Kristi, talking about his doctor’s appointment for his toe.[2]
          [Appellant] says, quote:

              Well, the district attorney was there and he was,
              like, well, I don't want the sentencing to get pushed
              back because I believe the victim’s family -- the
              victim’s family wants to get closure and that pissed
              me off. I was like, are you fucking kidding me,
              dude. The victim’s family. So that pissed me off a
              lot. And then I -- they just said that it was going
              to get pushed back until [Appellant’s counsel] said
              March 3, and they agreed on that.

          And then again on that day at 6:16 p.m., [Appellant] says:

              I just hate that district attorney.   He’s such an
              asshole.

          On February 17, 2017, again a call with his girlfriend, Kristi.
          Kristi says:

              No, you can’t, like, see anybody. They are setting
              it up that you can’t see any public or anything, that
              you have to go in shackles and stuff.

          And she’s talking about the doctor’s visit.

          And then [Appellant] says, quote:

              Oh, my God, the fucking judge is a piece of shit.
              He’s, like, a real fucking scumbag.

          And then [Appellant] again says at 2:28 [p.m.]:

              There was, like, 20 of them there talking about the
              family members. There was, like, 20 of them.

          Kristi said:

____________________________________________


2 For context, the record shows that Appellant had filed a petition for bail prior
to sentencing, “in large part because of an infected ingrown toenail which
requires specialized treatment.”      See Appellant’s Petition for Furlough,
2/20/2017, at 1 (unnumbered pages). That request was denied. Id. at 2.
Appellant then filed a petition to permit furlough from the prison in order to
attend a medical appointment for his toe. Id.

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          Oh, well, that probably pressured the judge into
          revoking it.

       And then at 4:12 [p.m.], [Appellant] says:

          I don’t know. I was just -- I was just so fucking
          disappointed.      The judge was such a fucking
          dickbag about it and the fucking DA was like, oh,
          cause there was an issue, obviously it was a hit-
          and-run, so that would mean that he would be
          likely to flee so that makes him a flight risk, but
          also because there was concealment involved in
          the crime, that would make it another flight risk
          issue, and all this bullshit. There’s just so much
          bullshit and they just talk out of the their ass like
          crazy. And fucking Phil [(Appellant’s attorney)]
          made a really good point about, like, how if I can’t
          be entitled to bail then no one should be entitled to
          bail. That’s, like, fucking bullshit. But of course
          he’s like, well, there’s only two weeks left, and I’m
          thinking to myself we fucking filed this motion on
          December 23. It’s their fucking fault they didn’t
          figure this shit out, not our fucking fault.

       And then at 5:18 [p.m.,] he says:

          The judge is, like – he’s like, is the prison capable
          of doing this procedure, and I'm like yeah, but
          there’s, like, such a high risk of infection and he’s
          like, well, is there any evidence of there being that
          likelihood, and I’m just thinking to myself, like,
          everyone is sick, like there’s literally everyone’s
          sick. I should have been like, well, what was the
          evidence you had to fucking revoke my bail in the
          first place. I really should have said that. I wanted
          to so bad but, I don’t know, it’s just fucking horse
          shit.

       Then at 9:41 [p.m.] talking about the victim’s family he
       says, quote:

          I really wanted to say to them, like, don’t you
          fucking people have jobs. I really wanted to say
          that to them.



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J-S26014-18


       And then at 10 o’clock [p.m.], talking about the victim’s
       family again, quote:

          I literally have absolutely no remorse for them
          whatsoever anymore. It makes me fucking sick.

       And then at 11:33 [p.m.,] he says:

          The judge was like, he doesn’t even know anything
          about the jail. He’s completely uneducated on,
          like, every single matter about it.

       And then finally on January 15th, the call with his father,
       [Appellant] says, quote:

          I am in here for the most ridiculous shit.

       I’ve considered these recorded prison telephone call
       statements and … [Appellant’s] lack of remorse. There are
       occasions when I as a judge have to guess whether a
       defendant is remorseful. This is not one of those occasions.
       He quite candidly says, quote:

                I literally have absolutely no remorse for
                them whatsoever anymore. It makes me
                fucking sick. I am in here for the most
                ridiculous shit. I really hope the judge
                realizes that this shit is being blown out of
                proportion like with the other family.
                They are acting like they’re the fucking
                victims. Like, what about my family, my
                family are the fucking victims, too.

