J-S79012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 STEVEN VAN SMITH S. RICH                 :
                                          :
                    Appellant             :   No. 214 MDA 2018

        Appeal from the Judgment of Sentence December 19, 2017
 In the Court of Common Pleas of Cumberland County Criminal Division at
                     No(s): CP-21-CR-0003120-2015


BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 06, 2019

      Appellant, Steven Van Smith S. Rich, appeals from the judgment of

sentence imposed on December 19, 2017, and amended on December 27,

2017, in the Cumberland County Court of Common Pleas. We affirm.

      The trial court summarized the relevant facts and procedural history of

this matter as follows:

            At approximately midnight on May 23, 2015, [Appellant]
      caused an accident involving personal injury when he failed to stop
      at a red light and struck the rear of [Ms. Mary Hudson’s] vehicle
      while it was proceeding through an intersection, which caused
      [Ms. Hudson’s] vehicle to become inoperable on the side of the
      road. [Appellant] did not stop and did not attempt to render aid
      or exchange information with [Ms. Hudson]. A bystander[, Mr.
      Adam Webb,] who had witnessed the accident[,] entered the
      roadway on foot to check on the welfare of [Ms. Hudson] … , and
      was fatally struck by a passing tractor-trailer. Eyewitnesses to the
      accidents informed police … where [Appellant’s] vehicle was
      located a short distance down the road from the initial collision.
      Of note, [Appellant’s] car stopped down the road only because it
      was disabled after its collision with [Ms. Hudson’s] vehicle. Upon
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        investigation, it was discovered that [Appellant] was intoxicated.
        [Ms. Hudson] later sought medical treatment for stiffness,
        soreness, bruising, pain, and anxiety caused by the incident.

Trial Court Opinion, 6/1/18, at 3 (footnotes omitted).

              On October 30, 2017, [Appellant] pled nolo contendere to
        the following offenses: at Count 1, DUI - General Impairment,[1]
        first offense, an ungraded misdemeanor; and at Count 4,
        Accidents Involving Death or Personal Injury,[2] a first-degree
        misdemeanor.2 After review of [Appellant’s] pre-sentence
        investigation report (“PSI”) and the impact statement from [Ms.
        Hudson], we sentenced [Appellant] on December 19, 2017 to the
        following: at Count 1, to pay the costs of prosecution and a $300
        fine, and incarceration in Cumberland County Prison for forty-
        eight (48) hours to six (6) months; at Count 4, to pay the costs
        of prosecution and a $100 fine, and incarceration in Cumberland
        County Prison for four (4) to twenty-three (23) months, to run
        consecutively to the sentence at Count 1.3 [Appellant] was further
        directed to obtain a drug and alcohol evaluation, comply with any
        recommended treatment, abstain from consuming alcohol, and to
        pay $20.15 restitution to [Ms. Hudson].4

              2 See In Re: Nolo Contendere Plea, Order of Court,
              October 30, 2017 (Peck, J.). [Appellant’s] nolo
              contendere plea was in full satisfaction of the charges
              for which he was to be prosecuted, which included
              eight additional various misdemeanor and summary
              counts stemming from a DUI accident caused by
              [Appellant]. See Nolo Plea Colloquy, Plea of
              [Appellant], October 30, 2017.

              3See In Re: Sentence, Order of Court, December 19,
              2017 (Peck, J.). We sentenced [Appellant] to the
              minimum sentence in the aggravated range of the
              sentencing guidelines for this offense because of the
              seriousness of the offense and the impact to [Ms.
              Hudson].


____________________________________________


1   75 Pa.C.S. § 3802(a)(1).

2   75 Pa.C.S. § 3742(a).

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            4 Id. The amount of restitution to [Ms. Hudson] was
            this low amount because insurance had covered the
            vast majority of the costs of the accident. See
            Transcript of Proceedings, In Re: Sentence, December
            19, 2017 at p. 5 (Peck, J.).

            On December 21, 2017, [Appellant] filed a Motion to Modify
      and Stay Commencement of Sentence, arguing that our
      sentencing of [Appellant] in the aggravated range guidelines on
      Count 4 was improper, given this Court’s reasons for the same,
      and requesting that the four-month minimum sentence be
      reduced, or alternatively, for the sentences imposed at Count 1
      and Count 4 to run concurrently.5 On December 27, 2017, we
      granted [Appellant’s] Motion in part and amended [Appellant’s]
      sentences to run concurrently to each other.6 [Appellant] filed a
      Notice of Appeal from our December 19, 2017 Order on February
      1, 2018.7

            5 See [Appellant’s] Motion to Modify and Stay
            Commencement of Sentence, December 21, 2017.

            6 See Order of Court, December 27, 2017 (Peck, J.).
            All other requests in [Appellant’s] Motion were denied.

            7   [Appellant’s] Notice of Appeal, February 1, 2018.

