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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                  v.                   :
                                       :
FREDDIE KNIGHT,                        :         No. 911 WDA 2013
                                       :
                       Appellant       :


           Appeal from the Judgment of Sentence, April 3, 2013,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0005253-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED SEPTEMBER 2, 2014

      This is an appeal from the judgment of sentence entered April 3, 2013,

in the Court of Common Pleas of Allegheny County following appellant’s

guilty plea to several charges stemming from a motor vehicle accident. We

affirm.

      At appellant’s guilty plea hearing, the Commonwealth presented the

following summary of the evidence:

           That   on   February    12,   2012,   the    victim,
           Tammy Roberts, and her boyfriend, Peter Gearhart,
           were having dinner at the Creighton Hotel located at
           995 Freeport Road in East Deer Township, Allegheny
           County.

                 Roberts and Gearhart left the restaurant
           around 10:00 that evening, intending to walk to their
           home which was only a few blocks away. After the
           victim and Gearhart exited the restaurant, they
           found themselves on the sidewalk at the foot of
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          several cement stairs descending from the main bar
          entrance.

                 They noticed the defendant’s vehicle traveling
          southbound on Freeport Road. Peter Gearhart would
          have testified that the defendant’s vehicle which was
          a 1996 purple Ford Mustang appeared to be traveling
          at a high rate of speed and when adjacent to the
          hotel lost control with the car descending into a yaw
          [sic] and traveling sideways.

                 Before coming to rest, the defendant’s car
          struck Tammy Roberts and pinned her leg and foot
          against the front cement stairs of the Creighton
          Hotel.

                Gearhart     could     see    the    defendant,
          Freddie Knight, in the driver seat of the vehicle with
          the female later identified as Carrie Arblaster in the
          front passenger seat.

                The defendant then put the car into reverse
          and began to flee the parking lot. Realizing the
          defendant was leaving the scene, Mr. Gearhart threw
          a full sixpack of beer he was carrying at the
          defendant’s car cracking the windshield.

                The defendant fled in his vehicle down a side
          street and eventually out of view of Mr. Gearhart.

                Police were immediately called and the
          description of the defendant and his vehicle was
          broadcast over police ban [sic]. Fawn Township
          police officer Christopher Cattone, while on patrol,
          spotted the defendant’s vehicle on Route 908, some
          12 miles from the Creighton Hotel.

                Defendant’s vehicle appeared to be heavily
          damaged, was smoking, and the head and taillights
          were flickering.

               Officer Cattone initiated lights and sirens and
          attempted a traffic stop of Knight’s vehicle. At that



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          point Knight accelerated his vehicle with Officer
          Cattone in pursuit.

                 As the chase proceeded down Route 908,
          speeds reached approximately 70 to 80 miles per
          hour. Near the intersection of 908 and Ridge Road,
          the defendant drove his car completely into the
          oncoming lane of traffic and onto the shoulder,
          finally turning onto a gravel road called Greenhaven
          Lane.

                The defendant’s vehicle then spun out of
          control, striking the pursuing police car before
          coming to a stop.

                Defendant Freddie Knight then emerged from
          the driver’s side door and escaped on foot into the
          surrounding forest. Officer Cattone gave chase on
          foot into the woods where he found the defendant
          several hundred yards away attempting to hide
          under some vegetation and brush.

                 Refusing repeated commands to show his
          hands which the defendant had placed underneath
          himself, Officer Cattone deployed his taser once on
          the defendant which compelled Knight to follow
          directions thereafter.

                Knight voluntarily submitted to a blood draw at
          Allegheny Valley Hospital. The blood [was] tested by
          the Allegheny County Office of the Medical Examiner
          at Lab 12LAB01319.         Testing performed showed
          negative results for all legal and prescription
          narcotics but did find a low level whole blood ethanol
          reading of 0.019 percent.

                The     defendant    gave    a statement   to
          investigating Allegheny County police detectives in
          which he admitted driving the Mustang, striking the
          victim, and fleeing from the police.

                Although the defendant claimed his vehicle was
          struck from behind by a pickup truck causing him to
          lose control of his vehicle before the collision at the


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          hotel, he did concede that he fled the scene and also
          the police subsequently due to his driver’s license
          being suspended.

                 The Commonwealth would have introduced the
          certified record from the Pennsylvania Department of
          Transportation showing this defendant’s driver’s
          license at the time of this incident was suspended
          due to various traffic violations.

