J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 NICOLE NOELLE ELINSKY                 :
                                       :
                   Appellant           :   No. 1912 EDA 2017

         Appeal from the Judgment of Sentence February 15, 2017
   In the Court of Common Pleas of Chester County Criminal Division at
                     No(s): CP-15-CR-0002383-2015

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 NICOLE NOELLE ELINSKY                 :
                                       :
                   Appellant           :   No. 1913 EDA 2017

         Appeal from the Judgment of Sentence February 15, 2017
   In the Court of Common Pleas of Chester County Criminal Division at
                     No(s): CP-15-CR-0002853-2015

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 NICOLE NOELLE ELINSKY                 :
                                       :
                   Appellant           :   No. 1914 EDA 2017

         Appeal from the Judgment of Sentence February 15, 2017
   In the Court of Common Pleas of Chester County Criminal Division at
                     No(s): CP-15-CR-0001053-2016
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    NICOLE NOELLE ELINSKY                        :
                                                 :
                       Appellant                 :   No. 1915 EDA 2017

           Appeal from the Judgment of Sentence February 15, 2017
     In the Court of Common Pleas of Chester County Criminal Division at
                       No(s): CP-15-CR-0001143-2016


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.:                                    FILED JULY 17, 2018

       Nicole Noelle Elinsky appeals from the aggregate judgment of sentence

of three to six years incarceration, imposed following her convictions at four

separate dockets for DUI-related offenses.            At No. 2016-1053, Appellant

challenges the denial of her suppression motion seeking application of North

Dakota v. Birchfield, 136 S.Ct. 2160 (2016) (holding warrantless blood tests

cannot be justified as a search incident to arrest). Appellant also challenges

the discretionary aspects of her aggregate sentence. We affirm.1

       We briefly state the underlying facts. Appellant committed the first DUI

on May 2, 2015 (No. 2015-2383). The officer asked for her consent to draw

blood, which she declined. Appellant was informed of the consequences of


____________________________________________


1 Appellant lodged a total of four notices of appeal, one at each criminal
docket, which we have consolidated.

                                           -2-
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18



refusal, and continued to refuse.          She was later charged with, inter alia,

refusing blood testing. Regarding her next DUI, on May 10, 2015 (No. 2015-

2853), Appellant initially refused, but ultimately relented and consented to a

blood draw, which resulted in DUI charges.

       As these cases proceeded on their course, Appellant was arrested for a

third DUI, which occurred on December 26, 2015 (case 2016-1053).

Appellant initially pleaded guilty to the two May DUIs on January 5, 2016, and

sentencing was deferred pending a pre-sentence report.             While awaiting

sentencing, Appellant committed her fourth DUI, occurring March 14, 2016.2

       On June 23, 2016, the United States Supreme Court issued Birchfield.

Due to that case, and other defects in the initial guilty pleas, Appellant’s guilty

pleas to the May DUI charges were withdrawn and amended.                 Appellant

pleaded guilty to amended charges on August 5, 2016. On that same date,

Appellant also pleaded guilty to the March 14, 2016 DUI. Sentencing was

deferred.

       At the remaining case, relating to the December 26, 2015 DUI, Appellant

filed a motion to suppress based on Birchfield, which the trial court denied

following a hearing.        On January 12, 2017, the parties proceeded to a



____________________________________________


2 Appellant was informed of the consequences of refusal and consented to the
blood draw.    The Commonwealth agreed that the blood evidence was
inadmissible.

                                           -3-
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18



stipulated non-jury trial, and the trial court found Appellant guilty of, inter

alia, DUI with a BAC exceeding .16.

      On February 15, 2017, the trial court sentenced Appellant at all four

cases, and imposed an aggregate term of three to six years incarceration.

