J-S93024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT J. KRITZAR

                            Appellant                 No. 1173 EDA 2016


           Appeal from the Judgment of Sentence dated March 7, 2016
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0005306-2014


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                            FILED MARCH 29, 2017

        Appellant, Robert J. Kritzar, appeals from the judgment of sentence

imposed after he entered an open guilty plea to homicide by vehicle while

driving under the influence of alcohol (DUI), homicide by vehicle, DUI,

involuntary manslaughter, and related Motor Vehicle Code infractions.       We

affirm.

        The trial court recited the factual background underlying this appeal as

follows:

              On May 28, 2014, at approximately 8:26 p.m., Trooper
        Javier Alvarez of the Pennsylvania State Police was on routine
        patrol traveling eastbound on State Route 22 in the area of
        Route 145, Lehigh County, Pennsylvania. He observed vehicles
        stopped in the westbound lanes of travel of State Route 22. The
        trooper made a U-turn and began to travel west on State Route
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     22. There, he observed a tractor-trailer which was stopped. He
     further observed a Jeep Wrangler crushed between the tractor-
     trailer and a Ford F-750 box truck.

           Trooper Alvarez further observed an off-duty paramedic,
     Peter Alexander Bronstein, attempting to assist the sole
     occupant of the Jeep Wrangler, Nathan Warke. Mr. Warke was
     trapped in the vehicle and was seriously injured. Mr. Warke
     subsequently died on scene. An autopsy was later performed on
     Mr. Warke, indicating that Mr. Warke died from multiple blunt
     force trauma injuries sustained as a result of a multiple motor
     vehicle collision.

           Various law enforcement personnel were called to the
     scene, including Trooper Brianne Glad, a member of the
     Pennsylvania State Police Collision and Accident Reconstruction
     Unit, Trooper Robert Griffin, Jr., and Corporal Jason Troutman.
     Through their investigation, it was determined that Frederick
     Ackerman was the operator of the tractor-trailer. Mr. Ackerman
     told the investigators that traffic traveling westbound on Route
     22 was stop and go at the time when an unknown red vehicle
     cut in front of him. Mr. Ackerman hit the tractor-trailer’s brakes
     hard to avoid a collision with the red vehicle. No collision with
     the red vehicle took place. He began to gain forward momentum
     again when he heard a collision behind his tractor-trailer.
     Thereafter, he heard and felt an impact with the rear of his
     tractor-trailer.

            On scene, Trooper Griffin observed an individual curled up
     in the fetal position between the box truck and the center
     concrete barrier that divided the east and westbound traffic. The
     person identified himself as the driver of the box truck and was
     later identified as the Appellant, Robert Kritzar. The Appellant
     was evaluated by paramedics on the scene and taken to Lehigh
     Valley Hospital by Trooper Griffin. No field sobriety tests were
     conducted on the scene due to the Appellant’s medical condition
     and the need for medical evaluation. At the hospital, a legal
     blood draw was performed at 9:40 p.m. The blood sample was
     later tested and it was determined that [Appellant’s] blood
     alcohol level was .22.

           During the transport to the hospital, the Appellant
     indicated that he was driving along westbound Route 22, saw
     brake lights in front of him, struck the Jeep in front of him, and
     then both vehicles hit the rear of Mr. Ackerman’s tractor-trailer.


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            Corporal Troutman, a member of the Forensic Evidence
     Unit of the Pennsylvania State Police, remained on-scene to
     collect evidence and to take photographs. When he opened the
     door to Appellant’s Ford F-750 box truck, he noted that there
     was money strewn about the inside because of the impact with
     the Jeep Wrangler. He further observed a backpack with a can
     of beer inside of it. During the course of an inventory search of
     the interior, the trooper also found a half-empty bottle of Jim
     Beam whiskey behind the passenger seats. Photographs were
     taken of the contents of the vehicle.

            At a later point in time, Trooper Glad conducted an
     accident reconstruction investigation.    In addition to taking
     measurements at the scene and noting particular markings in
     the roadway, Trooper Glad inspected the three vehicles involved
     in the accident. She did not find any mechanical failures or
     deficits in any of the vehicles that would result in causing the
     crash. She also noted that the roadway was clear and the
     lighting conditions adequate at the time of the accident and that
     there were no defects in the roadway.

