J-A12033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JASON AARON MACKEL,

                        Appellant                  No. 1341 WDA 2016


                  Appeal from the Order September 8, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0015783-2014


BEFORE: OLSON, SOLANO and RANSOM, JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 29, 2017

     Appellant, Jason Aaron Mackel, appeals from the judgment of sentence

entered on April 7, 2016, as made final by the denial of Appellant’s

post-sentence motion by operation of law, on September 8, 2016.          We

affirm Appellant’s judgment of sentence, but vacate his conviction under 75

Pa.C.S.A. § 3802(a)(1) at count 5 in view of this Court’s recent decision in

Commonwealth v. Farrow, 2017 WL 3185316 (Pa. Super. 2017).

     We briefly summarize the facts and procedural history of this case as

follows. On November 12, 2014, Appellant struck a pedestrian with his car

in the Wilkinsburg section of Allegheny County, Pennsylvania.     The victim

was taken to the hospital for medical treatment. She suffered two broken

legs and, at one point, required a breathing tube. The hospital eventually

released the victim to a skilled nursing facility where she died on March 28,
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2015. At the time of the accident, Appellant remained on the scene until the

police arrived. Appellant admitted to police that he had consumed alcohol

before   driving.      His blood alcohol         content   (BAC)   was .288.    The

Commonwealth charged Appellant with aggravated assault by vehicle while

driving under the influence (DUI) of alcohol, recklessly endangering another

person (REAP), DUI (highest rate of alcohol), DUI (general impairment –

incapable of safe driving), DUI (general impairment – accident resulting in

death of another person), and careless driving.1

       A preliminary hearing was scheduled for November 20, 2014, but

Appellant waived the preliminary hearing and was released on his own

recognizance.       Thereafter, the trial court held a pre-trial conference and

granted several continuances for discovery.           On September 28, 2015, the

parties appeared before the trial court to select a new trial date and for

Appellant to sign a new subpoena.              At that proceeding, the trial court

ordered Appellant to submit to drug and alcohol tests.              Appellant tested

positive for cocaine and had a BAC of .13.                  The trial court revoked

Appellant’s bond and remanded him to county jail.              On October 7, 2015,

Appellant filed a motion to reinstate his bond. The trial court granted the




____________________________________________


1
  75 Pa.C.S.A. § 3735.1, 18 Pa.C.S.A. § 2705, 75 Pa.C.S.A. 3802(c), 75
Pa.C.S.A. § 3802(a)(1), 75 Pa.C.S.A. § 3802(a)(1)/75 Pa.C.S.A. § 3804, and
75 Pa.C.S.A. § 3714, respectively.



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request and ordered Appellant to participate in outpatient drug and alcohol

rehabilitation.

        On January 19, 2016, Appellant pled guilty to REAP, the DUI offenses,

and   careless    driving.   The   Commonwealth      withdrew      the   remaining

aggravated assault by vehicle while DUI charge.        The trial court deferred

sentencing for the preparation of a pre-sentence investigation (PSI) report.

On April 7, 2016, the trial court imposed an aggregate sentence of six

months to one year of imprisonment, followed by 18 months of probation.

More specifically, the trial court imposed an aggravated-range sentence of

three to six months of imprisonment, followed by 18 months of probation for

REAP.     The trial court also imposed an aggravated-range sentence of three

to six months of imprisonment for DUI (highest rate of alcohol) to be served

consecutively to the sentence for REAP. The trial court merged Appellant’s

remaining DUI – general impairment convictions with his conviction for DUI

– highest rate of alcohol.   Finally, although the trial court found Appellant

guilty of careless driving, it did not impose a further penalty.

        After sentencing, Appellant orally moved for bond pending appeal.

N.T., 4/7/2016, at 20-23.    The trial court denied the request. Id. Appellant

filed a petition for bail, and a subsequent addendum to that petition, with

this Court on April 11, 2016 and April 20, 2016, respectively. On May 20,

2016, this Court issued an order directing the trial court to “enter a bail

order pending appeal which is consistent with the bail order that was in

effect prior to verdict [… or a] modif[ied] bail order pursuant to Pa.R.Crim.P.