                 Carrie Arblaster, who was the passenger in
          defendant’s vehicle, would have testified consistent
          with the defendant that their vehicle had been forced
          off the road by a truck.

                Arblaster would have also testified that she
          repeatedly told the defendant to return to the scene
          of the collision to which the defendant refused saying
          he had a suspended license.

                Arblaster also screamed at [defendant] during
          the police pursuit, telling him to pull over. Again,
          [defendant] responded that he had to escape due to
          the collision and his license being suspended.

                The standard vehicle accident reconstruction of
          the accident was impossible in this case mainly due
          to    the     defendant    leaving     the    scene.
          Detective Zabelski and others later inspected the
          defendant’s vehicle and found it to be serviceable
          other than the damage sustained in this incident. All
          breaking [sic] systems worked appropriately.

                Also [in] an attempt to corroborate or disprove
          the defendant’s claim about the truck striking the
          rear of the defendant’s vehicle, detectives inspected
          and photographed the rear bumper. Some minor
          damage was noted making a definitive scientific
          stance on defendant’s contention impossible.

               Also the defendant did not appear to have the
          proper insurance covering the vehicle.

          ....


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                  The victim’s injuries in this case, 48-year old
           Tammy Roberts was initially treated at the scene by
           EMS service medic no. 272. A bystander with some
           military combat experience had also applied a
           tourniquet to the victim’s leg prior to EMS arriving.

                As the victim’s right foot and leg were
           completely pulverized, EMS personnel realized
           amputation would be necessary.

                  Victim was transported via Life Flight 4 to
           Allegheny General Hospital where she was intubated
           and underwent immediate emergency surgery for
           right lower extremity blood [sic] trauma with tibia
           fibula fracture, open as well as vascular injury.

                  Ms. Roberts was categorized as being in critical
           condition and was intubated. Because of extensive
           trauma to her right leg, her right leg was amputated
           below the knee. The victim also underwent some
           14 follow-up surgical procedures over the next few
           weeks and months to remove necrotic tissue and
           shape the stump on her leg to allow for the use of
           the prosthesis.

                 In the weeks and months following the medical
           procedures, the victim went through physical therapy
           to use a prosthetic leg.

                   Ms. Roberts is present today. She is in a
           wheelchair. She does have a prosthetic leg. She is
           still in the process of learning to use that. She’s due
           to be outfitted with a new, as it was described to me,
           digital prosthesis which will happen sometime before
           the defendant’s sentencing.

Notes of testimony, 12/13/12 at 10-18.

     Appellant pled guilty to accidents involving death or personal injury,

resisting arrest, accidents involving death or personal injury while not

properly licensed, and fleeing or attempting to elude police in exchange for


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the withdrawal of several other charges.          On April 3, 2013, the court

sentenced appellant to an aggregate term of imprisonment of 5 to 10 years.

On April 12, 2013, a post-sentence motion requesting reconsideration of

sentence was filed.       The trial court denied the post-sentence motion on

April 23, 2013.      This appeal followed.    Appellant was ordered to file a

Rule 1925(b) statement and he complied.          Appellant raises the following

issue:

               I.    DID   THE   SENTENCING    COURT   ACT
                     UNREASONABLY BY IMPOSING EXCESSIVE
                     SENTENCES RUNNING CONSECUTIVELY AT
                     EACH   COUNT   AND    EXCEEDING   THE
                     GUIDELINES AT SOME COUNTS, WITHOUT
                     ADEQUATELY CONSIDERING ALL STATUTORILY
                     REQUIRED SENTENCING FACTORS?

Appellant’s brief at 6.

         Appellant’s claim challenges the discretionary aspects of his sentence.

                      Challenges to the discretionary aspects of
               sentencing do not entitle an appellant to review as of
               right.    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


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                  Sentencing     Code,     42    Pa.C.S.A.
                  § 9781(b).

            Objections to the discretionary aspects of a sentence
            are generally waived if they are not raised at the
            sentencing hearing or in a motion to modify the
            sentence imposed.

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

omitted).

     Instantly, appellant filed a post-sentence motion for reconsideration

and then filed a timely notice of appeal. In addition, appellant has complied

with the briefing requirements of Commonwealth v. Tuladziecki, 522 A.2d

17 (Pa. 1987), and Pa.R.A.P. 2119(f) by including a concise statement of his

reasons for challenging the discretionary aspects of his sentence.      Last,

appellant presents a substantial question for our review. We have held that

“when a sentence exceeds the aggravated range of the guidelines and there

is an allegation of excessiveness, this Court must review the record to

determine whether there was an abuse of discretion.” Commonwealth v.