            As part of her investigation of the Jeep, Trooper Glad
     noted that the Jeep’s left brake light and center brake light both
     exhibited what she determined to be “hot shock,” a condition
     where the filaments of the bulbs for the brake light, while being
     powered or illuminated, will stretch if subjected to a severe
     collision.    Trooper Glad determined that the “hot shock”
     observed indicated that at the time of the crash the Jeep was
     braking. Further, Trooper Glad downloaded the contents of the
     engine control module of the Ford F-750 driven by the Appellant.
     The engine download provided vehicle crash data for
     approximately one minute prior to impact and then
     approximately one minute post impact. Trooper Glad was able
     to determine that the Appellant’s box truck, three seconds prior
     to its impact with the Jeep, had been traveling at approximately
     69 miles an hour and the vehicle’s throttle was 100% engaged.
     One second later, the throttle decreased to approximately 14%.
     Based on her training and experience, Trooper Glad opined that
     the Appellant must have perceived something in front of him
     that would have caused him to take pressure off of the gas
     pedal.     The Commonwealth believed that it was either the
     tractor-trailer or the Jeep Wrangler engaging its brakes.

           Two seconds later, the box truck’s engine control module
     indicated an impact while the box truck was traveling

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      approximately 66 miles per hour. The engine control module
      further indicated that the Appellant finally engaged the brakes
      on the box truck one second after the impact with the Jeep
      Wrangler occurred.

            Following the impact, the box truck and the Jeep then
      traveled approximately 2 to 3 seconds as a single unit, and
      impacted with the rear of the tractor-trailer.

             This was the Appellant’s second DUI offense.

Trial Court Opinion, 6/9/16, at 3-6 (adopting the Commonwealth’s recitation

of facts at the plea hearing, N.T., 2/8/16, at 13-19).

      Appellant does not dispute that he entered an open guilty plea – with

no agreement as to sentencing – on February 8, 2016. The Commonwealth

explained that many of the charges would merge, so that Appellant’s

“ultimate exposure would be to the sentences he would get for homicide by

vehicle while DUI, which is a felony in the second degree, for which he faces

a statutory maximum of ten years.” N.T., 2/8/16, at 2-3. The trial court

repeated to Appellant that the sentence had “a 3 year mandatory minimum

and it has a maximum up to 10 years in prison . . . Do you understand that

charge and that penalty?” Id. at 6. Appellant answered, “Yes, ma’am.” Id.

The trial court clarified:

             And, again, I think I should reiterate for you that it would
      appear, out of all those charges, there are only two that really
      affect your exposure. One is the homicide by vehicle DUI related
      and the other one is the homicide by vehicle.

           One is punishable with a 3 year mandatory up to a 10 year
      maximum. The other one is punishable by up to 7 years. I can
      choose to run those two consecutive to one another, meaning
      one after another, or I can choose to run those two concurrently



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      with one another, meaning at the same time as one another. So
      do you understand what your maximum exposure is?

Id. at 11. Again, Appellant answered, “Yes, ma’am.” Id.

      After Appellant entered his plea, the trial court deferred sentencing to

March 7, 2016, when the trial court sentenced Appellant to an aggregate 5

to 10 years’ incarceration, followed by 5 years of probation. Appellant filed a

motion for reconsideration on March 16, 2016, which the trial court denied

on April 6, 2016. Appellant filed this timely appeal.

      Appellant presents a single issue for our review:

         Whether the Lower Court abused its discretion in imposing a
      manifestly excessive and unreasonable sentence which is at the
      statutory maximum and imposed when the Court failed to
      consider any significant mitigating factors, failed to apply and
      review all the necessary factors as set forth in 42 PA. C.S.A.
      §9721(b) and 42 PA. C.S.A. §9781(c) and (d) or otherwise failed
      to set forth appropriate reasons for its radical deviation from the
      standard sentencing ranges?

Appellant’s Brief at 7.

      Appellant 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:

            We conduct a four-part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal,
            see Pa.R.A.P. 902 and 903; (2) whether the issue was
            properly preserved at sentencing or in a motion to
            reconsider and modify sentence, see Pa.R.Crim.P. 720;
            (3) whether appellant’s brief has a fatal defect,
            Pa.R.A.P. 2119(f); and (4) whether there is a
            substantial question that the sentence appealed from is
            not appropriate under the Sentencing Code, 42 Pa.C.S.[
            ] § 9781(b).