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521(D) with any conditions it deems necessary, but should not deny bail

completely.” Superior Court Order, 5/20/2016, at 1. On May 26, 2016, the

trial court entered an order reinstating Appellant’s bail under the same

conditions that were in place prior to the verdict. On June 2, 2016, the trial

court entered an order granting a stay of the sentence imposed pending

disposition of this direct appeal.

       While the bond issue was pending before this Court, Appellant filed a

timely post-sentence motion with the trial court on April 14, 2016. On

September 8, 2016, the Allegheny County Department of Court Records

entered an order denying Appellant’s post-sentence motion by operation of

law. This timely appeal ensued.2

       On appeal, Appellant presents the following issue, with three subparts,

for our review:

       I.     Whether the trial court committed a manifest abuse of
              discretion by imposing a clearly unreasonable sentence in
              the aggravated range when it:

              A. Failed to consider [] Appellant’s need for
                 rehabilitation, a pertinent sentencing factor under
                 42 Pa.C.S.[A.] § 9721;

              B. Impermissibly considered the socioeconomic
                 status of [] Appellant in imposing sentence; and
____________________________________________


2
    On September 9, 2016, Appellant filed a notice of appeal. By order
entered on September 21, 2016, the trial court directed Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant complied timely on October 18, 2016. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on November 14, 2016.



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            C. Providing insufficient reasons for sentencing []
               Appellant in the aggravated range where the only
               reasons offered to support an aggravated
               sentence constitute[d] “double counting” in light
               of [] Appellant’s prior bond revocation.

Appellant’s Brief at 1-2 (complete capitalization omitted).

      Appellant claims that the trial court abused its discretion, in several

respects, when it imposed aggravated range sentences in this case.        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.A. § 9781(b).

Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (internal

citation omitted).

      Here, Appellant filed a timely notice of appeal, challenged the

discretionary aspects of his sentence, and included a statement in his

appellate brief pursuant to Pa.R.A.P. 2119(f). Accordingly, we must consider

whether Appellant raises a substantial question to implicate our review.

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Id. (citation omitted). “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


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provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process.”          Id. (citation omitted).      We

previously determined that the failure to set forth adequate reasons on the

record, pursuant to 42 Pa.C.S.A. § 9721(b), to justify an aggravated range

sentence raises a substantial question. Id.; see also Commonwealth v.

Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (holding that “an excessive

sentence claim – in conjunction with an assertion that the trial court failed to

consider mitigating factors – raises a substantial question.”). We have also

concluded that a claim that the trial court double-counted factors already

considered in the sentencing guidelines, as the reason for imposing a

lengthy sentence, raises a substantial question.      See Commonwealth v.

Rush, 2017 WL 1955302, at *10 (Pa. Super. 2017) (citation omitted). As

such, we proceed to the merits of all three sub-parts of Appellant’s claim.

      Our standard of review is as follows:

      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.

Id. (citation omitted).

      “[T]he court shall follow the general principle that the 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


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the victim and on the community, and the rehabilitative needs of the

defendant.”       42 Pa.C.S.A. § 9721(b).          The trial court is required also to

consider the sentencing guidelines. See Commonwealth v. Bonner, 135

A.3d 592, 604 (Pa. Super. 2016). When the challenged sentence is within

the sentencing guidelines, we may only vacate a sentence where the

application of the guidelines would be clearly unreasonable. Id., citing 42

Pa.C.S.A. § 9781(c)(2).         Here, Appellant received a sentence within the

aggravated range of the guidelines, thus, we may only vacate his sentence if

it was clearly unreasonable. Id.

     In his first issue presented, Appellant claims the trial court failed to

consider    his    rehabilitative   needs    and    the   imposition   of   a   term   of

incarceration ran counter to his recovery for drug and alcohol addiction.

Appellant’s Brief, at 19-22.        Appellant argues that “[a]s a court-mandated

condition of [his bond] reinstatement, [he] was required to participate in a

drug rehabilitation program” and, thus, he posits that “[i]t is contradictory

for the sentencing court, on the one hand, to note that [] Appellant has an

addiction and is making strides on it, and, then, on the other hand, to yank

him from the system built to maintain his sobriety and incarcerate him.” Id.

at 20-21.