       And then talking about the victim’s family, he says:

                I really wanted to say to them, like, don't
                you fucking people have jobs. I really
                wanted to say that to them. I am in here
                for the most ridiculous shit.

       I have considered these recorded telephone calls,
       statements, and considering [Appellant’s] lack of remorse,
       the fact that [Appellant] has not shown any remorse after a
       jury of his peers found him guilty beyond a reasonable doubt
       even if he maintains his innocence is indicia of [Appellant’s]
       lack of social conscience. I also believe [Appellant’s] lack of



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       remorse will adversely affect his prospects of being
       rehabilitated.

       In addition, I believe the statements that [Appellant] made
       regarding the [c]ourt and his statement that, quote, I am in
       here for the most ridiculous shit, evidence a total lack of
       respect for the court system and the jury’s verdict and,
       importantly, they serve as a gauge by which I can evaluate
       his character and his potential for rehabilitation. I believe
       that these statements negatively weigh against [Appellant]
       in terms of his character and his potential for rehabilitation.

       [Appellant’s counsel] says that I should not give much
       weight to [Appellant’s] recorded prison calls because he was
       just angry when he made those statements. I think it’s
       actually the opposite. I should consider the statements
       because he was angry when he made them. As the saying
       goes, listen to people when they are angry because that is
       when the real truth comes out.

       I’ve also considered [Appellant’s] repeated efforts of
       concealment. The statute at issue states that, quote, the
       driver of any vehicle involved in an accident resulting in
       injury or death of any person shall immediately stop the
       vehicle at the scene of the accident or as close thereto as
       possible but shall then forthwith return to and in every event
       shall remain at the scene of the accident until he has fulfilled
       the requirements of Section 3744 relating to duty to give
       information and render aid.

       Therefore, under the statute, the crime is complete if the
       defendant is involved in an accident involving death and
       does not remain and give information and does not render
       aid. The statute does not require that the defendant conceal
       his whereabouts and does not require the defendant to
       conceal the vehicle involved in the accident. That’s not
       required by the statute. Because the issue of concealment
       is not required by the statute -- if it was required by the
       statute I could not take that into account on sentencing
       because it would be part of the statute.            Because
       concealment is not a factor required by the statute, it’s a
       factor above and beyond what's required by the statute, I
       can consider that in fashioning a sentence.

       He concealed his vehicle in his garage. He did not drive it
       even though it was operable. He specifically told his friends

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       not to say anything about the damage to his vehicle. For
       three days following the accident[,] he never reported the
       accident to the police. In fact, he never reported the -- he
       never reported the accident to the police. It was only after
       he was confronted by Detective Hammer that he admitted
       that he was involved in the accident. I believe that this
       concealment also is a factor that adversely weighs against
       the character of [Appellant], and [Appellant’s] character is
       a statutory and case law factor that I can take into account
       in crafting a sentence.

       I have considered the effect that the crime has had on the
       family of the deceased victim, Darious Condash. I have also
       considered the effect of [Appellant’s] prison telephone
       statements and the effect that his complete lack of remorse
       have had on the family of Darious Condash. Every day for
       the rest of their lives Darious’s family will be reminded of
       what you did and now they also will be reminded of what
       you said about them.

       The death of a child is the most unnatural event that can
       happen to us as human beings. To quote the author, Jay
       Neugeboren, from his book, An Orphan’s Tale, quote:

          A wife who loses a husband is called a widow. A
          husband who loses a wife is called a widower. A
          child who loses his parents is called an orphan.
          There is no word for a parent who loses a child.
          That’s how awful the loss is.

       No sentence that I can impose on you will serve justice for
       this family. Darious Condash will not attend middle school.
       He’ll not play any sports. He’ll not graduate from high
       school, and college. He’ll not graduate from college. And
       he will never work in a profession. His family will not spend
       Christmas with him this year or any year in the future. Of
       all the people affected by your crime, you will be the least
       affected. You will go to jail. You will serve your time.

       Eventually you will be released. You will return to your
       family. Your complete lack of remorse and your cruel and
       callus [sic] statements regarding Darious’s family are indicia
       of a heartless human being who lacks social conscience.

