J-S43017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

PACURIE HUYNH,

                            Appellant               No. 2872 EDA 2013


        Appeal from the Judgment of Sentence entered August 2, 2013,
              in the Court of Common Pleas of Delaware County,
            Criminal Division, at No(s): CP-23-CR-0001195-2013


BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.:                           FILED AUGUST 20, 2014



entered after he pleaded guilty to one count of accidents involving death or

personal injury resulting in death.1

        The trial court summarized the pertinent facts and procedural history

as follows:

             On July 4, 2012, Thomas Quercetti, victim herein, was
          struck by a vehicle while walking in the 100 block of State
          Road in Springfield Township, Delaware County.          The
          driver of the vehicle callously fled the scene, leaving the
          victim lying alone on the side of the road with massive
          injuries. On February 20, 2013, the victim succumbed to
          his injuries.


____________________________________________


1
    75 Pa.C.S.A § 3742.


*Former Justice specially assigned to the Superior Court.
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            After countless months of investigation by the
         Springfield Police Department and assistance from the FBI,
         the driver of the vehicle was identified as Appellant,
         Pacurie Huynh. Appellant was arrested and charged with
         accidents involving death or personal injury and failure to
         stop and render aid.

            On May 8, 2013, Appellant pleaded guilty to accidents
         involving death or bodily injury resulting in death, a felony
         of the third degree. Appellant was sentenced on August 2,
         2013, to three and one half years to seven years in a state
         correctional institute.

                                      ***

             On August 12, 2013, Appellant filed a post sentence
         motion to (1) withdraw his guilty plea; and (2) for [the
         trial court] to reconsider his sentence. After a hearing on

         motion[.]

            On October 15, 2013, Appellant filed a timely notice of
         appeal. The following day, [the trial court] issued an
         Order requesting Appellant to file a 1925(b) statement.
         Appellant filed his 1925(b) statement on October 23, 2013
         raising two issues: (1) The sentence imposed was in
         excess of the guidelines and therefore an abuse of
         discretion; and (2) the sentence was manifestly
         unreasonable under the circumstances.

Trial Court Opinion, 11/13/13, at 1-3 (footnotes omitted).

      In accordance with Pa.R.A.P. 1925(a), the trial court filed an opinion

on November 13

the following issue for our review:

            Is [Appellant] entitled to a new sentencing hearing where
            the sentencing court clearly abused its discretion in
            sentencing [Appellant] to the statutory maximum sentence
            of 3½ to 7 years incarceration, after [Appellant] waived his
            preliminary hearing, pleaded guilty, had no record, and a
            sentencing guideline range of 12-24 months incarceration?


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      A challenge to the discretionary aspects of a sentence is not

appealable as of right.    Rather, Appellant must petition for allowance of

appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856

A.2d 1254, 1257 (Pa. Super. 2004).

            Before we reach the merits of this [issue], we must engage
      in a four part analysis to determine: (1) whether the appeal is
      timely; (2) whether Appellant preserved his issue; (3) whether
      Appellant's brief includes a concise statement of the reasons
      relied upon for allowance of appeal with respect to the
      discretionary aspects of sentence; and (4) whether the concise
      statement raises a substantial question that the sentence is
      appropriate under the sentencing code. The third and fourth of
      these requirements arise because Appellant's attack on his
      sentence is not an appeal as of right. Rather, he must petition
      this Court, in his concise statement of reasons, to grant
      consideration of his appeal on the grounds that there is a
      substantial question. Finally, if the appeal satisfies each of these
      four requirements, we will then proceed to decide the
      substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted).

      Here, Appellant preserved his claim by filing a post-sentence motion

and timely notice of appeal. Appellant has additionally included in his brief a

concise statement pursuant to Pa.R.A.P. 2119(f). See                          -



excess of the guidelines, without placing adequate reasons on the record for

its decision to do so, constitutes a substantial question for our review. See

Commonwealth v. Antidormi

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Court has held that claims that the sentencing court imposed a sentence

outside the standard guidelines without stating adequate reasons on the




       Appellant argues that the trial court abused its sentencing discretion

when it imposed a sentence in excess of the guidelines.2 Appellant contends

that in its imposition of sentence, the trial court based its sentencing

decision only on the seriousness of the crime, and disregarded the fact that

Appellant conveyed sympathy and remorse, pleaded guilty, and had no prior

                                               -15.   Accordingly, Appellant argues

that he is entitled to a new sentencing hearing.

       Our standard of review in sentencing matters 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 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.

Commonwealth v. Hoch, 936 A.2d 515, 517-18 (Pa. Super. 2007)

(citation omitted).

____________________________________________


2
  The guidelines recommended a sentence of twelve months in the standard
range and 18 months in the aggravated range. The statutory maximum was
3½ to 7 years.



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     Where an excessive sentence claim is based on deviation from
     the sentencing guidelines, we look for an indication that the
     sentencing court understood the suggested sentencing range.
     When there is such an indication, the sentencing court may
     deviate from the sentencing guidelines to fashion a sentence
     which takes into account the protection of the public, the
     rehabilitative needs of the defendant, and the gravity of the
     particular offense as it relates to the impact on the life of the
     victim and the community, so long as the court also states of
     record the factual basis and specific reasons which compelled
     him to deviate from the guideline range. Thus, simply stated,
     the sentencing guidelines are merely advisory and the
     sentencing court may sentence a defendant outside the
     guidelines as long as the sentencing court places its reasons for
     doing so on the record.

Commonwealth v. Hill, 66 A.3d 365, 370 (Pa. Super. 2013) quoting

Commonwealth v. Tirado, 870 A.2d 362, 366 (Pa. Super. 2005); 42

Pa.C.S.A. § 9721(b).