     Initially, we note that “[w]here a PSI exists, we presume that the trial

court was aware of relevant information regarding the defendant's character

and weighed those considerations along with mitigating statutory factors. A

PSI constitutes the record and speaks for itself.” Bonner, 135 A.3d at 605

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(original brackets and citation omitted). Here, the trial court was provided

with a PSI and we presume the trial court was aware of the relevant

information therein.

      Moreover, upon further review of the certified record, we discern no

abuse of discretion in considering Appellant’s rehabilitative needs when

imposing Appellant’s sentence. The trial court determined that incarceration

was necessary because Appellant appeared for a court proceeding, nine

months after the incident at issue, under the influence of alcohol and

cocaine.     Id. at 15, 20.     Although this was also the reason for the

revocation of his bond, it was also proper for the trial court to consider as a

factor under Section 9721, since the episode underscored the continuing

danger Appellant posed to society.

      Next, Appellant “contends that the sentence imposed by the trial court

was the product of partiality, bias or ill-will toward [] Appellant, as indicated

vis-à-vis the court’s remarks about [his] socioeconomic status.” Appellant’s

Brief, at 22.     Citing specific statements made by the trial court at

sentencing, Appellant maintains the sentencing court “indicated its belief

that [] Appellant, due to his financial position, inhibited the Commonwealth’s

ability to prosecute its case and held this against [him,]” “simply because

[he] employed the services of an expert witness[.]” Id. at 22-23.

      At the start, we recognize that the trial court, in fact, commented

directly on Appellant’s ability to retain a private defense expert.        N.T.,

4/7/2016, at 14. However, the trial court made the comments in response

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to the Commonwealth’s recitation of reasons for withdrawing the most

serious offense against Appellant, the aggravated assault charge. See id. at

12-14.    While we find that remarking upon Appellant’s ability to retain an

expert was intemperate,3 we conclude the trial court’s comments did not

show bias in sentencing Appellant. On this issue, the trial court also made

intemperate remarks to the Commonwealth, saying it “lacked common

sense” and was “toothless in [its] prosecution.” Id. at 14.    In balancing the

entire exchange between the parties and the trial court, we conclude that

the trial court was merely commenting on the fact that it believed that

standard range sentences for DUI and REAP were too lenient in this matter,

because Appellant struck the pedestrian victim who later died.       Id. at 12.

The trial court simply did not punish Appellant based upon his socio-

economic status.


____________________________________________


3
  Although a judge’s remark may be characterized as intemperate in nature,
that remark alone cannot establish bias or partiality.          See Corbin v.
Cowan, 716 A.2d 614, 619 (Pa. Super. 1998). We remind the trial court
that “[a] judge should not employ hostile or demeaning words in opinions or
in written or oral communications with lawyers, parties or witnesses.” Pa.
Code of Civility, Art. I (5). A trial court judge should not comment “upon
race, sex, gender, religion, national origin, ethnicity, disability, age, sexual
orientation, marital status, socioeconomic status, or political affiliation, and
shall not permit court staff, court officials, or others subject to the judge's
direction and control to do so.” Pa. Code of Judicial Conduct Rule 2.3(B).
Moreover, “[a] judge shall be patient, dignified, and courteous to litigants,
jurors, witnesses, lawyers, court staff, court officials, and others with whom
the judge deals in an official capacity[.]” Pa. Code of Judicial Conduct Rule
2.8.



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       Finally, Appellant contends that the trial court “double counted” two

sentencing factors that were already contemplated by the sentencing

guidelines when imposing his aggravated sentence.            Appellant’s Brief, at

26-28. Appellant claims that the sentencing court erred in considering his

BAC when fashioning an aggravated sentence since the Motor Vehicle Code

already    imposes     an    enhanced      mandatory   minimum   punishment    for

individuals whose BAC levels are in violation of the highest of three

sentencing tiers. Id. at 27-28.         Appellant also argues that he “was doubly

punished for the same act – violating the conditions of his bond” when “the

trial court revoked [his] bond and remanded him to jail, released him from

jail, and then, because of the violation, sentenced him to jail, again.” 4 Id. at

28.