Following the denial of post-sentence motions, Appellant filed timely notices

of appeal in all four cases, which we have consolidated. Appellant complied

with the order to file a concise statement, and the trial court issued a thorough

opinion. The matter is ready for review of Appellant’s claims:

      I. Did the trial court err in denying Appellant’s motion to suppress
      regarding the results of the blood test performed pursuant to a
      warrantless search of Appellant’s blood? Specifically, did the trial
      court err in finding that consent was given voluntarily for the
      warrantless blood draw and the use of the results obtained from
      the search?

      II. Did the trial court abuse its discretion when it imposed an
      aggregate sentence of three (3) years to six (6) years on Criminal
      Docket Numbers CP-15-CR-1053-2016, CP-15-CR-1143-2016,
      CP-15-CR-2383-2015, and CP-15-CR-2853-2015?

Appellant’s brief at 5.

      The Birchfield issue applies only to Appellant’s charges at No. 2015-

1053. We apply the following standard of review.

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether
      the suppression court’s factual findings are supported by the
      record and whether the legal conclusions drawn from those facts
      are correct. Because the Commonwealth prevailed before
      the suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as

                                      -4-
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


      remains uncontradicted when read in the context of the record as
      a whole. Where the suppression court’s factual findings are
      supported by the record, we are bound by these findings and may
      reverse only if the court’s legal conclusions are erroneous. Where,
      as here, the appeal of the determination of the suppression court
      turns on allegations of legal error, the suppression court’s legal
      conclusions are not binding on an appellate court, whose duty it
      is to determine if the suppression court properly applied the law
      to the facts. Thus, the conclusions of law of the courts below are
      subject to our plenary review.

Commonwealth v. Raglin, 178 A.3d 868, 871 (Pa.Super. 2018).

      Additionally, where the voluntariness of consent to search is at issue,

the following principles guide our review.

      A search conducted without a warrant is deemed to be
      unreasonable and therefore constitutionally impermissible, unless
      an established exception applies. One such exception
      is consent, voluntarily given.     The central Fourth Amendment
      inquiries in consent cases entail assessment of the constitutional
      validity of the citizen/police encounter giving rise to the consent;
      and, ultimately, the voluntariness of consent.           Where the
      underlying encounter is found to be lawful, voluntariness becomes
      the exclusive focus.

Commonwealth v. Strickler, 757 A.2d 884, 888–89 (Pa. 2000) (citations

and footnotes omitted).     The voluntariness standard for consent is less

stringent than the tests governing waiver of other constitutional rights. Id.

at 889 n.3 (“[W]hile the waiver analysis appropriately applies to safeguard

constitutional guarantees involving the preservation of a fair trial of criminal

defendants, it does not pertain to the wholly different protections of the Fourth

Amendment[.]”) (citations omitted).      The test is objective in nature, with



                                      -5-
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


some subjective considerations.     Strickler, supra at 901 (“Additionally,

although the inquiry is an objective one, the maturity, sophistication and

mental or emotional state of the defendant (including age, intelligence and

capacity to exercise free will), are to be taken into account.”) (citations

omitted).

      The facts relevant to the Birchfield issue were set forth at the

suppression hearing as follows.    On December 26, 2015, Officer Matthew

Grandizio responded to a reported accident in a parking lot. Officer Grandizio

spoke to Appellant, who was driving one of the vehicles. The officer observed

indicia of intoxication, and, following Appellant’s unsatisfactory performance

on field sobriety tests, arrested her for DUI. Appellant was transported to the

hospital in handcuffs, her blood was drawn, and testing revealed that her BAC

level was .194.    Officer Grandizio testified that upon arrest he advised

Appellant of the process going forward, which included his request for a blood

draw. Once they arrived at the hospital, the officer again informed her that

he “need[ed] a sample of your blood.” N.T. Suppression, 12/20/16, at 16.

Appellant did not balk, complain, or otherwise question the procedures, and

consented to the blood draw. Critically, the officer did not read Appellant the

then-standard implied consent form, which set forth the pre-Birchfield

understanding of the consequences attached to refusal, nor did he otherwise

discuss with her the consequences of refusal.


