J. S36035/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
CHARLIE MACK,                             :         No. 2917 EDA 2016
                                          :
                         Appellant        :


            Appeal from the Judgment of Sentence, August 1, 2016,
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No. CP-39-CR-0005294-2015


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JUNE 15, 2017

        Charlie Mack appeals from the judgment of sentence of August 1,

2016, following his conviction of driving under the influence (“DUI”),

homicide by vehicle while DUI, and aggravated assault by vehicle while

DUI.1 We affirm.

        The tragic facts of this case were recounted at appellant’s guilty plea

hearing as follows:

                    Your Honor, this incident took place on
              August 16th, 2015 at approximately 8:33 in the
              evening at the intersection of Basin and Auburn
              Streets.

                    Mrs. Velez, Ruth Ann Velez, and her daughter
              [Alayna] were traveling southbound on Basin Street
              when they were about to make a turn onto Auburn.
              The light was green for them.

1
    75 Pa.C.S.A. §§ 3802(b), 3735(a), & 3735.1, respectively.
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                 Mr. Mack was headed southbound, I’m sorry,
          northbound on [Basin] Street. He also had a green
          light.

                There was a vehicle, an SUV, stopped facing
          northbound on Basin Street, about to make a turn to
          go westbound on Auburn. There was also a witness
          who was stopped on Auburn Street facing west.

                That witness, Ms. Wieder, described seeing the
          following. She saw Mr. Mack’s Pontiac coming north
          on Basin. Her comment to the officers when she
          spoke with them was, “Mr. Mack’s vehicle was going
          too fast.”

                It was in the left-hand lane. It didn’t slow
          down. It swerved around the stopped SUV which
          was in the left-hand lane of Basin Street. Moments
          before that the Mitsubishi had already started to
          make its left-hand turn.

                 The Pontiac struck the Mitsubishi on the
          passenger side, right by the A pillar/B pillar location,
          right on the passenger side door.

                 The impact propelled the Mitsubishi into the
          traffic light pole which was to the northeast corner of
          the intersection.

                The Pontiac then proceeded to go further down
          the road where it came to a final rest.

                 Emergency personnel arrived on the scene.
          Ms. Velez, [Alayna] Velez, subsequently died of her
          injuries she sustained as a result of the crash.

                 Ruth Ann Velez was rushed to the hospital.
          Initially it was thought that this would be a two
          fatal [sic] motor vehicle crash.      Mrs. Velez had
          suffered a torn aorta as a result of that crash in
          addition to breaking her pelvis in three locations and
          breaking several ribs.



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                 The doctors were able to save her life. She
           survives today but she is still treating and can’t do
           her job.

                 Blood was drawn from Mr. Mack after two
           emergency personnel noted that he was under the
           influence of alcohol and reported the same to
           Sergeant Hill, who was the on-scene supervisor.

                 When Mr. Mack’s blood was drawn and
           subsequently tested[,] it was determined that his
           blood alcohol level was a .13.

Notes of testimony, 6/14/16 at 6-8.

                 Additionally, Judge, Officer [Dennis] Clemens
           of the Allentown Police Department reconstructed the
           crash scene and noted roadway evidence at the
           scene.

                 There were no signs of braking prior to impact.
           Mr. Mack’s vehicle did not brake. His speed was
           determined based on the severity of the impact and
           the final resting locations for both vehicles that he
           was traveling 61.64 miles per hour at the time of the
           crash.

                 The posted speed limit for that location, Your
           Honor, is 35 miles an hour and is approximately -- it
           was determined through the crash investigation that
           Mrs. Velez, when she made the turn -- started to
           make the turn at that intersection -- Mr. Mack was
           394 feet away based on his speed.

                  If he had been traveling at the speed limit,
           there would have been an impact. However, the
           impact would have been at approximately 29 miles
           an hour, which could have been clearly survivable by
           all the parties involved.

                 Given the fact of his speed, and the amount of
           alcohol, and the fact that there was no braking, it
           was clearly his fault. And his actions resulted in the



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               death of [Alayna] Velez[2] and the injuries to
               Ruth Ann Velez.

Id. at 8-9.

