J-S03014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RONALD JOSEPH POOLER, JR.,

                            Appellant                 No. 2657 EDA 2017


        Appeal from the Judgment of Sentence Entered March 31, 2017
               In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0000762-2016


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

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 06, 2018

        Appellant, Ronald Joseph Pooler, Jr., appeals from the judgment of

sentence of an aggregate term of 75 to 150 months’ incarceration, imposed

after he was convicted of one count each of aggravated assault by vehicle

(75 Pa.C.S. § 3632.1(a)) and accidents involving death or personal injury

while not properly licensed (75 Pa.C.S. § 3742.1), as well as three counts of

endangering the welfare of children (18 Pa.C.S. § 4304(a)). Appellant solely

challenges the discretionary aspects of his sentence. We affirm.

        Appellant pled guilty to the above-stated offenses on November 10,

2016. On March 31, 2017, the court imposed Appellant’s sentences for the

offenses in this case.        Appellant filed a timely post-sentence motion to

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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modify his sentence, which was denied.        He then filed a timely notice of

appeal, as well as a timely Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.       Herein, Appellant presents one issue for our

review:     “Did the trial court abuse its discretion [by] imposing an aggregate

sentence of [75] months to [150] months for the two felonies of aggravated

assault by vehicle and accident involving death or injury while not properly

licensed[,] and three misdemeanors of endangering the welfare of children?”

Appellant’s Brief at 5 (unnecessary capitalization omitted).

      Appellant’s single issue challenges the discretionary aspects of his

sentence.

      Accordingly, his right to appellate review is not absolute. See
      Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa. Super.
      2005); Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
      Super. 2007) (“A challenge to the discretionary aspects of a
      sentence must be considered a petition for permission to
      appeal[.]”). The Rules of Appellate Procedure mandate that to
      obtain review of such claims, the appellant must include in his
      brief a Concise Statement of Reasons Relied Upon for Allowance
      of Appeal. See id.; see also Pa.R.A.P. 2119(f). The defendant’s
      Concise Statement must, in turn, raise a substantial question as
      to whether the trial judge, in imposing sentence, violated a
      specific provision of the Sentencing Code or contravened a
      “fundamental norm” of the sentencing process. See Fiascki,
      886 A.2d at 263; Commonwealth v. Ousley, 392 Pa. Super.
      549, 573 A.2d 599, 601 (1990) (citations and internal quotation
      marks omitted) (“[A]ppeals from the discretionary aspects of
      sentence are not to be granted as a matter of course, but ...
      only in exceptional circumstances where it can be shown in the
      2119(f) statement that despite the multitude of factors
      impinging on the sentencing decisions, the sentence imposed
      contravenes the sentencing code.”)[.] The determination of
      whether a particular issue poses a substantial question is to be
      made on a case-by-case basis. See Fiascki, 886 A.2d at 263. If
      the Rule 2119(f) statement is absent or if the statement

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      provided fails to demonstrate a substantial question, this Court
      may refuse to accept the appeal. See id.

Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011).

      Here, Appellant has included a Rule 2119(f) statement in his brief.

Therein, he maintains that the sentencing court failed to conform to 42

Pa.C.S. § 9721(b), by not taking into account Appellant’s rehabilitative

needs and other mitigating factors when imposing consecutive, rather than

concurrent, sentences. See Appellant’s Brief at 14; 42 Pa.C.S. § 9721(b).

Appellant avers that the court’s decision to impose consecutive sentences

resulted in “an aggregate sentence that was unduly harsh and excessive in

light of the nature of the offenses.” Id.

      Based on the argument presented in Appellant’s Rule 2119(f)

statement, and the case law on which he relies, we conclude that he has

presented a substantial question for our review.    See Commonwealth v.

Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (concluding that a substantial

question may exist where the appellant challenges the imposition of

consecutive sentences as unduly excessive, in conjunction with a claim that

the court failed to consider his rehabilitative needs and mitigating factors).

Accordingly, we will review the merits of his claim, keeping in mind that,

      [t]he sentencing court is given broad discretion in determining
      whether a sentence is manifestly excessive because the
      sentencing judge is in the “best position to measure factors such
      as the nature of the crime, the defendant’s character and the
      defendant's display of remorse, defiance, or indifference.”
      Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa. Super.
      1998) (quoting Commonwealth v. Ellis, 700 A.2d 948, 958
      (Pa. Super. 1997)). In order to find that a trial court imposed an


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      “unreasonable” sentence, we must determine that the
      sentencing court imposed the sentence irrationally and that the
      court was “not guided by sound judgment.” Commonwealth v.
      Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007).

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012).

      Appellant begins by arguing that “[w]hen imposing the sentence on

aggravated assault by vehicle, the court focuse[d] almost exclusively on a

singular factor for its sentence: the victim, [Appellant’s minor child,] A.P.”

Appellant’s Brief at 21 (unnecessary capitalization omitted). He notes that,

during the sentencing hearing, the court emphasized the severity of A.P.’s

injuries and the life-altering effect that Appellant’s actions had on her. Id.