                                     -6-
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


      Appellant also testified. She stated that she did not think she had a

choice in the matter, due to her prior DUI arrests.        As a result of those

incidents, she was familiar with the implied consent form and the penalties for

refusing.   Furthermore, Appellant noted that she had, in fact, refused to

provide a blood sample during a prior DUI arrest and was charged with refusal.

Therefore, while Appellant consented to the blood draw, she maintained that

her “consent . . . was not voluntarily tendered as it was tainted by her

knowledge of the enhanced penalties related to refusal to submit to chemical

testing.” Motion to Suppress, 12/7/16, at 2. This argument is continued on

appeal.

      The trial court opinion provides an extensive analysis, which the

Commonwealth adopts. Commonwealth’s brief at 14. That analysis rests on

two points. First, the court concluded that Appellant’s prior experience with

the implied consent form, and the fact that she was previously charged with

refusal, “tainted” her later interaction with Officer Grandizio, but that the

passage of time served to purge the taint.        Thus, “the police officer who

initiated the blood draw request on December 26, 2015 did not exploit the

prior illegality in order to obtain [Appellant]’s consent[.]” Trial Court Opinion,

8/16/17, at 21.

      Next, the trial court concluded that the remaining question was whether

Appellant validly consented to the search, and, examining the totality of the


                                      -7-
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


circumstances, determined that her consent was not tainted by her knowledge

of the implied consent warnings. We quote the trial court’s opinion:

      We note that there is no Pennsylvania case law directly on point
      supporting or opposing [Appellant]’s theory. However, analogizing
      [Appellant]’s case to others in which subsequent searches are
      preceded by unconstitutional law enforcement conduct we note
      that there is authority for the proposition that taint from the prior
      unlawful conduct may dissipate and become so attenuated that a
      subsequent valid search, or, in a different context, a subsequent
      valid confession after a first un-Mirandized interrogation, is not
      necessarily precluded simply because the [Appellant] was
      subjected previously to some improper government conduct.

      We find that the passage of seven (7) months’ time, the fact of a
      different jurisdiction, a different officer, the absence of the
      offensive [implied consent] warnings, the fact that the
      “misconduct” at issue, the former provision of the [implied
      consent] warnings, was at the time a requirement of Pennsylvania
      law and not an error that arose by virtue of imprudent or improper
      actions of the police and that the police officer who initiated the
      blood draw request on December 26, 2015 did not exploit the prior
      illegality in order to obtain [Appellant]’s consent, and that the
      [Appellant], as we will discuss below, gave her unqualified and
      volitional consent to the search are sufficient to demonstrate that
      the connection between the prior illegality (the provision of
      [implied consent] warnings seven (7) months earlier) and the
      challenged evidence has become so attenuated as to dissipate any
      taint that might, arguably, have otherwise existed and that, as we
      will discuss below, the BAC evidence at issue sub judice resulted
      from an intervening independent act of free will.

Trial Court Opinion, 8/16/17, at 19-21.

      The trial court then proceeded to examine whether Appellant’s consent

was voluntary in light of the totality of the circumstances, summarizing its

findings as follows:



                                      -8-
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


      The factors that weigh in favor of concluding that [Appellant]’s
      consent was not voluntary include that she was in police custody
      when she was asked to consent to the blood test, that she was
      not advised of her right to refuse, and her prior experience with
      the [implied consent] warnings. The factors that weigh in favor of
      concluding that [Appellant]’s consent was voluntary include the
      fact that seven (7) months had passed since her last DUI
      experience; she was in a different jurisdiction from her earlier DUI
      experiences; she was interacting with different officers than she
      had during her previous DUI experiences; the officers on
      December 26, 2015 did not read to [Appellant] the [implied
      consent] warnings or connect her refusal to any type of criminal
      or civil penalty; [Appellant] did not inquire about possible
      penalties linked to refusal or express to the officers in any way
      that she did not wish to consent or was hesitant about the
      process; the entire interaction between [Appellant] and the
      officers was cordial and polite with [Appellant] described by the
      officers as very cooperative and pleasant . . . .