        On June 14, 2016, appellant entered an open guilty plea to the above

charges.      On August 1, 2016, appellant was sentenced to 5 to 10 years’

imprisonment on each felony charge of homicide by vehicle while DUI and

aggravated assault while DUI, run consecutively for an aggregate sentence

of 10 to 20 years’ imprisonment; the DUI charge merged for sentencing

purposes. Both sentences were within the standard range of the guidelines.

Post-sentence motions were denied, and this timely appeal followed.

Appellant complied with Pa.R.A.P. 1925(b), and the trial court filed a

Rule 1925(a) opinion, relying on its Opinion and Order of August 12, 2016,

denying appellant’s post-sentence motions.

        Appellant has raised the following issue for this court’s review:

“Whether or not the trial court abused its discretion by imposing an

excessive aggregate sentence through the entering of two consecutive

sentences upon [appellant] which, based upon the age of [appellant], was

essentially a life sentence?” (Appellant’s brief at 7.)

               As [a]ppellant raises a challenge to the discretionary
               aspects of his sentence, we note the applicable
               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

2
    Alayna was 16 years old at the time of the incident. (Id. at 9.)


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                 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 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. McLaine, 150 A.3d 70, 75-76 (Pa.Super. 2016),

quoting Commonwealth v. Antidormi, 84 A.3d 736, 760-761 (Pa.Super.

2014) (internal citations and quotation marks omitted).

           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,


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                  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).

Id. at 76, quoting Commonwealth v. Samuel, 102 A.3d 1001, 1006-1007

(Pa.Super. 2014) (some citations omitted).

      The record reflects that appellant timely filed a notice of appeal and

that he preserved this issue by including it in his post-sentence motion for

reconsideration and modification of sentence. Appellant has also included in

his brief a statement pursuant to Rule 2119(f).   (Appellant’s brief at 10.)

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. Edwards, 71 A.3d 323,
            330 (Pa.Super. 2013) (citations 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 provision of the Sentencing Code; or
            (2) contrary to the fundamental norms which
            underlie the sentencing process.”     Id. (citations
            omitted). “Additionally, 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).

Commonwealth v. Diehl, 140 A.3d 34, 44-45 (Pa.Super. 2016), appeal

denied, 2016 WL 6246754 (Pa. 2016).




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      “In imposing a sentence, the trial judge may determine whether, given

the facts of a particular case, a sentence should run consecutive to or

concurrent with another sentence being imposed.”         Commonwealth v.

Perry, 883 A.2d 599, 603 (Pa.Super. 2005) (citations omitted).

            Long standing precedent of this Court recognizes
            that 42 Pa.C.S.A. section 9721 affords the
            sentencing court discretion to impose its sentence
            concurrently or consecutively to other sentences
            being imposed at the same time or to sentences
            already imposed. Commonwealth v. Graham, 541
            Pa. 173, 184, 661 A.2d 1367, 1373 (1995). . . .
            Any challenge to the exercise of this discretion
            ordinarily does not raise a substantial question.
            Commonwealth v. Johnson, 873 A.2d 704,
            709 n.2       (Pa.Super.    2005);     see     also
            Commonwealth v. Hoag, 445 Pa.Super. 455, 665
            A.2d 1212, 1214 (Pa.Super. 1995) (explaining that a
            defendant is not entitled to a “volume discount” for
            his or her crimes).

Commonwealth v. Mastromarino, 2 A.3d 581, 586-587 (Pa.Super. 2010),

appeal denied, 14 A.3d 825 (Pa. 2011), quoting Commonwealth v.

Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa.Super. 2010).          “[T]he key to

resolving the preliminary substantial question inquiry is whether the decision

to sentence consecutively raises the aggregate sentence to, what appears

upon its face to be, an excessive level in light of the criminal conduct at

issue in the case.” Id. at 587, quoting Gonzalez-Dejusus, supra.

      Here, appellant does not raise a substantial question for our review

regarding the sentencing court’s decision to run his sentences consecutively.

As stated above, both sentences fell within the standard range of the



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sentencing guidelines.3 This was an open plea and appellant acknowledged

that the trial court could impose consecutive sentences.           (Notes of

testimony, 6/14/16 at 4.)     The aggregate sentence of 10 to 20 years’

imprisonment is neither grossly disparate to appellant’s conduct nor does it

“viscerally appear as patently ‘unreasonable.’”   Mastromarino, 2 A.3d at

589, quoting Gonzalez-Dejusus, supra. Rather, appellant appears to be

seeking a “volume discount” for his crimes on the basis that they occurred at

the same time and place and involved the same victims. As we have noted,

a defendant is not entitled to a “volume discount” for multiple crimes by

having all sentences run concurrently. Hoag, 665 A.2d at 1214.