       I have weighed all the factors in your favor against the
       factors not in your favor. I have considered your age, the

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           information you have given me, the information in the Pre-
           Sentence Investigation, the sentencing memoranda
           submitted by the Commonwealth and defense, the recorded
           prison telephone calls, [Appellant’s] lack of remorse and his
           callus [sic] comments regarding the victim’s family,
           [Appellant’s] character, the gravity of the offense as it
           relates to the effect on the victim and the victim’s family,
           the testimony presented today, the guideline forms,[3] the
           statements made today by [Appellant’s] counsel, counsel
           for the Commonwealth, my observations of [Appellant]
           during all court proceedings, the impact the crime has had
           on the victim’s family, [Appellant’s] family relationships and
           background, the support of his parents, your lack of a prior
           criminal record, your education, your work history, whether
           you are a good candidate for rehabilitation, your potential
           rehabilitative needs, the protection of the public, the need
           to deter future similar conduct, the fact that a lesser
           sentence would depreciate the seriousness of the crime, the
           recommendation of the prosecutor and the effect your crime
           has had on the family of the victim and the community.

        [N.T. Sentencing] at 32-42.


____________________________________________


3   With respect to the guideline forms, the trial court explained:
        [Appellant] had a Prior Record Score of zero. The Pennsylvania
        Sentencing Guidelines provide an Offense Gravity Score of nine
        for the offense of Accidents Involving Death. See 204 Pa. Code §
        303.15. Thus, according, to the Basic Sentencing Matrix, a
        standard range sentence for [Appellant] was a minimum of twelve
        to twenty-four months[’] imprisonment in a State Correctional
        Institution. See 204 Pa. Code § 303.16(a). By statute, however,
        Accidents Involving Death carries a mandatory minimum sentence
        of three years[’] imprisonment in a State Correctional Institution.
        See Pa.C.S.[] § 3742(b)(3)(ii). Given this statutory deviation, the
        mitigated, standard, and aggravated range sentences all provide
        for a minimum sentence of three years[’] imprisonment in a State
        Correctional Institution. Any sentence exceeding the mandatory
        minimum sentence is an above-aggravated range sentence.
Trial Court Opinion (TCO), 9/11/2017, at 20 (some internal citations omitted);
see also N.T. Sentencing, 3/3/2017, at 4-5 (reviewing the guideline form).


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             [Appellant] was then sentenced to serve a term of
       imprisonment, in a State Correctional Institution, for a minimum
       period of four years to a maximum period of ten years.

       IV. Post-Sentence Motions

          On March 13, 2017, [Appellant] timely filed several post-
       sentence motions. We denied [Appellant’s] motions on June 26,
       2017.1
          1  Our Opinion only addressed [Appellant’s] recusal
          argument. See generally Opinion and Order of Court,
          dated June 26, 2017.

       V. Appeal

            [Appellant] filed a timely notice of appeal             to   the
       Pennsylvania Superior Court on July 14, 2017….

TCO at 1-16 (some internal citations omitted).

       After filing his timely notice of appeal, Appellant complied with the trial

court’s order to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).4 The trial court issued an opinion pursuant to

Rule 1925(a) on September 11, 2017, followed by an addendum to that

opinion on November 1, 2017.5


____________________________________________


4 On July 14, 2017, the trial court entered an order directing Appellant to file
a Rule 1925(b) statement within 21 days of its order, i.e., by August 4, 2017.
However, the docket reflects that Appellant did not receive notice of the trial
court’s order until August 7, 2017. Appellant filed his Rule 1925(b) statement
on that same day, along with a petition for an enlargement of time to file his
concise statement, or for the reinstatement of his appellate rights nunc pro
tunc. See Petition, 8/7/2017, at 1 (unnumbered pages). The trial court
granted Appellant’s petition on August 8, 2017.

5 The trial court’s addendum supplemented the case law previously discussed
in its initial Rule 1925(a) opinion with a recent decision from our Supreme
Court. See Addendum to Rule 1925(a) Opinion (Addendum), 11/1/2017, at
3-4.