            ....

      The factors demonstrating that [Appellant]’s consent to the DUI
      blood test on December 26, 2015 was voluntary far outweigh the
      limited factors relied upon by the [Appellant] to suggest that her
      consent was involuntary. Consequently, we conclude, as we did at
      the close of the Suppression Hearing held on December 20, 2016,
      that the Commonwealth had met its burden to prove by clear and
      convincing evidence that [Appellant]’s consent to the chemical
      test of her blood for DUI purposes on December 26 2015 was
      voluntarily given under the totality of the circumstances.
      Accordingly, we denied [Appellant]’s suppression motion.

Trial Court Opinion, 8/16/17, at 33-34 (paragraph break added).

      Our standard of review requires that we accept the trial court’s

credibility determinations.   The trial court accepted her testimony that her

consent in this instance was motivated by knowledge of the consequences for

refusing, and balanced that knowledge against other factors.


                                     -9-
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


       Preliminarily, we disagree with the trial court’s analysis regarding “taint”

and whether that taint was purged by, inter alia, the passage of time and the

fact that a different officer was involved. A taint analysis necessarily involves

an act that was unlawful. Here, the trial court refers to the prior warnings as

the relevant unlawful act that tainted the later interactions, but the fact is that

the warnings were not unlawful when issued. Thus, Appellant’s knowledge of

the legal consequences if she were to refuse on the day of her arrest was not

“tainted” by her prior experience; her knowledge was objectively correct.

Therefore, the court erred when it stated that “the police officer who initiated

the blood draw request on December 26, 2015 did not exploit the prior

illegality[.]” Trial Court Opinion, 8/16/17, at 21. Since there was no prior

illegality to exploit, this type of taint analysis is inappropriate.3

       Simultaneously, the fact that Officer Grandizio did not inform Appellant

of the consequences of refusal on the day in question is highly relevant, as

there is a temporal element involved. In Commonwealth v. Haines, 168

A.3d 231 (Pa.Super. 2017), we remanded for an evidentiary hearing where

the record was unclear as to whether the appellant consented before or after

being told the penalties for refusing:

____________________________________________


3 We note that Appellant’s suppression motion uses the word “taint,” but in
the context of arguing that her consent was coerced because she knew what
would happen if she refused the request. Appellant did not refer to taint in
the legal sense discussed by the trial court.

                                          - 10 -
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


       We agree that if Haines validly consented before being informed
       that he faced enhanced criminal penalties for failure to do so, then
       his consent would not be tainted by the warning and the blood
       test results would be admissible. See Birchfield, 136 S.Ct. at
       2185–86. If, however, he did not consent until after Sergeant
       Dehoff informed him that he would face enhanced criminal
       penalties if he refused to consent, then the trial court did not
       necessarily err in granting his motion to suppress the test results.
       Id.

Id. at 236 (emphasis in original).

       The trial court herein effectively applied Haines by finding that

Appellant validly consented before any mention of the enhanced penalties that

would apply if she refused. However, the critical distinction is that, in this

case, Appellant already knew the consequences of refusal.4 The trial court

largely dispensed with the need to address that wrinkle by applying a purge

analysis, which we have rejected supra. Thus, we are required to answer a

question not addressed by Haines: Does Birchfield apply if the arrestee has

explicit knowledge5 of the consequences for refusal and consented as a result

of that knowledge, despite the fact the officer did not directly threaten those

same penalties?


____________________________________________


4 There is no indication in Haines that the driver was previously read an
implied consent form or, like Appellant herein, had been charged with more
severe offenses due to a prior refusal.

5 It is more accurate to state that Appellant was aware of the probable
consequences, not the definitive. It is possible, for example, that the officer
would have requested a breath test instead of a blood test.

