J-S13042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            : IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              : PENNSYLVANIA
                                               :
                           Appellee            :
                                               :
                      v.                       :
                                               :
    TRENTON ROSS BILAK,                        :
                                               :
                           Appellant           : No. 1456 WDA 2018

     Appeal from the Judgment of Sentence Entered September 11, 2018
                in the Court of Common Pleas of Blair County
            Criminal Division at No(s): CP-07-CR-0001191-2017

BEFORE:      BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                           FILED MAY 21, 2019

        Trenton Ross Bilak (Appellant) appeals from the September 11, 2018

judgment of sentence of an aggregate term of eight and one-half to

seventeen years of incarceration, to be followed by two years of probation,

imposed after he pleaded guilty to accidents involving death or personal

injury, homicide by vehicle, tampering with or fabricating physical evidence,

and reckless driving. We affirm.

        We glean the following facts from the record.1 Appellant’s convictions

stem from an incident that occurred in Greenfield Township, Pennsylvania on

____________________________________________


1The convictions in the instant appeal resulted from Appellant’s guilty plea.
The facts are derived from the transcripts of the preliminary and sentencing
hearings, as well as Appellant’s pre-sentence memorandum.




* Retired Senior Judge assigned to the Superior Court.
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April 14, 2017, at about 4:00 a.m. Appellant, while operating an all-terrain

vehicle (ATV), caused the death of 18 year-old Mikayla Focht. On the night

of April 13, 2017, Appellant and a group of about 15-20 others, nearly all

teenagers, gathered on a wooded property for a bonfire party, which had

been arranged by Jacob Helsel. Alcohol was served and Appellant, who was

21 years old at the time, was drinking beer. The property had a cabin within

one-half mile of the bonfire. At some point in the early morning hours of

April 14, about 10 of the attendees moved from the bonfire to the cabin,

where many planned to spend the night.       Several people observed Helsel

inappropriately touching Focht inside the cabin; they tried to separate Helsel

from her.     One person left the cabin and went to the bonfire, where

Appellant heard what was happening at the cabin.         Appellant, who had

arrived at the party on his ATV, drove it to the cabin. When he arrived, he

ordered everyone out of the cabin.     Appellant and Helsel talked alone for

several minutes. Appellant said he was going to take Focht home, but when

an attendee objected, Appellant threatened to pull a gun on anyone who had

a problem with his taking Focht home. Appellant, Focht, and Helsel then left

the property.

      Appellant drove his ATV with Focht on the back, while Helsel followed

behind driving his Jeep, eventually making their way to Knob Road. Knob

Road is a local highway with a speed limit of 45 miles per hour and ATVs are

not permitted to operate on it.    Appellant was traveling at an excessive

speed of at least 56 to 62 miles per hour. Shortly after 4:00 a.m., Appellant

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struck two deer with his ATV, catapulting Focht more than 200 feet off of the

vehicle and onto the roadway.2            Focht died instantly; Appellant was not

seriously injured. Helsel, who was following behind in his Jeep, swerved to

avoid hitting Appellant or Focht in the roadway, lost control, and ran over

Focht’s body with his Jeep before crashing it into a pole.         Appellant and

Helsel did not know whether Focht was still alive, did not render or call for

aid, and left the scene driving their respective vehicles.

        At least two witnesses heard the crash from their homes, but they

believed someone had struck a deer, which was common on that stretch of

road.    When they saw vehicles leaving the scene, they returned to bed.

Over two hours later, at about 6:10 a.m., a witness who was driving to work

came upon Focht’s body in the roadway. She immediately called 911 from a

neighboring house, and then returned to the roadway to position her vehicle

in such a way that it would protect Focht’s body from oncoming traffic.

Shortly after, Appellant and Helsel drove past the scene in Appellant’s red

truck, but only after the witness flagged the truck down did Appellant stop.