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      Presently, Appellant raises the following issues for our review:
         1. [] Appellant received an above-aggravated range sentence
            of 4 to 10 years after his conviction for an accidental hit-
            and-run death. Should the Court vacate this unreasonable
            sentence where (1) [] Appellant was not at fault for the
            accident[;] (2) the mandatory minimum sentence exceeded
            the maximum standard range sentence by 1 year[;] (3) []
            Appellant had no prior criminal [record;] and (4) the
            circumstances of his case were no more egregious than a
            typical hit-and-run [accident]?

         2. After his conviction, [] Appellant was recorded making
            disparaging comments about the judge on the prison phone
            system. The judge relied on these calls in part to justify his
            above-aggravated range sentence. Should[] the judge have
            recused himself given his evident bias against … Appellant
            for these concededly intemperate remarks?

Appellant’s Brief at 4.

      In his first issue, Appellant claims that the trial court imposed an

unreasonable sentence because “his minimum sentence exceed[s] the top of

the aggravated Sentencing Guideline range by 1 year even though his offense

was no worse than a typical hit-and-run.” Id. at 16. Appellant argues the

trial court “unduly emphasized the gravity of the offense at the expense of his

legitimate rehabilitative needs.” Id. He explains that “[h]e was not at fault

for the accident, and … was never charged with any crime relating to [the

victim’s] death.” Id. at 18. He further points out that he had no prior criminal

record, and has strong family and community ties. Id. at 19. In addition,

Appellant claims that his purported attempts at concealment and the prison

phone calls do not justify the trial court’s upward departure. See id. at 20.




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       Appellant’s argument challenges the discretionary aspects of his

sentence. This Court has explained:
       Challenges to the discretionary aspects of sentencing do not
       entitle a petitioner to review as of right. Before this Court can
       address such a discretionary challenge, an appellant must comply
       with the following requirements:

          An appellant challenging the discretionary aspects of his
          sentence must invoke this Court’s jurisdiction by satisfying
          a four-part test: (1) whether [the] 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 [the] 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.

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (internal

citation to case law omitted; some brackets added).

       In the case sub judice, Appellant filed a timely notice of appeal and

raised this issue in a post-sentence motion.       His brief includes a concise

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of his sentence pursuant to Rule 2119(f).6

Therefore, we must next ascertain whether Appellant has raised a substantial

question for our review.
____________________________________________


6 We note that Appellant did not place his Rule 2119(f) statement in a separate
section of his brief, but instead included it at the beginning of his argument
section.    See Pa.R.A.P. 2119(f) (“An appellant who challenges the
discretionary aspects of a sentence in a criminal matter shall set forth in a
separate section of the brief a concise statement of the reasons relied upon
for allowance of appeal with respect to the discretionary aspects of a
sentence.”). Nevertheless, we decline to find waiver on this basis. In addition,
the Commonwealth has not objected to this error.

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      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. Further:

         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.

      An appellant making an excessiveness claim raises a substantial
      question when he sufficiently articulates the manner in which the
      sentence violates either a specific provision of the sentencing
      scheme set forth in the Sentencing Code or a particular
      fundamental norm underlying the sentencing process.

      When imposing a sentence, the sentencing court must consider
      the factors set out in 42 [Pa.C.S.] § 9721(b), that is, the
      protection of the public, gravity of offense in relation to impact on
      victim and community, and rehabilitative needs of the defendant.
      And, of course, the court must consider the sentencing guidelines.

Id. (internal citations omitted; brackets in original).

      As stated supra, Appellant claims that the trial court sentenced him to

an above-aggravated range sentence even though his offense was no worse

than a typical hit-and-run accident, and “unduly emphasized the gravity of the

offense at the expense of his legitimate rehabilitative needs.” Appellant’s Brief

at 16.     This claim presents a substantial question for our review.

Commonwealth v. Vega, 850 A.2d 1277, 1280 (Pa. Super. 2004)

(determining that the appellant presented a plausible argument that his

sentence is contrary to the fundamental norms underlying the sentencing

process where he asserted “his sentence is manifestly excessive in that it is

grossly disproportionate to his crime, particularly in light of the facts

surrounding the criminal episode and his background”); see also Caldwell,

117 A.3d at 770 (ascertaining that the appellant’s challenge that his sentence

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was excessive, along with his claim that the trial court failed to consider his

rehabilitative needs upon fashioning the sentence, presented a substantial

question).