                                          - 11 -
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


      We find that Appellant’s consent was voluntary within the meaning of

the Fourth Amendment.       Birchfield did not foreclose a finding that a

consensual blood draw was constitutionally valid even when the warnings were

issued. The case referred to a partially inaccurate warning form which advised

the driver that his license could be suspended if he refused. The High Court

remanded for a hearing to determine if his consent was voluntarily given.

While that remand did not involve a criminal sanction, that instruction

implicitly rejects the notion that even actually invalid warnings are

automatically coercive.

      Additionally, we have addressed subjective beliefs as it bears upon

consent in related circumstances involving post-Birchfield DUIs.            In

Commonwealth v. Miller, --- A.3d ----, 2018 WL 2057002 (Pa.Super. 2018),

we examined a claim wherein the defendant asserted that he had been

previously been arrested for DUI, and therefore believed that he would face

increased criminal penalties for refusal.    The officer informed Miller of the

correct post-Birchfield consequences. The trial court granted suppression,

and we reversed, determining that the consent was voluntarily given:

      Second, Appellee avers that he subjectively believed he would
      face increased criminal penalties if he refused a blood draw.
      Appellee avers that the last time he was arrested for DUI, prior to
      the Supreme Court of the United States' decision in Birchfield,
      he was read the DL–26 form. [T]he DL–26 form included a
      warning that failure to submit to a blood draw would subject a
      defendant to enhanced criminal penalties. Appellee, therefore,


                                    - 12 -
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


      argues that the trial court properly considered his subjective belief
      that enhanced criminal consequences attached to the refusal to
      consent to a blood draw.

      Appellee's argument fails in light of our Supreme Court's decision
      in Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884
      (2000). In Strickler, our Supreme Court explained that, while a
      defendant's subjective belief regarding his or her ability to refuse
      to consent to a search may be considered as part of the totality of
      the circumstances, it is the police officer's express warnings which
      are most important when evaluating subjective belief. See id. at
      901. In other words, incorrect subjective beliefs that are
      contradicted by a police officer's actual statements to a defendant
      diminishes the weight a trial court may place on the defendant's
      errant subjective belief.

Id. at *2.

      This case differs from Miller in two material respects. First, the blood

draw in this case occurred pre-Birchfield.      Second, it involves Appellant’s

subjective knowledge of the consequences, owing to Appellant’s own history,

which involved prosecution for refusal.       However, we believe those are

distinctions without a difference. In Miller, we stated that the police officer’s

conduct is the primary focus, and we find that the same is true here. Officer

Grandizio asked Appellant to provide a blood sample, and she agreed. He did

not threaten or coerce her by informing her of enhanced criminal penalties in

the event she declined consent. While it is true that the machinery of the

State stood poised to impose additional penalties, the officer did not threaten

or coerce Appellant. See Commonwealth v. Ennels, 167 A.3d 716, 724

(Pa.Super.    2017)   (“Birchfield makes      plain   that   the   police     may


                                     - 13 -
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


not threaten enhanced punishment for refusing a blood test in order to obtain

consent; whether that enhanced punishment is (or can be) ultimately imposed

is irrelevant to the question whether the consent was valid.”) (second

emphasis in original, citation omitted). We find that the primary focus must

be on what the officer said and did.

      Relatedly, we note that Appellant’s outcome would effectively reward

persons such as herself, who have previously run afoul of the law. See Miller,

supra at *3 (“Repeat DUI offenders, owing to past legal transgressions, are

not entitled to a benefit that would be unavailable to first-time DUI

offenders.”).     A first-time offender who consents before being told the

consequences has no valid Birchfield claim. Haines. Prior violations of the

law do not, of course, diminish Appellant’s Fourth Amendment protections,

but   injecting   subjective   considerations into   the   voluntariness   inquiry

necessarily provides little guidance for a police officer requesting consent.