At some point, someone at the scene, presumably Appellant or Helsel,

retrieved vehicle parts from where the Jeep had crashed into the pole earlier

____________________________________________


2 Appellant did not take any evasive action, even though the moon was
nearly full that night. N.T., 2/1/2018, at 89-90. An expert opined at the
preliminary hearing that the deer should have been visible to Appellant, and
Appellant should have been able to react by braking, counter-steering, or
taking some other kind of evasive action. Id. 89-90, 100.




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that morning, and put them in the back of Appellant’s truck. While at the

scene, Appellant did not offer any information to emergency responders or

others about his involvement in the accident.

      During the approximately two hours between the accident and 911

call, Appellant and Helsel made several stops. First, they went to a friend’s

house located nearby.    The friend and another individual who was at the

home told Appellant and Helsel to call 911, but they never did. Appellant hid

his ATV behind an out-building on the friend’s property.     At some point,

Appellant changed his clothes and got his red truck.      Next, he drove to

property owned by Helsel’s relatives, where Helsel had driven and concealed

from view his Jeep.     At the time of the accident, Appellant had pending

driving while intoxicated (DUI) charges and had been released on bail.

      After a police investigation, Appellant was charged with numerous

offenses, and after a preliminary hearing on June 8, 2017, all charges were

held over to court.   Appellant filed an omnibus pretrial motion on October

25, 2017, which largely related to Appellant’s blood alcohol content test

results.   At a pretrial hearing on February 1, 2018, the Commonwealth

moved to withdraw three charges relating to DUI offenses, which the trial

court granted.

      On June 15, 2018, Appellant entered into an open guilty plea to the

aforementioned charges. Appellant was sentenced, inter alia, to five to ten

years of incarceration on the accidents involving death or personal injury

count, three and one-half to seven years of incarceration on the homicide by

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vehicle count, and two years of probation on the tampering with or

fabricating physical evidence count, with all sentences to run consecutively,

and a $200 fine on the reckless driving count. Appellant timely filed a post-

sentence motion, which the trial court denied on September 24, 2018. This

timely-filed appeal followed.   Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      On appeal, Appellant challenges the discretionary aspects of his

sentence. Specifically, Appellant argues that the court erred in sentencing

Appellant to the statutory maximum for his accidents involving death or

personal injury and homicide by vehicle convictions without providing

sufficient reasons for sentencing him outside the standard guideline range on

each count. Appellant’s Brief at 10. We consider this issue mindful of the

following.

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the
      following four factors:

             (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.[] § 9781(b).




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Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Here, Appellant timely filed a notice of appeal, sought reconsideration

of his sentence in a post-sentence motion, and his brief contains a Pa.R.A.P.

2119(f) statement.    We now consider whether Appellant has presented a

substantial question for our review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.       Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “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.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)

(citation and quotation marks omitted).

      Instantly, Appellant asserts in his 2119(f) statement that the court

improperly considered the elements of the offenses to which Appellant

pleaded guilty as aggravating factors to justify its imposing the statutory

maximum sentences for the aforementioned convictions. Appellant’s Brief at

16-18. We conclude that Appellant has raised a substantial question. See

Commonwealth v. Fullin,         892     A.2d   843, 848   (Pa.   Super.   2006)

(concluding Fullin raised a substantial question where he argued “that the




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trial court improperly based his aggravated range sentence on a factor that

constituted an element of the offense”).

     We address the merits of this claim mindful of the following.

     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.

                                    ***

           When imposing [a] sentence, a court is required to
     consider the particular circumstances of the offense and the
     character of the defendant. In considering these factors, the
     court should refer to the defendant’s prior criminal record, age,
     personal characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted). Subsection 9721(b) of the

Sentencing Code offers the following guidance to the trial court’s sentencing

determination:

     [T]he sentence imposed should call for confinement that is
     consistent with the protection of the public, the gravity of the
     offense as it relates to the impact on the life of the victim and on
     the community, and the rehabilitative needs of the defendant.

