J-S42038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

MAURICE R. CAMPBELL

                           Appellant                   No. 1744 WDA 2015


            Appeal from the Judgment of Sentence October 20, 2015
      in the Court of Common Pleas of Allegheny County Criminal Division
                       at No(s): CP-02-CR-0005100-2015

BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 28, 2016

        Appellant, Maurice R. Campbell, appeals from the judgment of

sentence entered in the Allegheny County Court of Common Pleas, after he

pleaded guilty to one count of driving under the influence (“DUI”) under

Section 3802(d)(1) (any amount of controlled substance or metabolite)1 and



*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(d)(1). Section 3802(d) states:

           (d) Controlled substances.—An individual may not
           drive, operate or be in actual physical control of the
           movement of a vehicle under any of the following
           circumstances:

              (1) There is in the individual’s blood any amount of a:

                    (i) Schedule I controlled substance, as defined in
                    the act of April 14, 1972 (P.L. 233, No. 64),[ ]
                    known as The Controlled Substance, Drug, Device
                    and Cosmetic Act;
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one count of driving under with suspended operating privileges2 (“DUS”).

Appellant claims that the trial court erred at sentencing when it permitted a

victim impact statement from the mother of a child whom Appellant struck

and killed while committing the offenses. Relatedly, Appellant contends that


                   (ii) Schedule II or Schedule III controlled
                   substance, as defined in The Controlled
                   Substance, Drug, Device and Cosmetic Act, which
                   has not been medically prescribed for the
                   individual; or

                   (iii) metabolite     of     a   substance   under
                   subparagraph (i) or (ii).

             (2) The individual is under the influence of a drug or
             combination of drugs to a degree which impairs the
             individual’s ability to safely drive, operate or be in
             actual physical control of the movement of the vehicle.

             (3) The individual is under the combined influence of
             alcohol and a drug or combination of drugs to a degree
             which impairs the individual’s ability to safely drive,
             operate or be in actual physical control of the
             movement of the vehicle.

75 Pa.C.S. § 3802(d)(1)-(3).      Marijuana is a Schedule I controlled
substance. 35 P.S. § 780-104(1)(iv).

      The Commonwealth did not specify whether it was proceeding under
Subsection (d)(1)(i), (iii), or both.   However, the trial court apprised
Appellant of the elements of Subsection (d)(1)(i) at the guilty plea colloquy.
See N.T. Guilty Plea Hr’g, 9/3/15, at 7. Appellant concedes that his blood
contained an active compound. The affidavit of probable cause alleged
Appellant’s blood contained 6 ng/ml of Delta-9 THC and 47 ng/ml of Delta-9
Carboxy THC. Delta-9 THC refers to an active compound of marijuana, a
Schedule I controlled substance, while Delta-9 Carboxy THC refers to a
metabolite. See Commonwealth v. Jones, 121 A.3d 524, 526 n.3 (Pa.
Super. 2015), appeal denied, 135 A.3d 584 (Pa. 2016).
2
    75 Pa.C.S. § 1543(a).



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the trial court’s sentence of three to six months’ imprisonment for the

violation of Subsection (d)(1) was manifestly excessive because it relied on

the fact that the child died. We affirm.

      The trial court summarized the factual basis of Appellant’s guilty pleas

as follows:

         [Appellant] acknowledged that he was driving his vehicle
         on Gilmore Drive in Jefferson Hills, Pennsylvania[ on May
         3, 2013, between 9:00 and 9:30 p.m.] While he was
         driving, his vehicle collided with [Connor Zisk (“child”),] an
         eight year-old white male who was riding a skateboard.
         The child did not survive the accident and was pronounced
         dead later at a local hospital. [Appellant] remained at the
         scene and police officers responded to the accident.
         Officers noted an odor of alcohol emanating from
         [Appellant’s] breath and [Appellant] originally admitted
         that he had one alcoholic drink prior to the accident. A
         preliminary breath test was positive for alcohol.
         [Appellant] was later interviewed in more detail.           He
         admitted to having three alcoholic drinks earlier on the day
         of the accident. Officers obtained blood samples from
         [Appellant]. Toxicology results indicated that [Appellant]
         had a blood alcohol level of .074 and that active and
         metabolite cannabinoids (marijuana) were present in his
         blood at the time of the accident. According to the medical
         examiner, the combination of alcohol and cannabinoids
         would have impaired [Appellant’s] ability to drive.