(citation to record omitted).     Appellant asserts, however, that “[t]he

seriousness of the crime … is already taken into account by the Pennsylvania

Sentencing Commission when it designates a crime with an offense gravity

score.” Id. Appellant further avers that he suffered from addiction and that

the sentencing court failed to consider his rehabilitative needs when

imposing his sentence. Id.

      Next, Appellant argues that the court’s imposition of a sentence for the

offense of accident involving injury or death while not properly licensed, to

run consecutive to the previous sentence, results in an aggregate sentence

which is “disproportionate to the nature and circumstances of the offenses[,]

because they are both based upon the same singular act and victim.” Id. at

22.

      Finally, regarding the three counts of endangering the welfare of

children, Appellant alleges that the court again failed to consider his

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rehabilitative needs or other mitigating factors presented in the pre-sentence

investigation (PSI) report or in his memorandum in aid of sentencing. Id.

He also contends that the court failed to consider the gravity of the offense

by imposing all three sentences consecutively. Appellant states: “While the

three children were exposed to injury, the actual result was that they

suffered no actual injuries. As a result of the charges running consecutively,

the aggregate sentence becomes disproportionate to the nature and

circumstances of the offenses.” Id. at 23-24.

       Having   carefully    reviewed the       record of Appellant’s     sentencing

proceeding, we ascertain no abuse of discretion by the court. Initially, we

stress that the court had the benefit of a PSI and reviewed that report prior

to    the   sentencing   proceeding.       N.T.     Sentencing,   3/31/17,   at    50.

Additionally, the trial court indicated that it took into consideration a number

of character letters on Appellant’s behalf, as well as statements made in

court by Appellant, his father, Ronald Pooler, Sr., and his uncle, Claude

Turner. Id. The court also listened to defense counsel discuss many of the

mitigating factors Appellant cites, supra.           See id. at 29-34 (counsel’s

emphasizing Appellant’s long-term drug addiction and mental health issues,

his   completion   of    a   drug   and   alcohol    rehabilitation   program     while

incarcerated, his remorse for the pain and suffering his actions have caused

his daughter, and Appellant’s recent involvement with ministry).

       In its opinion, the sentencing court emphasizes that while it considered

all of the foregoing factors when determining Appellant’s sentence, it found

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“the ‘severity of [A.P.’s] injuries alone and the life altering transformation

that took place for her that day’ outweighed any mitigating circumstances

and any prior history or circumstances specific to [Appellant].” Trial Court

Opinion (TCO), 9/20/17, at 5 (unpaginated) (quoting N.T. Sentencing at 54).

Additionally, the court notes that it set forth the factual justification for the

sentence imposed, in detail, on the record at the sentencing hearing. Id. at

2 (unpaginated) (citing N.T. Sentencing at 50-54).          These facts included

Appellant’s egregious driving conduct that led to the incident, namely that

Appellant    was   weaving   through   traffic   on   a   congested   highway   at

approximately 72 to 77 miles per hour. Id. However, the court opines,

      several specific additional circumstances which entered into the
      court’s sentencing determination were not expressly referenced
      on the record at that time, but will be mentioned now. The
      accident which precipitated the instant charges was caused when
      [Appellant] rear-ended a vehicle in the left lane. This caused
      [Appellant] to lose control of the vehicle, which subsequently
      flipped over. [Appellant’s] four children were in the vehicle at
      the time, but none were properly restrained. As a result[,] the
      vehicle itself landed on the head of one of the children, [A.P.]
      (age 7 at the time of the accident), causing catastrophic damage
      to her skull. As stated by Tiffany Pooler, [A.P.’s] mother, at the
      sentencing hearing, [A.P.] has had … 30 brain surgeries as a
      result of the accident, and pieces of her skull were removed
      during certain of those procedures. These injuries also have
      affected Ms. Pooler herself, as her life is now consumed by
      caring for [A.P.]

Id. at 2-3 (citations to record omitted).

      Regarding Appellant’s claim that his sentence is disproportionate to the

nature and circumstances of the offenses, the trial court states the

following:


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      [Appellant’s] conduct led to the permanent and irreparable
      disfigurement of his daughter[, A.P.], who can no longer lead a
      normal life. She cannot care for herself, her mental state has
      completely changed, and photographs introduced by the
      Commonwealth at the sentencing hearing depict the gruesome
      result of [A.P.’s] injuries that she will have to live with for the
      rest of her life. Moreover, as set forth in the court’s July 12,
      2017 [order denying Appellant’s motion to modify his sentence],
      only sheer chance prevented such injuries from being inflicted on
      [Appellant’s] other three children who were not appropriately
      restrained in the vehicle. Each of the consecutive sentences
      imposed by the court reflects the harm [Appellant] risked or
      actually caused to these three children.         The ‘nature and
      circumstances’ of [Appellant’s] reprehensible conduct warrant
      the sentence imposed by the court.

Id. at 3-4 (citations to record omitted).

      Based on this record, we are satisfied that the sentencing court

adequately considered all of the mitigating circumstances and the section

9721(b) factors, including Appellant’s rehabilitative needs. We ascertain no

abuse of discretion in the ultimate sentence imposed by the court.

      Judgment of sentence affirmed.

      Judge Panella joins the memorandum.

      President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/18




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