Officer Grandizio had no duty to challenge Appellant’s consent, yet, according

to Appellant’s argument, he was required to tell her the consequences of

refusal, despite her consent, to ensure that some subjective belief on her part

did not motivate her consent.      In this respect, the United States Supreme

Court has rejected the notion that the prosecution must establish that the

subject of a search knew he had a right to refuse.         The Court noted the

problems with this approach:


                                       - 14 -
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


       [It] would, in practice, create serious doubt whether consent
       searches could continue to be conducted. There might be rare
       cases where it could be proved from the record that a person in
       fact affirmatively knew of his right to refuse—such as a case where
       he announced to the police that if he didn't sign the consent form,
       ‘you (police) are going to get a search warrant; or a case where
       by prior experience and training a person had clearly and
       convincingly demonstrated such knowledge. But more commonly
       where there was no evidence of any coercion, explicit or implicit,
       the prosecution would nevertheless be unable to demonstrate that
       the subject of the search in fact had known of his right to refuse
       consent.

Schneckloth v. Bustamonte, 412 U.S. 218, 229–30 (1973) (footnote

omitted). The same point applies herein: the prosecution would never be

able to demonstrate that Appellant validly consented to a blood draw. It may

well be that her prior knowledge is why she consented, but there are other

possibilities. Perhaps she sought to curry favor with the officer, or perhaps

she felt remorse at having committed so many DUIs in such a short timespan

and was willing to accept the consequences. The officer did not know why she

agreed, and the Fourth Amendment did not require him to elicit an

explanation. We find that her prior knowledge is not dispositive, and is merely

one factor to consider.6 We agree with the trial court’s analysis with respect

____________________________________________


6Unlike the reasonable person test for purposes of the seizure inquiry, which
presupposes an innocent person and is an objective inquiry, the consent test
asks whether Appellant herself felt compelled to consent. Thus, the test
permits subjective considerations, as noted supra. See Commonwealth v.
Strickler, 757 A.2d 884, 901 (Pa. 2000) (maturity, sophistication, mental or



                                          - 15 -
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


to the balance of the totality of the circumstances, and adopt its analysis as

our own, which is summarized. See Trial Court Opinion, 8/16/17, at 29-36.

We thus agree with the balance of the trial court’s analysis, set forth supra,

regarding the totality of the circumstances inquiry. We therefore agree that

her consent was voluntary.

       We now address Appellant’s challenge to the discretionary aspects of

her sentence. Such appeals are not of right, and an appellant must invoke

our jurisdiction by satisfying a four-part test. We examine:


____________________________________________


emotional state, age, intelligence, among other considerations). Those
subjective factors, however, are at least objective in nature in the sense their
existence can be measured and considered.             We quote the following
observation from the United States Court of Appeals for the Tenth Circuit:

       But even assuming some subjective characteristics are relevant to
       the validity of Mr. Zapata's consent, we reject the notion that his
       attitude toward police, from whatever source, can constitute such
       a relevant subjective characteristic. While such attributes as the
       age, gender, education, and intelligence of the accused have been
       recognized as relevant, see Schneckloth v. Bustamonte, 412
       U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973), an
       intangible characteristic such as attitude toward authority is
       inherently unverifiable and unquantifiable.

United States v. Zapata, 997 F.2d 751, 759 (10th Cir. 1993) (some citations
omitted).

That Appellant had prior experience with the enhanced penalties form is
objectively provable, but the effect it had on her thinking is inherently
unverifiable. We therefore find that her knowledge is but one factor in the
totality of the circumstances analysis.


                                          - 16 -
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


      (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. Radecki, 180 A.3d 441, 467 (Pa.Super. 2018) (citation

omitted, alterations in original).

      Appellant filed a timely notice of appeal, preserved her claim in a motion

to reconsider, and her brief included a separate statement. We find, however,

that Appellant has failed to present a substantial question. Her statement

reads:

      The sentence fashioned by the court does not address Appellant's
      rehabilitative needs as required by 42 Pa.C.S.A. §9721(b).
      Although the court certainly considered the protection of the
      public, the court did not address Appellant's rehabilitative needs
      as required by 42 Pa.C.S.A. §9721(b). Other than incarceration,
      the court's sentence does not confront the alcoholism at the core
      of the criminal offenses. The court's sentence does not meet
      Appellant's treatment and rehabilitative needs.