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      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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted) (quoting Commonwealth v. Evans, 901 A.2d 528, 533

(Pa. Super. 2006)).

      Appellant filed a timely post-sentence motion and a notice of appeal,

and included a statement pursuant to Rule 2119(f) in his brief. Appellant’s

statement reads:

      [Appellant] is requesting the review of his sentence based upon
      his belief that the Sentencing Court abused its discretion when it
      imposed a harsh and excessive sentence contrary to the
      fundamental norms of the Sentencing Guidelines. The sentence
      imposed was the maximum legally allowable sentence and was
      more than double the standard sentencing range as applied to
      [Appellant]. The deviation from the guideline range must be
      supported by appropriate and factually justifiable reasons and
      [Appellant] does not believe that the Court presented such
      justification.

Appellant’s Brief at 11.

      We thus determine 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.”    Griffin, 65 A.3d at 935 (citation and internal


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quotation marks omitted).     In making this determination, “we cannot look

beyond the statement of questions presented and the prefatory 2119(f)

statement    to   determine    whether     a   substantial    question   exists.”

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012).

      Our review indicates that Appellant has raised a substantial question.

See Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014)

(“This Court has held that claims that the sentencing court imposed a

sentence outside the standard guidelines without stating adequate reasons

on the record presents a substantial question”).        Although not expressly

included in his 2119(f) statement, Appellant’s issue as it relates to the

court’s alleged failure to consider the necessary sentencing factors, including

mitigating factors, also raises a substantial question.      Commonwealth v.

Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (“It is well-established that a

sentencing court’s failure to consider mitigating factors raises a substantial

question”); Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super.

2013) (concluding that Appellant’s argument that the sentencing court did

not consider the appropriate sentencing factors raises a substantial

question).    We therefore proceed to examine the merits of Appellant’s

sentencing issue, recognizing our standard of review.

         Our standard of review of a challenge to the discretionary
      aspects of sentence is well-settled:

         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

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            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.

     In every case in which the court imposes a sentence for a felony
     or a misdemeanor, the court shall make as a part of the record,
     and disclose in open court at the time of sentencing, a statement
     of the reason or reasons for the sentence imposed.            The
     sentencing guidelines are not mandatory, and sentencing courts
     retain broad discretion in sentencing matters, and therefore,
     may sentence defendants outside the [g]uidelines. In every
     case where the court imposes a sentence ... outside the
     guidelines adopted by the Pennsylvania Commission on
     Sentencing ... the court shall provide a contemporaneous written
     statement of the reason or reasons for the deviation from the
     guidelines. However, [t]his requirement is satisfied when the
     judge states his reasons for the sentence on the record and in
     the defendant's presence. Consequently, all that a trial court
     must do to comply with the above procedural requirements is to
     state adequate reasons for the imposition of sentence on the
     record in open court.

        When imposing 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.   Where pre-
     sentence reports exist, we shall ... presume that the sentencing
     judge was aware of relevant information regarding the
     defendant’s character and weighed those considerations along
     with mitigating statutory factors.        A pre-sentence report
     constitutes the record and speaks for itself.

Antidormi, 84 A.3d at 760–61 (internal quotation marks and citations

omitted).

     Instantly, the trial court stated that it had reviewed “every word and

every page” of the pre-sentence investigation report, which had attached to

it “the sentencing guidelines, some photographs that were taken from the


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crime scene, a copy of the criminal complaint and affidavit of probable cause

and then numerous letters from Mr. Warke’s family and friends.”            N.T.,

3/7/16, at 5. The trial court also reviewed Appellant’s mental health records

and letters on behalf of Appellant.    Id.   In addition, the trial court heard

from Appellant, as well as three of the victim’s friends and the victim’s

father. At the conclusion of the sentencing hearing, the trial court addressed

Appellant:

      [Y]ou made some horrible decisions that put you on the road
      after having consumed an unbelievable amount of alcohol in a
      truck.

             And that was a recipe for tragedy. . . .

           This can’t be a personality contest. I can’t base a sentence
      on who was the better, nicer person, you or the victim, or who
      has more support today. . . .

            But you have had a horrible life.     You’ve had a horrible,
      horrible life.