      The trial court was also in possession of a pre-sentence investigation

report.   (Opinion and Order, 8/12/16 at 3 n.1.)      “Where the sentencing

judge had the benefit of a pre-sentence report, it will be presumed that

[she] was aware of relevant information regarding appellant’s character and

weighed those considerations along with the mitigating statutory factors.”

Commonwealth v. Fullin, 892 A.2d 843, 849-850 (Pa.Super. 2006),

quoting Commonwealth v. L.N., 787 A.2d 1064 (Pa.Super. 2001).            See

also Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (“It would be


3
  For count 1, homicide by vehicle while DUI, the guidelines provided for a
sentence of 60 to 72 months, plus or minus 12; for count 4, aggravated
assault while DUI, the guideline sentencing range was 48 to 60 months, plus
or minus 12. (Notes of testimony, 6/14/16 at 2-3.) Appellant had a
substantial criminal record including 15 arrests, 12 convictions, and 4 parole
violations. (Notes of testimony, 8/1/16 at 43; Opinion and Order, 8/12/16
at 3 n.1.)


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foolish, indeed, to take the position that if a court is in possession of the

facts, it will fail to apply them to the case at hand”).

      Appellant’s reliance on Commonwealth v. Dodge, 859 A.2d 771

(Pa.Super. 2004), vacated and remanded on other grounds, 935 A.2d

1290 (Pa. 2007), is misplaced. (Appellant’s brief at 13-14.) In that case,

we found that the appellant raised a substantial question where there were

numerous standard range sentences ordered to be served consecutively.4

The appellant in Dodge received a sentence of 58½ to 124 years’

imprisonment after he was convicted of numerous, largely property offenses,

e.g., 37 counts of receiving stolen property, criminal trespass, drug

possession, and unauthorized use of a motor vehicle.        The crimes in that

case did not involve violence against any person and were primarily property

crimes involving property of little monetary value.         Id. at 781.      The

appellant’s sentence on the 37 counts of receiving stolen property alone was

52 to 111 years, representing 88% of the total sentence. Id. at 779. Again,

this despite the fact that the vast majority of the stolen items had little or no

value, e.g., costume jewelry with a value of less than $20. Id. at 779 n.10.




4
  See Commonwealth v. Dodge, 957 A.2d 1198, 1199 n.2 (Pa.Super.
2008), appeal denied, 980 A.2d 605 (Pa. 2009) (“In Dodge, 859 A.2d at
775-776, we concluded that [a]ppellant properly preserved his challenge to
the discretionary aspects of his sentence and raised a substantial question.
Id. at 775-776. Nothing in the Supreme Court’s [subsequent opinion in
Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007),] undermines those
conclusions, and we will not revisit them here.”).


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         Under these circumstances, the court in Dodge determined that the

appellant’s claim of excessiveness raised a substantial question; however,

Dodge emphasized that it was a “most unusual case” and that “a mere

allegation that consecutive sentences are excessive or ‘clearly unreasonable’

will not be sufficient to raise a substantial question warranting appellate

review.”     Id. at 782.   “Rather, appellants must demonstrate a substantial

question that the sentencing court has violated the letter and spirit of the

Sentencing Code, i.e., that the sentence is ‘so manifestly excessive as to

constitute too severe a punishment.’”          Id., quoting Commonwealth v.

Mouzon, 812 A.2d 617, 624 (Pa. 2002).           Thus, Dodge was limited to its

facts.

         Here, appellant’s aggregate sentence of 10 to 20 years is not

excessive on its face in light of appellant’s reprehensible criminal conduct

and its devastating impact on the victims and their family. Furthermore, to

the extent appellant argues that the sentence is excessive in light of his age

and physical condition, and it is essentially a life sentence, he does not raise

a substantial question for review. (Appellant’s brief at 10, 12.) Appellant

was over 60 years of age at the time of sentencing. (Id.) Just as appellant

is not entitled to a “volume discount” for his crimes, he is not entitled to a

“seasonal discount” either, because he committed his crimes in the autumn

of his life. This claim fails.

         Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2017




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