      Having concluded that Appellant has presented a substantial question

for our review, we move now to the merits of Appellant’s argument. We apply

the following standard of review:
      When reviewing a challenge to the discretionary aspects of
      sentencing, we determine whether the trial court has abused its
      discretion. We observe:

         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. In this
         context, an abuse of discretion is not shown merely by an
         error in judgment. Rather, the appellant must establish, by
         reference to the record, that the sentencing court ignored
         or misapplied the law, exercised its judgment for reasons of
         partiality, prejudice, bias or ill will, or arrived at a manifestly
         unreasonable decision.

Caldwell, 117 A.3d at 770 (internal citations omitted).

      Further, we note that “[t]he appellate court shall vacate the sentence

and remand the case to the sentencing court with instructions if it finds … the

sentencing court sentenced outside the sentencing guidelines and the

sentence is unreasonable.” 42 Pa.C.S. § 9781(c)(3). We also acknowledge:

      In reviewing the record the appellate court shall have regard for:

         (1) The nature and circumstances of the offense and the
         history and characteristics of the defendant.

         (2) The opportunity of the sentencing court to observe the
         defendant, including any presentence investigation.

         (3) The findings upon which the sentence was based.


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          (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

       We conclude that Appellant’s sentence is not unreasonable. Although

he claims that his offense is a typical hit-and-run, and that the trial court

unduly emphasized the gravity of the offense over his rehabilitative needs,

the record belies these arguments.             Indeed, the trial court considered

Appellant’s rehabilitative needs, determining that the statements Appellant

made on the prison phone calls “negatively weigh against Appellant in terms

of his character and his potential for rehabilitation[,]” and thereby warrant a

lengthier sentence. See TCO at 12 (quoting N.T. Sentencing at 40-41), see

also TCO at 34-35.7

       Appellant also argues that “there is no legal basis to blame [him] for

Condash’s death[,]” and therefore the trial court “cannot justify his sentence

by reference to the victim’s age or the impact of his death on his family

because these factors bear no relation to the offense for which [Appellant]
____________________________________________


7 At the outset, we agree with the trial court that Appellant has waived any
argument about the Commonwealth’s use of the prison phone calls because
he did not object under Pennsylvania’s Wiretap Act, 18 Pa.C.S. § 5704, or file
a motion precluding their use prior to or at the time of sentencing. See TCO
at 5, 39-41. However, even if not waived, we would also agree with the trial
court that the recorded telephone conversations were obtained as part of
Appellant’s prosecution pursuant to Section 5704(14)(i)(C) of the Wiretap Act.
TCO at 41-45; see also 18 Pa.C.S. § 5704(14)(i)(C) (permitting recorded
telephone conversations to be divulged in the prosecution of any crime).
Moreover, we have no reason to conclude that the trial court abused its
discretion in considering the recordings as indicators of Appellant’s character
and lack of capacity for rehabilitation, instead of as mere expressions of
temporary annoyance and frustration. See Appellant’s Brief at 22.



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J-S26014-18



was convicted.” Appellant’s Brief at 18, 19. We, however, do not believe the

trial court did so. In discussing the victim’s death and its impact on his family,

the trial court considered not only the effect of Appellant’s crime, but also “the

effect of [Appellant’s] prison telephone statements and the effect that his

complete lack of remorse ha[s] had on the family of Darious Condash.” N.T.

Sentencing at 43.8 By describing how Condash’s life was cut short at nine

years old, the trial court was not blaming Appellant for his death, but instead

was illustrating the loss experienced by Condash and his family, and how

Appellant’s “complete lack of remorse and cruel and call[o]us statements

regarding [the victim’s] family are indicia of a heartless human being who

lacks social conscience.” Id. at 44.

       Finally, although Appellant urges us to interpret certain facts in a way

that would negate any finding of concealment, see Appellant’s Brief at 21, the

trial court did not abuse its discretion by weighing that Appellant parked his

vehicle in his garage after the accident, did not drive it even though it was

operable, specifically told friends not to say anything about the damage to the

vehicle, and did not report the accident to the police until he was confronted
____________________________________________


8 In addition, the trial court stated that the hit-and-run here occurred in an
atypical way as “[f]orensic evidence adduced at trial indicates that Condash’s
head and face impacted [Appellant’s] car only one foot in front of the
windshield[,]” and “[t]he force of the impact propelled Condash’s body a
significant distance in front of [Appellant’s] vehicle.”          TCO at 36.
Nevertheless, Appellant “did not stop at the scene of the accident, although
he testified at trial that he knew he had stuck an object[,]” nor did he notify
police. Id.