            And it seems that any time that you were able to make
      headway in your life – you are a one-step-forward-and-two-
      steps-back kind of guy. And you drank for solace. You were
      self-medicating. You drank to avoid feeling things that you
      should have been feeling and dealing with.

             And it doesn’t excuse the behavior. It causes me to say
      you can’t undo your past but you have to make a decision as to
      how you want to go forward. You have to, at some point, walk
      away from what has been in your life into something that’s more
      positive and productive.

           Regardless of the sentence that I give you, one, this young
      man is not going to be brought back and two, these people are
      not going to be made whole. But three, regardless of the
      sentence I give you, you will be released into the community at
      some point. . . .



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             So that    is what you need to be thinking about in prison.
      The sentence     isn’t going to satisfy anyone because Mr. Warke is
      right, there’s   not parity between a life without your loved one
      and whatever     I impose on you.

N.T, 3/7/16, at 32-35.

      The Commonwealth then referenced the pre-sentence investigation

report and the fact that Appellant’s first DUI was less than two years prior to

the underlying DUI.      Id. at 35.   The Commonwealth further noted that in

this case, Appellant was “on the job,” driving a commercial vehicle, and had

a blood alcohol level of .22 at the time of the crash. Id. at 36-38.

      Prior to imposing Appellant’s sentence, the trial court addressed the

victim’s friends and family:

            I have a lot of masters to serve in order to do justice. And
      I’m stammering around because I’m trying to find a way to
      gently say what cannot be gently said, which is, I’m going to
      decline to run the two sentences that can be given that don’t
      merge consecutive to one another. I will not do that.

             And it’s not because I don’t hear you and it’s not because I
      don’t feel your pain. It’s because I do believe that there has to
      be some acknowledgment that [Appellant] has chosen to plead
      guilty, to plead guilty open and to accept responsibility. . . .

            I believe [Appellant] has caused all of you irreparable
      harm and that his conduct was nothing other than dangerous,
      reckless, and unconscionable. But at the end of the day, I have
      to do what I think is right.

N.T., 3/7/16, at 38-39.

      The trial court then stated Appellant’s sentence:
            So in 5306 of 2014, in Counts 1, 3, 4, 5 and 6, all of those
      counts merge. And the sentence is . . . imprisonment for a
      period of not less than 5 nor more than 10 years in a state
      correctional institution. . . .



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            As to Count 2, the sentence is . . . probation for a period
      of 5 years under the supervision of the Pennsylvania State Parole
      Board to run consecutive to the sentence previously imposed.
      ...

            So the sum total of the sentence here is 5 to 10 years in a
      state correctional institution to be followed by 5 years of state
      supervised probation.

Id. at 39-41.

      Based on the foregoing, we conclude that the record adequately

supports the trial court’s imposition of the statutory-maximum sentence.

“The court is not required to parrot the words of the Sentencing Code,

stating every factor that must be considered under Section 9721(b). . . .

[T]he record as a whole must reflect due consideration by the court of the

statutory considerations.”   Antidormi, 84 A.3d at 761 (internal quotation

marks and citation omitted). Furthermore, Appellant’s claim that the court

failed to consider the necessary sentencing factors, including mitigating

facts, is meritless because the court had the benefit of a pre-sentence

investigation report. See id.; Commonwealth v. Downing, 990 A.2d 788,

794 (Pa. Super. 2010) (“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 court has been so informed, its discretion should not be

disturbed”). Finally, Appellant does not dispute the open nature of his plea.

As described above, Appellant was advised repeatedly that his sentence

could range from the mandatory 3 year minimum to the 10 year maximum.

He nonetheless claims that the trial court “defeated [his] expectation of

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receiving the three year mandatory but also gave [him] no credit for his

remorse and acceptance of responsibility.”        Appellant’s Brief at 14.   Any

expectation Appellant may have had of a 3 year minimum sentence has no

basis in the record.      Moreover, the trial court did credit him for his

acceptance of responsibility when it ran his sentences concurrently rather

than consecutively.    N.T., 3/7/16, at 39 (declining to run Appellant’s two

sentences consecutively “because I do believe that there has to be some

acknowledgment that [Appellant] has chosen to plead guilty, to plead guilty

open and to accept responsibility”).        Accordingly, we discern no abuse of

sentencing discretion by the trial court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2017




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