     The legislature has provided that an appellate court shall vacate

     sentencing court sentenced outside the sentencing guidelines
     and

     court shall affirm the sentence imposed by the sentencing

     weighed when we review a sentence include:

      (1)   The nature and circumstances of the offense and the history and
            characteristics of the defendant.

     (2)    The opportunity of the sentencing court to observe           the
            defendant, including any presentence investigation.

     (3)    The findings upon which the sentence was based.

     (4)    The guidelines promulgated by the commission.

     42 Pa.C.S. § 9781(d).

Commonwealth v. P.L.S., 894 A.2d 120, 130 (Pa. Super. 2006).


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guidelines, appellate courts look to the reasons set forth on the record for

the sentencing court's deviation; if the sentencing court proffers reasons

indicating that its decision to depart from the guidelines is not unreasonable,

                                Commonwealth v. Smith, 863 A.2d 1172,

1177-1178 (Pa .Super. 2004) citing Commonwealth v. Mouzon, 828 A.2d

1126, 1129 1130 (Pa. Super. 2003). Here, the trial court explained:

                  At the sentencing hearing [the trial court] made a
            thorough record of the reasons
            [The trial court] started by recognizing that sentencing
            should be consistent with the general        principles of:
            protection of the public, gravity of the offense on the
            victim, impact on the community, the rehabilitative needs
            of the defendant, and consideration of the sentencing
            guidelines. Next, [the trial court] stated everything that
            was taken into consideration before imposing a sentence;

            report, the psychiatric report, the substance abuse
            evaluation, the sentencing memorandum submitted by the
            Commonwealth, the sentencing memorandum submitted
            by counsel for [Appellant], including the numerous letters
            of support attached thereto, the sentencing guidelines, all
            statements made prior to sentencing, and that includes the
            victim impact statements, and a statement by the family of


                  Pursuant to 42 Pa.C.S. Section 9721(b), in every
            case where a court deviates from the guideline range, they
            are to provide the reasons for the deviation. [The trial

            deviated from the standard range and the aggravated
            range as suggested by the sentencing guidelines for the

            testimo
            deviation, which include: [A]ppellant was acutely aware
            that he struck something and kept going; that leaving the


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            closed for several hours causing major inconvenience on
            the community; that despite being front page news for
            several days, [A]ppellant never once stepped forward; and
            furthermore, that [A]ppellant actually took steps to cover
            up his actions by attempting to get his vehicle fixed with
            cash, not offering any identification, and telling the
            mechanic the damage was from hitting a wall. If Appellant
            was truly remorseful, he would not have attempted to
            evade authorities for upwards of two hundred days, forcing
            them to spend countless hours and resources on tracking
            down the driver.

                  In addition to his lack of remorse, the impact on the


            miracle but none came. Then, for nearly eight months the
            family anguished over who the heartless coward was that
            took the life of Thomas Quercetti and left him lying on the
            road as if he were merely animal road kill, just another
            deer, cruel and inhumane for a deer, but far worse for a
            young man of twe
            testified that their family has been haunted by this
            tragedy.

                  [The trial court] addressed all of the requisite
            general principles of sentencing and carefully outlined its
            analysis of each factor. Furthermore, [the trial court]
            recognized the standard guidelines and addressed its
            reasons for deviation. Simply because [the trial court],
            well within its discretion, chose to sentence Appellant to
            the statutory maximum does not make the sentence an
            abuse of discretion.

Trial Court Opinion, 11/13/13, at 4-5 (citations to notes of testimony

omitted).

      Upon review, we conclude that the trial court did not ignore or

misapply the law or exercise its judgment for reasons of partiality, prejudice,

bias or ill will, and we do not find the trial court's imposition of a sentence



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outside of the guidelines to be unreasonable. At the sentencing hearing, the

trial court emphasized that the victim was left on the side of the road lying

in a pool of blood, and that the accident caused significant damage to



something, yet declined to stop his vehicle.        Moreover, Appellant made

efforts to repair his damaged vehicle, and in doing so made a conscious

effort to conceal his identity by declining to provide his name to the auto

repair shop, paying in cash, and informing the repair shop that the accident

occurred when he hit a wall.       N.T., 8/2/13, at 24-26.      With regard to

                                                              hat Appellant did

not turn himself in immediately or even shortly after the accident, and that

236 days passed before he was located by police as a suspect, leading to his

subsequent admission of guilt.     Id

the trial court focused solely on the seriousness of the crime in fashioning its

sentence, the record reflects that at the sentencing hearing, the trial court

expressly indicated it considered the pre-sentence report, including a

psychiatric report, as well as letters in support of Appellant, the protection of

the public, the gravity of the offense as it related to the impact on the



considerations in rendering its sentence. Id. at 21-22.

      Appellant asserts that the record is devoid of any indication that he is

a menace to society or that he is not amendable to rehabilitation.




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                                              oad was closed by police after



decision to deviate from the guidelines because every crime causes

upheaval, and traffic congestion is not an aggravating factor. However, we

reiterate that the trial court, in addition to mentioning that the accident

caused a traffic disturbance and that the crime had a significant impact on



                                        ene of the crime, his failure to turn

himself in at the earliest opportunity, and his efforts to conceal his crime.

Although Appellant objects to the emphasis placed by the trial court on

various sentencing factors and asks for a new sentencing hearing on this

basis, we may not substitute our judgment for that of the sentencing court.

Commonwealth v. Marts, 889 A.2d 608, 616 (Pa. Super. 2005). For the

foregoing reasons, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

     Justice Fitzgerald files a Dissenting Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




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