Appellant’s brief at 16.

      This cursory statement does not meet the applicable standard.          We

determine whether a substantial question exists on a case-by-basis.          The

appellant must advance “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



                                     - 17 -
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


process.”   Radecki, supra at 468 (citation omitted).         The invocation of

talismanic phrases cannot satisfy the substantial question requirement.

Appellant herein claims that the trial court failed to consider her rehabilitative

needs, but such a claim does not present a substantial question.             See

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013). Additionally,

Appellant alleges that a litany of mitigating factors warranted a lesser

sentence. However, “This Court has held on numerous occasions that a claim

of inadequate consideration of mitigating factors does not raise a substantial

question for our review.” Commonwealth v. Matroni, 923 A.2d 444, 455

(Pa.Super. 2007) (quoting Commonwealth v. Bullock, 868 A.2d 516, 529

(Pa.Super. 2005)). We therefore find that Appellant has failed to present a

substantial question.

      Even if we were to find a substantial question, it is clear that Appellant

is not entitled to relief. She asserts that the trial court did not consider her

rehabilitation needs and did not “confront the alcoholism at the core of the

criminal offenses.”     Appellant’s brief at 37.     She notes the traumatic

circumstances of her childhood, sexual abuse inflicted upon her at age

fourteen, and physical ailments requiring multiple surgeries. These facts were

presented to the trial court, which clearly weighed them in fashioning its

sentence:

      I have to consider her rehabilitative needs. I have to consider the


                                      - 18 -
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


     guidelines. I obviously have to consider the mandatory provisions
     that all these cases have. And then I have to consider the factors
     in the sentencing code and balance the background, character and
     circumstances of this defendant with the circumstances of the
     crime, whether there is a need to incarcerate her to prevent future
     offenses by her, as well as the possibility of her rehabilitation. I
     considered and read the PSI. I read everything that defense
     counsel provided me.

     It's a very unusual case to have this many DUIs coming from one
     person at one time. It's a rarity in my time on the bench. In doing
     the balancing, I'm going to stay within the standard range of the
     guidelines. I imagine I could easily find aggravation due to the
     circumstances here. I also I imagine, if I did the balancing,
     considering her difficult life, as I did read, and how that has
     impacted her, it’s obvious it had a negative impact on her. But
     what’s been exhibited here is she’s dangerous to the community
     and herself, repetitive drinking and driving pattern established
     here. Whether she’s successful in rehabilitation, time will tell. She
     obviously made efforts as evidenced by what was provided to the
     Court by defense counsel. She’s severely in need of treatment.
     She committed some of these offenses while on bail, while
     awaiting sentencing. I think it indicates the degree of her
     problems. Her life at the time here seemed to be out of control.
     She was spinning wildly. The pattern here is dangerous to the
     community.

N.T., Sentencing, 2/15/17, at 34-36.

     The trial court did not doubt that Appellant’s history was partially to

blame for her repeated drinking. However, there was a clear need to balance

her rehabilitative needs against the safety of the community.           As the

Commonwealth noted, Appellant had been convicted of a total of seven DUI

offenses at the time of sentencing. Appellant repeatedly endangered her life

and the lives of others by continuing to drink and drive, and she committed



                                    - 19 -
J-S10004-18
J-S10005-18
J-S10006-18
J-S10007-18


two DUIs while awaiting sentencing on other DUIs. It is clear that the trial

court considered Appellant’s arguments as warranting a lesser sentence, and

we have no license to reweigh its balancing.    We would find no abuse of

discretion.

      Judgment of sentence affirmed.

      Judge Nichols joins the memorandum.

      Judge Olson concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/18




                                   - 20 -
Circulated 06/29/2018 03:22 PM