42 Pa.C.S. § 9721(b).

     As a general matter, Pennsylvania’s sentencing scheme, with its
     guidelines and suggested minimum sentences, is “indeterminate,
     advisory, and guided” in its nature. Pennsylvania judges retain
     broad discretion to sentence up to and including the maximum
     sentence authorized by statute; “the only line that a sentence
     may not cross is the statutory maximum sentence.”


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Commonwealth v. Gordon, 942 A.2d 174, 182 (Pa. 2007) (citations

omitted).   “A judge’s statement of the reasons for imposing a particular

sentence must clearly show that he has given individualized consideration to

the character of the defendant.”     Commonwealth v. Conte, 198 A.3d

1169, 1176 (Pa. Super. 2018) (citation and internal quotation marks

omitted).   “Where the sentencing judge had the benefit of a pre-sentence

report, it will be presumed that he was aware of relevant information

regarding appellant’s character and weighed those considerations along with

the mitigating statutory factors.” Id. at 1177.

      The sentencing court is in a superior position to review the
      defendant’s character, defiance or indifference, and the overall
      effect and nature of the crime. Simply stated, the sentencing
      court sentences flesh-and-blood defendants and the nuances of
      sentencing decisions are difficult to gauge from the cold
      transcript used upon appellate review. Moreover, the sentencing
      court enjoys an institutional advantage to appellate review,
      bringing to its decisions an expertise, experience, and judgment
      that should not be lightly disturbed.

            Under the Sentencing Code[,] an appellate court is to
      exercise its judgment in reviewing a sentence outside the
      sentencing guidelines to assess whether the sentencing court
      imposed a sentence that is “unreasonable.”         42 Pa.C.S.[]
      § 9781(c)(3).    There are no concrete rules as to the
      unreasonableness review for a sentence that falls outside of the
      guidelines.

Id. “[O]ur Supreme Court has indicated that if the sentencing court proffers

reasons indicating that its decision to depart from the guidelines is not

unreasonable, we must affirm a sentence that falls outside those guidelines.”




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Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012)

(citation, quotation marks, and emphasis omitted).

      At   the    sentencing       hearing,    the    Commonwealth       presented    the

testimony of seven witnesses, including Focht’s mother, each of whom

explained how Focht’s death has impacted him or her; photographs from the

scene of the accident, which were admitted under seal; and a slideshow of

Focht’s senior year of high school pictures. The court also heard testimony

from Appellant.      The Commonwealth, referring to Appellant’s egregious

conduct,   sought       the     imposition    of    consecutive   statutory     maximum

sentences, while Appellant requested leniency.

      In its opinion, the trial court stated that it considered the victim impact

statements, “the reasons set forth on-the-record by the Commonwealth

during the sentencing hearing,” “the Commonwealth’s arguments in support

of   imposition    of    the      statutory    maximum      sentences,     to    be   run

consecutive[ly]”, and that “even though [] Appellant entered a guilty plea,

he did not accept full responsibility for his actions.” Trial Court Opinion,

11/7/2018, at 7-15.           The trial court explained its sentencing rationale as

follows.

            Based    upon     our  knowledge     of   the   underlying
      circumstances of this case, including presiding over the pretrial
      hearing held February 1, 2018, we accept the Commonwealth’s
      version of the underlying circumstances as being truthful,
      credible[,] and supported by the evidence. In doing so, we
      accepted the Commonwealth’s argument that the actions of []
      Appellant on the night in question were egregious, callous,
      calculated, deliberate[,] and remorseless. This was not your

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     typical hit-and-run case…. The actions, or lack of action, by []
     Appellant in failing to render aid to [] Focht and in attempting to
     cover his tracks, distinguishes this case from your “normal” case
     and justifies a deviation from the sentencing guidelines.