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by Detective Hammer. N.T. Sentencing at 42.9 Accordingly, we discern no

abuse of discretion by the trial court in fashioning Appellant’s sentence.

       In his second issue, Appellant argues that the trial judge failed to recuse

himself upon receipt of Appellant’s recorded prison telephone                calls.

Appellant’s Brief at 24.        He claims that the trial judge “appeared to be

personally offended by the tone and content of [Appellant’s] recorded

statements[,]” and “allowed his personal animus toward [Appellant] influence

his imposition of an appropriate sentence.”        Id. The trial court, however,

found this claim to be waived because Appellant did not object nor raise the

issue of recusal at the time of sentencing. See TCO at 48-49; Addendum at

3.10 In support, the trial court relied on Lomas v. Kravitz, 170 A.3d 380 (Pa.

2017), in which our Supreme Court explained that “a party must seek recusal

of a jurist at the earliest possible moment, i.e., when the party knows of the

facts that form the basis for a motion to recuse. If the party fails to present

____________________________________________


9We also observe that Appellant had initially told his friends that “he thought
he had hit a deer on Steuben Road[,]” in spite of being aware that his vehicle
had struck an object on Schoenersville Road. See TCO at 2.

10 We note that the Commonwealth did not surprise Appellant with their use
of the recordings; the trial court stated that the Commonwealth provided
Appellant with the recorded prison conversations over a week before
sentencing, and Appellant’s counsel said at sentencing that he had listened to
the prison calls.     See Addendum at 2-3; N.T. Sentencing at 21-22.
Consequently, in its opinion, the trial court suggested that Appellant could
have also raised his recusal issue prior to sentencing since he had the
recordings at that point. However, Appellant’s recusal argument centers on
the trial court’s purported reaction to the recordings at sentencing and its
subsequent imposition of an above-aggravated range sentence, which
Appellant could not have known of before the sentencing proceeding.

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J-S26014-18



a motion to recuse at that time, then the party’s recusal issue is time-barred

and waived.” Id. at 390 (citations omitted); see also Addendum at 2. By

waiting until his post-sentence motion to raise the issue of recusal, the trial

court discerned that Appellant did not raise the issue at the ‘earliest possible

moment’ and therefore had waived it. See TCO at 49.

       Our review of the relevant case law indicates a lack of clarity around

what constitutes the ‘earliest possible moment.’ See Lomas, 170 A.3d at 393

(“[T]here is arguably some procedural ambiguity in Pennsylvania’s recusal

jurisprudence that may result in requests not being sought with absolute

immediacy. Relative to initiating a recusal request, the case law has variously

referred to an ‘application by petition’ or the filing of a ‘motion,’ as well as the

lodging of an ‘objection[.’] Although this historical lack of consistency may be

attributable to deviations in nomenclature, it is notable that there are no

statutory or rules-based procedures for recusal in Pennsylvania, as there are

in other jurisdictions.”) (Saylor, C.J., dissenting) (citations and footnotes

omitted).11 Nevertheless, Appellant makes no argument on appeal as to when

he was required to raise the recusal issue, and he does not address the trial

court’s finding of waiver whatsoever. See Appellant’s Brief at 24. We decline

to craft those arguments for him. See Banfield v. Cortes, 110 A.3d 155,

168 n.11 (Pa. 2015) (“Where an appellate brief fails to provide any discussion

____________________________________________


11 The Majority in Lomas determined that it “need not decide the exact
moment in which [the a]ppellants were required to present the recusal issue
to avoid waiver.” Lomas, 170 A.3d at 391.

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of a claim with citation to relevant authority or fails to develop the issue in

any other meaningful fashion capable of review, that claim is waived. It is not

the obligation of an appellate court to formulate [an] appellant’s arguments

for him.”). Accordingly, no relief is due.12

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018




____________________________________________


12 Even if not waived, we reiterate that Appellant’s sentence of four to ten
years’ imprisonment is not unreasonable and, thus, the trial court’s sentence
alone does not demonstrate bias.

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