Trial Court Opinion, 6/1/18, at 1-2 (footnote 1 omitted). Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises the following issue for this Court’s

consideration:

      Did the court abuse its discretion by sentencing [Appellant] to an
      aggravated range minimum sentence of four months while
      impermissibly considering factors already included within the
      Sentencing Guidelines as the sole reason for aggravating the
      sentence?

Appellant’s Brief at 7 (full capitalization omitted).




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      Appellant’s issue presents a challenge to the discretionary aspects of his

sentence. It is well settled that when an appellant challenges the discretionary

aspects of his sentence there is no automatic appeal; rather, the appeal will

be considered a petition for allowance of appeal. Commonwealth v. W.H.M.,

932 A.2d 155, 162 (Pa. Super. 2007). Furthermore, as this Court noted in

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

            [W]e conduct a four-part analysis to determine: (1)
            whether [the] 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 [the] 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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

      Appellant has satisfied the first three elements of the four-part test from

Moury.    Appellant preserved the sentencing issue by filing a timely post-

sentence motion and notice of appeal, and he provided a statement of reasons

for allowance of appeal from the discretionary aspects of his sentence

pursuant to Pa.R.A.P. 2119(f) in his brief.      Next, we must determine if

Appellant has raised a substantial question for our review. Moury, 992 A.2d

at 170.


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            A substantial question requires a demonstration that “the
      sentence violates either a specific provision of the sentencing
      scheme set forth in the Sentencing Code or a particular
      fundamental norm underlying the sentencing process.”
      Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.
      2005). This Court’s inquiry “must focus on the reasons for which
      the appeal is sought, in contrast to the facts underlying the
      appeal, which are necessary only to decide the appeal on the
      merits.” Id. Whether a substantial question has been raised is
      determined on a case-by-case basis; the fact that a sentence is
      within the statutory limits does not mean a substantial question
      cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255
      (Pa. Super. 2003). However, a bald assertion that a sentence is
      excessive does not by itself raise a substantial question justifying
      this Court’s review of the merits of the underlying claim. Id.

Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012).

      In his Pa.R.A.P. 2119(f) statement, Appellant avers that the trial court

relied on impermissible factors and fashioned Appellant’s sentence on

considerations already included in the Sentencing Guidelines. Appellant’s Brief

at 12-13. We conclude that Appellant has raised a substantial question for

our review. Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa. Super.

2003).

      It should be noted that “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.” Commonwealth v. Sheller,

961 A.2d 187, 190 (Pa. Super. 2008). Additionally, an abuse of discretion is

not merely an error in judgment; rather, an appellant must establish that the

trial court ignored or misapplied the law, exercised its judgment for reasons




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of partiality, prejudice, bias, or ill will, or reached a manifestly unreasonable

decision. Id.

      “It is impermissible for a court to consider factors already included

within the sentencing guidelines as the sole reason for increasing or

decreasing a sentence to the aggravated or mitigated range.” Simpson, 829

A.2d at 339 (citation omitted) (emphasis added). However, trial courts may

consider factors already included in the Sentencing Guidelines if those factors

supplement other extraneous sentencing information. Id. (citation omitted).

      It is well settled that in Pennsylvania, a fundamental norm of the

sentencing process is that a criminal defendant’s sentence be individualized.

Commonwealth v. Luketic, 162 A.3d 1149, 1160 (Pa. Super. 2017) (citing

Commonwealth v. Devers, 546 A.2d 12, 13 (Pa. 1988)).                  “Although

Pennsylvania’s system stands for individualized sentencing, the court is not

required to impose the ‘minimum possible’ confinement.” Moury, 992 A.2d

at 171 (citation omitted). “When imposing a sentence, the sentencing court

must consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the

protection of the public, gravity of offense in relation to impact on victim and

community, and rehabilitative needs of the [Appellant].” Commonwealth v.

Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (citation omitted).

      The trial court addressed this issue as follows:

            Importantly, we considered that there are far-reaching
      consequences to [Appellant]’s decision not to stop and render aid
      to [Ms. Hudson] at the scene of the accident at the time it
      occurred, as he was required by law to do. We also acknowledge

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     that it is within our purview to consider the surrounding
     circumstances of the offense when fashioning a sentence for
     [Appellant]. Here, [Appellant], by not stopping, set off a chain of
     events that resulted in injury to [Ms. Hudson], the death of [Mr.
     Webb], and physical hazards to others using the road. [Ms.
     Hudson] was stranded on the side of a busy highway in an
     inoperable vehicle in the wee hours of the morning, in physical
     danger due to her location. Another driver, coming to the victim’s
     aid, left her own vehicle partially in the lane of traffic in order to
     alert oncoming vehicles to the accident scene, creating an
     additional peril to her own person and property. [Mr. Webb,] [a]
     pedestrian who witnessed the collision, after coming to the aid of
     the victim and then attempting to check on the welfare of
     [Appellant] himself, was struck and killed by traffic on the
     roadway. Police and medical personnel who responded to the
     accident had to track down [Appellant] at his location some
     distance away from the scene, creating additional danger for them
     as well. Multiple cars stopped in or near the road due to the
     accident and debris strewn between the two cars involved in the
     collision created additional hazards for others using the road at
     that time of night. Much of this could have been avoided had
     [Appellant] heeded his legal duty to stop and remain at the scene.