            Before imposing our sentence upon [Appellant], we set
     forth in detail our factors for sentencing as follows:

           BY THE COURT: … I want to place this all on the
           record. These are the court’s factors for sentencing.
           We have considered all relevant factors for
           sentencing, including, but not limited to, the
           protection of the community, the gravity of the
           offenses in relation to the impact on the victim and
           community and the rehabilitative needs of
           [Appellant]. We have also considered the underlying
           factual circumstances, the information set forth in
           the pre-sentence investigation report, the sentencing
           guidelines, the pre-sentence memorand[a] that have
           been submitted by the Commonwealth and
           [Appellant] and the presentations [made today] on
           behalf of the Commonwealth and [Appellant, and
           Appellant’s] actions on the night in question resulting
           in [the] death of [] Focht.        What is especially
           troubling to us is that after the accident, both
           [Appellant] and [] Helsel fled the scene and allowed
           [] Focht to lay [sic] on the roadway for
           approximately two hours until another passing
           motorist [] called 911, protected her body[,] and
           reported the incident. At no time did [Appellant] or
           [] Helsel take any steps to protect [] Focht’s body or
           call 911 or make any effort to render aid or contact
           emergency personnel to render aid.             Instead,
           [Appellant and Helsel] went to a private residence to
           conceal the whereabouts of the ATV and traveled to
           another location to conceal the whereabouts of the
           Jeep and then returned to the scene of the accident,
           at which time they made an attempt to tamper with
           evidence and, in fact, did tamper with evidence.

                 Relative to the pre-sentence investigation
           report, we note that [Appellant] is 24 years of age, a
           high school graduate and has prior convictions for
           disorderly conduct and criminal mischief from

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          January 31[,] 2013. He received ARD for purchase
          of alcohol by a minor in July of 2013 and a prior
          guilty plea for DUI, highest rate of alcohol, first
          offense on January 31[,] 2017. [Appellant], in the
          pre-sentence investigation, acknowledged a drinking
          problem[ and] has never sought any formal
          treatment to address his alcohol issue. Until his
          incarceration, he did maintain steady employment
          with Rockland Manufacturing in Bedford. We do
          believe that [Appellant’s] rehabilitative needs will be
          addressed by a drug and alcohol evaluation and
          following through with any recommended treatment,
          as well as successful completion of a cognitive
          behavioral therapy class, as well as community
          service.

                 We have considered that [Appellant] has
          [pleaded] guilty to certain counts of the criminal
          information.    [Appellant] indicates that he has
          [pleaded] guilty to accept responsibility for his
          actions and to save the family and friends of [] Focht
          from proceeding through a trial. Even though[] we
          acknowledge that [Appellant] has entered a guilty
          plea, it does not negate the facts that [Appellant]
          engaged in a series of poor decisions and criminal
          behavior that directly resulted in the death of []
          Focht. [Appellant] made poor decisions in attending
          this underage drinking party[, ] drinking alcohol to
          the extent that he did, [] leav[ing] the scene with []
          Focht as a passenger on his ATV[,] and []
          operat[ing] his ATV in violation of the Vehicle Code
          and in a reckless and/or grossly negligent manner
          which directly resulted in [] Focht’s death. Again,
          after such accident, both [Appellant] and [] Helsel
          left the scene without making any effort to aid []
          Focht or call emergency personnel.

                We find no credibility in [Appellant’s] assertion
          that he was attempting to save [] Focht or trying to
          get [] Helsel back to the scene of the accident or
          that he somehow was acting in a heroic manner on
          the date in question.         We believe that such
          assertions are simply not credible and not supported
          by the evidence. Clearly, if [Appellant and Helsel]

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             were without cell phone service where the accident
             occurred, the right thing to do was for one of them
             to stay with [] Focht and the other to travel to a
             location where there was such cell phone service.
             There was nothing heroic about [Appellant’s] actions
             on the night in question, and in fact, we find his
             actions were selfish, calculating[,] and inhumane.

                   As a result, we agree with the Commonwealth
             that the highly egregious and calculating conduct of
             [Appellant] exceeds that harm contemplated by the
             statute.    Thus, we believe that the statutory
             maximum sentence for both accidents involving
             death or personal injury and homicide by vehicle is
             appropriate.    We also believe that consecutive
             sentences are appropriate.