Monahan, 860 A.2d 180, 182 (Pa.Super. 2004), appeal denied, 878 A.2d

863 (Pa. 2005).

     Preliminarily, we note that the sentencing judge has a great deal of

discretion in imposing a sentence. A sentence will not be reversed absent an

abuse of discretion.   See Commonwealth v. Keiper, 887 A.2d 317, 319

(Pa.Super. 2005) (citation omitted). Moreover,

            [b]y statute, this Court is required to vacate a
            sentence and remand for resentencing if the


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           sentencing court imposed a sentence that is outside
           of the sentencing guidelines and the sentence is
           unreasonable. 42 Pa.C.S.A. § 9781(c)(3).

           . . . . 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.

           (4)   The guidelines     promulgated   by   the
                 commission.

42 Pa.C.S.A. § 9781(d).

                 In addition, when a sentencing court deviates
           from the sentencing guidelines, it is important that
           the court reflect a consideration of the sentencing
           guidelines, the background and character of the
           defendant, the circumstances of the crime, and
           impose a sentence that is consistent with the
           protection of the public and the rehabilitative needs
           of the defendant.

Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa.Super. 2007) (internal

case citations and quotations omitted).

     We observe that the Pennsylvania sentencing guidelines are not

mandatory, and thus do not prohibit any particular sentence within the

statutory maximum. See, e.g., Commonwalth v. Mouzon, 812 A.2d 617,

621 (Pa. 2002) (plurality); Commonwealth v. Tirado, 870 A.2d 362, 366



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(Pa.Super. 2005). Here, the trial court imposed an aggregate sentence of

5 to 10 years’ imprisonment.     More specifically, the trial court imposed

consecutive terms of 2 to 4 years for appellant’s offenses of accidents

involving death or personal injury and accidents involving death or personal

injury while not properly licensed which fell beyond the aggravated range of

the guidelines, but below the statutory maximum.1 The trial court imposed

consecutive terms of 6 to 12 months for the resisting arrest and fleeing and

eluding offenses which fell in the aggravated range.2 Thus, absent an abuse

of discretion, we may not disturb the sentencing court’s imposition of

sentence.

     Appellant   argues   the   trial    court   failed   to   give   the   required

individualized consideration to all the Section 9721(b) factors when

sentencing him to an “excessive sentence” in the aggravated range on two

counts and “completely outside” of the aggravated range on two other

counts. (Appellant’s brief at 25-26.) We begin by noting that appellant has

waived any argument concerning the two offenses, resisting arrest and

fleeing and eluding police, for which he received a sentence in the

aggravated range.     This claim was not preserved in his motion for


1
  With an offense gravity score of 5 and a prior record score of 3, the
guidelines provide for a standard range of 6 to 16 months and an
aggravated range of 16 to 19 months.
2
  With an offense gravity score of 2 and a prior record score of 3, the
guidelines provide for a standard range of RS (restorative sanctions) to
4 months and an aggravated range of 4 to 7 months.


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reconsideration. (See Docket #13.) Additionally, our review of this matter

indicates this claim was not in appellant’s court-ordered Rule 1925(b)

statement and, as such, was not addressed by the trial court in its

Rule 1925(a) opinion. (See Docket #21.) The first time it appears is in his

appellate brief.   See Commonwealth v. Nischan, 928 A.2d 349, 355

(Pa.Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007) (an appellant

can seek to appeal discretionary sentencing issues only after preserving

them during the sentencing hearing or in post-sentence motions). We will

proceed to address appellant’s concerns regarding the sentence he received

that fell outside the guidelines but within the statutory maximum.

      Appellant complains the trial court placed too much emphasis on the

victim’s serious injuries and his prior criminal history which were factors

already accounted for by the guidelines, while failing to adequately consider

his rehabilitative needs and other mitigating factors, such as, his job and the

effect incarceration would have on his family. Appellant contends the trial

court should have placed greater weight on the fact that he took

responsibility by pleading guilty, apologizing for his actions and expressing a

willingness to pay restitution.

      Initially, we note the trial court had the benefit of a pre-sentence

report.   “Our Supreme Court has determined that where the trial court is

informed by a pre-sentence report, it is presumed that the court is aware of

all appropriate sentencing factors and considerations, and that where the



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court has been so informed, its discretion should not be disturbed.”