            [Appellant] was explicitly informed on multiple occasions
     prior to his sentencing that the sentence was entirely up to this
     [c]ourt, and defense counsel acknowledged the same. Yet now
     [Appellant] complains that we abused our discretion by sentencing
     him in the bottom of the aggravated range of the sentencing
     guidelines. However, at the time of sentencing, both the
     Commonwealth and [Appellant] had agreed to defer to our
     judgment regarding sentencing. Thus, exercising our own
     judgment, we sentenced [Appellant] to an aggravated range
     sentence, and that sentence was neither beyond the statutory
     limit nor manifestly excessive. Likewise, we do not find credible
     any claim that the aggravated range sentence we imposed, in
     recognition of the effect on the victim and the seriousness of the
     circumstances surrounding the offense, was an abuse of
     discretion. This claim is meritless.

           We noted on the record at the time of sentencing that we
     had reviewed both the pre-sentence investigation report of
     [Appellant] as well as [Ms. Hudson’s] impact statement. We
     considered all of the information contained within those
     documents in reaching our decision of sentence. We also noted

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        that we were sentencing [Appellant] in the aggravated range due
        to “the seriousness of the offense, and the impact that this offense
        has had on the victim.” Here [Appellant] calls into question the
        adequacy of our reasons for imposing an aggravated range
        sentence, stating that “the seriousness of the offense is taken into
        account in the offense gravity score” and “the impact to the victim
        is incorporated into the accident charge.” However, when we
        cited to the “seriousness of the offense” we also took into
        consideration the serious nature of the surrounding
        circumstances and the consequences to the community,
        including the death of the bystander and the additional
        dangers to third parties that were posed as a result of
        [Appellant’s] flight from the scene, and not solely the
        nature of the offense easily calculable by the offense
        gravity score. At the same time, physical injury is not the
        only impact that this incident has had on [Ms. Hudson].
        [Ms. Hudson] also had to witness the death of an innocent
        person, and now experiences anxiety while driving at
        night. Therefore, we provided sufficient reasons for sentencing
        [Appellant] in the aggravated range of the sentencing guidelines
        for the Accidents charge.

Trial Court Opinion, 6/1/18, at 9-11 (footnotes omitted) (emphasis added).

        As noted above, the trial court had the benefit of a pre-sentence

investigation report (“PSI”), which gives rise to a presumption that the trial

court    properly   considered   and   weighed    all    relevant   factors.   See

Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016)

(“[W]here the sentencing judge had the benefit of a [PSI] report, it will be

presumed that he or she was aware of the relevant information regarding the

[Appellant]’s character     and weighed those           considerations along   with

mitigating statutory factors.”).     Moreover, by their nature, victim impact

statements are unique to the victim and illustrative of the crime’s impact on

the individual and the community.        Swope, 123 A.3d at 338; see also


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Commonwealth v. King, 182 A.3d 449 (Pa. Super. 2018) (discussing the

breadth and contents of a victim impact statement). Appellant’s argument

that the impact of a crime on a victim is already included in the Sentencing

Guidelines would nullify victim impact statements.       We cannot agree with

Appellant’s assertion, and we find no legal authority for it.

      Moreover, it is self-evident that the “seriousness” of an offense cannot

be considered in a vacuum.      Indeed, the seriousness of a given crime is

contemplated by the Sentencing Guidelines; however, an aggravated-range

sentence may be justified when the individual circumstances of the case are

atypical of the crime for which Appellant was convicted, making a more severe

punishment appropriate. Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.

Super. 2006).

      In the case at bar, the trial court explained that Appellant struck Ms.

Hudson’s vehicle causing her injuries, and Appellant fled without rendering

aid. This collision led to a bystander, Mr. Webb, who was attempting to render

aid to victims of an accident Appellant caused, being struck and killed by a

third vehicle in full view of Ms. Hudson and other witnesses. The trial court

considered the PSI, the distinct facts of this case, which included the death of

Mr. Webb that occurred in front of Ms. Hudson and other eyewitnesses, in

addition to Ms. Hudson’s impact statement. Trial Court Opinion, 6/1/18, at 9-

11.   The trial court concluded that the unique circumstances of this case

distinguished Appellant’s crimes from other instances of DUI and accidents


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involving death or personal injury. Id. Accordingly, we cannot agree that

factors already included within the Sentencing Guidelines were the sole basis

for Appellant’s sentence in the aggravated range.

      After review, we discern no abuse of discretion by the trial court

sentencing Appellant in the aggravated range of the Sentencing Guidelines.

Accordingly, Appellant is entitled to no relief, and we affirm the judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/06/2019




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