Id. at 15-17 (quoting N.T., 9/11/2018, at 63-66) (some quotation marks

omitted, capitalization altered, and paragraph breaks supplied).

     According to Appellant, the trial court based his statutory maximum

sentences on the fact that “1) Appellant and [Helsel] left the scene and

allowed the victim to lay [sic] on the road for almost two hours; that 2)

Appellant and [Helsel] went to another location to conceal evidence; and 3)

then only returned to the scene to tamper with evidence[; and] that 4)

Appellant operated his ATV in a reckless manner which resulted in the death

of the victim,” and thus based the sentences on essential elements of the

crimes.     Appellant’s Brief at 22, 25-26 (citations to reproduced record

omitted).    Appellant argues that leaving the scene is an element of the




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offense of accidents involving death or personal injury;3 tampering with

evidence is an offense to which he pleaded guilty and was sentenced

separately; and operating his ATV in a reckless manner is an element of the

offense of homicide by vehicle.4 Id. at 23, 26-27.

        Upon review, we find that Appellant has not shown any error on the

part of the trial court in fashioning his sentence.     The trial court deviated

from the sentencing guidelines after it stated that it was “especially

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3 The crime of accidents involving death or personal injury is defined as
follows.

        (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 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.

75 Pa.C.S. § 3742(a).

4   The crime of homicide by vehicle is defined as follows.

        (a) Offense.--Any person who recklessly or with gross
        negligence causes the death of another person while engaged in
        the violation of any law of this Commonwealth or municipal
        ordinance applying to the operation or use of a vehicle or to the
        regulation of traffic except section 3802 (relating to driving
        under influence of alcohol or controlled substance) is guilty of
        homicide by vehicle, a felony of the third degree, when the
        violation is the cause of death.

75 Pa.C.S. § 3732(a).




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troubl[ed]” by the fact that Appellant left Focht’s body unprotected from

oncoming traffic on a state highway for over two hours, and found

Appellant’s conduct was not that of a “typical hit-and-run case,” but was

“highly egregious,” “selfish, calculating and inhumane;” the trial court stated

that it also considered Appellant’s failure to aid Focht in any manner, his

attempt to “cover his tracks,” his admission to having a drinking problem,

his need for drug, alcohol, and behavioral evaluation and treatment, his age,

his prior convictions, his employment history, his guilty plea, and his

proffered explanation for why he acted the way he did on the night in

question. Trial Court Opinion, 11/7/2018, at 15-16; N.T., 9/11/2018, at 63-

66; see also Fullin, 892 A.2d at 849 (finding the “trial court’s use of the

words ‘seriously, seriously abrogated’ indicate that it was imposing a

sentence based on the fact that Fullin had not merely violated a duty of

care, but that Fullin’s behavior was a particularly egregious violation of that

duty”). Moreover, Appellant offers no argument that the circumstances of

this case are in any way typical of cases falling within the definition of the

offenses of accidents involving death or personal injury and homicide by

vehicle.

      We find that the factors which led to the court’s imposing statutory

maximum sentences were legal considerations and the trial court’s reasons

were aptly stated on the record.       See Conte, supra.       The trial court

properly considered the nature and circumstances of the offenses to which


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Appellant pleaded guilty, recognized the background that led to Appellant’s

criminal conduct, and took into account the history and characteristics of

Appellant, specifically noting that it did not find Appellant to be credible, that

Appellant did not accept full responsibility for his behavior, and that

Appellant had been released on bail for a separate DUI offense when the

accident occurred.      See id.        In addition, the trial court gave due

consideration to the information contained in the pre-sentence investigation

report, the sentencing guidelines, the pre-sentence memoranda submitted

by the parties, and the testimony of the witnesses and exhibits presented at

the sentencing hearing. See id.; see also N.T., 9/11/2018, at 64. Because

the trial court fashioned an individualized, reasonable sentence after taking

into   account   multiple   factors,   we   discern   no   abuse   of   discretion.

Accordingly, we affirm the judgment of sentence.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/21/2019




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