       When deciding whether a court has improperly based an aggravated

sentence on a factor that is already considered by the sentencing guidelines,

we have stated:

       [T]he guidelines were implemented to create greater consistency
       and rationality in sentencing. The guidelines accomplish the
       above purposes by providing a norm for comparison, i.e., the
       standard range of punishment, for the panoply of crimes found
       in the crimes code and by providing a scale of progressively
       greater punishment as the gravity of the offense increases....


____________________________________________


4
  As set forth above in our discussion pertaining to Appellant’s rehabilitative
needs, we conclude that the trial court permissibly considered Appellant’s
intoxication at a prior proceeding as warranting incarceration.



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      The provision of a “norm” also strongly implies that deviation
      from the norm should be correlated with facts about the crime
      that also deviate from the norm for the offense, or facts relating
      to the offender's character or criminal history that deviates from
      the norm and must be regarded as not within the guidelines
      contemplation. Given this predicate, simply indicating that an
      offense is a serious, heinous or grave offense misplaces the
      proper focus. The focus should not be upon the seriousness,
      heinousness or egregiousness of the offense generally speaking,
      but, rather, upon how the present case deviates from what
      might be regarded as a “typical” or “normal” case of the offense
      under consideration.

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

omitted).   Moreover, “[a]n aggravated range sentence [is] justified to the

extent that the individual circumstances of [the defendant's] case are

atypical of the crime for which [the defendant] was convicted, such that a

more severe punishment is appropriate.” Id. The Fullin Court affirmed an

aggravated range sentence because the trial court justified the sentence by

opining on “the extreme indifference for the consequences of [the

defendant's] actions and because of the extreme nature of the harm to the

victim.” Id. at 849 (citation omitted).

      We conclude that the trial court did not “double-count” sentencing

factors when fashioning Appellant’s term of incarceration.    The trial court

justified Appellant’s aggravated sentences because this case did not involve

the typical or normal case of DUI or REAP.       Furthermore, Appellant was

intoxicated, over three times the legal limit, when he struck the victim with

such force that “she went 50 feet from the point of impact” and then

Appellant’s car “skidded 22 feet.”        Id. at 8.   The trial court further



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recognized that Appellant was so intoxicated that he did not render aid and

could not retrieve his information when police arrived.          Id. at 14.

Furthermore, the victim ultimately died. This clearly was not a typical DUI

or REAP case. As such, under the facts of this matter, Appellant’s aggregate

sentence of six months to one year of imprisonment, followed by 18 months

of probation, was reasonable. Accordingly, we discern no abuse of discretion

in sentencing Appellant.5

       DUI (general impairment – incapable of safe driving) conviction

vacated. Judgment of sentence, as amended, affirmed.




____________________________________________


5
      Finally, we recognize that Appellant’s convictions for DUI (general
impairment – incapable of safe driving) and DUI (general impairment –
accident resulting in death of another person) arose from a single criminal
act in violation of the same criminal statute. This Court recently held that
such a scenario constitutes a violation of the protection against double
jeopardy under the United States and Pennsylvania Constitutions. See
Farrow, 2017 WL 3185316. This is so despite the fact that Appellant’s DUI
– general impairment convictions merged for sentencing purposes because
of the “significant collateral consequences” including, inter alia,
“unwarranted enhancement of [] prior record score (or prior DUI offense
history) in subsequent criminal proceedings and unjustified impediments to
restoration of [] driving privileges.” Id. at *8. Hence, we vacate Appellant’s
conviction for DUI (general impairment – incapable of safe driving) pursuant
to 75 Pa.C.S.A. § 3802(a)(1) as set forth at count 5 of the criminal
information. Id.      Because we can vacate the DUI (general impairment –
incapable of safe driving) conviction without disturbing the overall
sentencing scheme, we need not remand.              See Commonwealth v.
Lomax, 8 A.3d 1264, 1268 (Pa. Super. 2010) (citation omitted).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2017




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