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.Super. 2009), citing

Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988).                  “The

sentencing judge can satisfy the requirement that reasons for imposing

sentence be placed on the record by indicating that he or she has been

informed by the pre-sentencing report; thus properly considering and

weighing all relevant factors.” Id., citing Commonwealth v. Fowler, 893

A.2d 758, 766-767 (Pa.Super. 2006).

     It appears appellant is asking us to re-weigh the mitigating factors. In

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009), this court

noted the sentencing court was fully informed of all mitigating factors at

play. The Macias court stated:

           We presume that the court, which was in possession
           of those facts, applied them. The sentencing court
           merely chose not to give the mitigating factors as
           much weight as Appellant would have liked and
           decided that the facts did not warrant imposition of a
           sentence lower than the standard range.           We
           cannot re-weigh the sentencing factors and
           impose our judgment in place of the sentencing
           court.

Id. (emphasis added).

     At the sentencing hearing, the Commonwealth pointed out appellant

failed to make any payment on the $11,259 in restitution that he owed the

victim. (Notes of testimony, 4/3/13 at 3, 9.) The prosecutor stated he had

not objected to appellant being out on bond because it was his hope that



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appellant would make some sort of payment to the victim. (Id.) The trial

court noted that during the time appellant was out on bond, he was involved

in a domestic violence assault and a fleeing and eluding offense.    (Id. at

14.) The court noted appellant’s driving history: operator must be licensed,

three violations; driving while under suspension, two violations; driving too

fast for conditions, one violation; and he failed to respond to notifications

from PennDOT ten times. The trial court went on to state:

                  The Court has taken into consideration the
           pre-sentence report, the sentencing guidelines, his
           individual background, his expression of remorse
           today, as well as him pleading guilty. The Court
           notes and incorporated earlier the prior proceedings
           wherein the injuries to Miss Roberts were listed.

                  Briefly stated, she has undergone amputation
           on one of her legs. She has had at least 14 surgical
           procedures. Skin graphs [sic]. And she has stated
           several times it has absolutely ruined the quality of
           her life. Despite her resilience and her resolve to
           resume life as best she can.

                 The Court finds that the defendant’s history
           here, he has been sentenced to a period of
           community supervision, which has failed to impress
           upon him and rehabilitate him to a positive lifestyle.
           He has undergone periods of county incarceration for
           a burglary charge, 2 to 12 months in 1992. Another
           3 to 23 and-a-half for a theft case in 1990. And a
           burglary sentence in 1992 of two to five years. And
           both times, in state and county, he was paroled and
           had to be revoked from those paroles by virtue that
           he failed to abide by the conditions of parole. And
           he had a firearms charge in 2003 where he got two
           years[’] probation.

                 The Court has taken into account the long
           period of time where he was apparently living in


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           conformity with the law. The Court notes that those
           offenses are reflected in the prior record score and
           the Court is not considering them outside of that,
           except for the fact to note the various periods of
           supervision, which he has been extended in the
           community or locally or minimal periods relatively
           speaking of state incarceration, which has failed to
           impress upon him the need to conform to the laws of
           society. And which in this incident, has resulted in
           harm to Miss Roberts.       Not only her, but her
           significant other, as well as her extended family.
           And I think her grandchildren talked about it at a
           prior proceeding.

                 Consequently, the Court believes consistent
           with the statutory obligation, taking into account the
           defendant’s individual background, rehabilitative
           needs, such as they are and have previously
           attempted to be addressed and noted.

                 The Court has taken into account the impact of
           this crime on Miss Roberts and her extended family
           in terms of the injuries. The Court also has to
           consider the protection of society so that persons are
           removed from the danger of Mr. Knight’s conduct in
           the future insofar as I can be within the parameters
           of the law in my sentencing obligation.

Id. at 15-17.

     Based on the above, the trial court was aware of the sentencing

guidelines, considered all requisite factors, and stated its reasons on the

record for sentencing appellant outside the sentencing guidelines.      See

Commonwealth v. Sheller, 961 A.2d 187, 191-192 (Pa.Super. 2008) (no

abuse of discretion for sentencing outside guidelines where sentencing court

considered all requisite factors, had benefit of presentence report, and had

opportunity to observe defendant’s characteristics and history), appeal



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denied, 980 A.2d 607 (Pa. 2009). We conclude that the trial court placed

adequate reasons on the record to support its deviation from the guidelines.

Accordingly, we discern no abuse of discretion by the court in the sentence

imposed.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/2/2014




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