            It was learned during the investigation that
         [Appellant’s] driving privileges were suspended at the time
         of the accident. It was also learned that at the time of the
         accident, the victim had been lying down while riding a
         skateboard in the middle of the road.

Trial Ct. Op., 1/19/16, at 2.




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        On January 19, 2015, Appellant was charged with three counts of DUI3

as first offenses and one count of DUS. On September 3, 2015, the parties

appeared before the trial court for a scheduled non-jury trial.              The

Commonwealth asserted that its critical witnesses were absent, but that plea

negotiations    were   underway.4      Appellant’s   counsel   represented   that

Appellant was willing to plead guilty to DUI under Subsection (d)(1) and

DUS, but denied being impaired at the time of the accident. N.T. Plea Hr’g

at 2-3. Following a recess, Appellant offered his guilty pleas to DUI under

Subsection (d)(1) and DUS.        Appellant accepted the facts stated in the

affidavit of probable cause and the laboratory reports. Id. at 8, 11-12. The

parties agreed that the plea was open as to sentencing and the remaining

two DUI counts, relating to impairment due to drugs and/or alcohol, would

be withdrawn. Id. at 8. The court accepted Appellant’s pleas.

        On October 20, 2015, the trial court convened a sentencing hearing.

The court, over Appellant’s objections, permitted the child’s mother, Jamie

Grimenstein, to give a victim impact statement.          N.T. Sentencing Hr’g,

10/20/15, at 3, 14-15.         The court, after hearing the statement and




3
 In addition to the charge under Subsection (d)(1), Appellant was charged
under Sections 3802(d)(2) (DUI-under influence of drug) and (d)(3) (DUI-
under combined influence of drug and alcohol).
4
    There was some indication that the child’s family was not present.




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arguments from counsel,5 sentenced Appellant to three to six months’

imprisonment for DUI,6 with no further penalty on the DUS count. The court

explained its sentence to Appellant as follows:

         [Y]ou do present as somebody who understands the
         seriousness of your conduct.       You don’t present as
         somebody who is just trying to get out from under things.
         And you are not charged with homicide by vehicle or
         involuntary manslaughter. And to the extent that mom’s
         understandable commentary about your driving impaired
         was part of her statement, I am ignoring that aspect of her
         statement because you were not charged in that fashion.
         But the problem with your case is you weren’t allowed to
         drive at all.

                                 *    *    *

         This is the part that we see over and over. People aren’t
         allowed to drive sober, either they get in the car sober,
         drive to a bar and they get drunk, or they get in the car
         and are already drunk and aren’t allowed to drive sober.

            Now, your case is a little different. You’re not allowed
         to drive at all.   You smoked pot, whether you were
         impaired or not. Do we need to get into that? Not only
         did you ignore the law in driving, you ignored the law in
         smoking pot then driving, and there was a very bad
         consequence that resulted.      Whether you were legally

5
 Appellant waived the opportunity to address the court.     N.T. Sentencing
Hr’g at 25.
6
  The Subsection (d)(1) offense was graded as a misdemeanor carrying a
maximum sentence of six months. See 75 Pa.C.S. § 3803(b)(2). Appellant
had a prior record score of two based on a 2008 conviction for possessing a
controlled substance with intent to deliver, for which he received probation.
N.T. Sentencing Hr’g at 19-20.       Appellant also had a prior summary
conviction for retail theft.   Id. at 19-20.      The Sentencing Guidelines
suggested a standard minimum sentence ranging between restorative
sanctions and two months, with an adjustment of three months for
aggravating or mitigating factors. See 204 Pa.Code § 303.16(a).



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        responsible in the analysis of legal causation, as
        [Appellant’s counsel] correctly observed, is almost
        irrelevant to me because you aren’t to be behind the wheel
        in the first place.

          We can I guess argue all day about is there a But For
        analysis we can use, such as but for that fact, would
        Connor Zink be alive? We can engage in that all we want.

           I think that the problem with your case is you defied
        the law at least twice before any of this happened, and
        there was a very bad consequence that resulted, not in
        terms of the legal causation, but in terms of the harm to
        the community from your disobeying the law, a very—
        sometimes it’s more esoteric, well, the community is being
        harmed because you created a risk by doing that. But
        here it’s real, and it’s unavoidable.

Id. at 27-28. The court acknowledged that its sentence was the harshest it

imposed for DUI. Id. at 29.

     Appellant filed a timely post-sentence motion on October 26, 2015,

which the trial court denied the following day.    Appellant took a timely

appeal and complied with the trial court’s order to submit a Pa.R.A.P.

1925(b) statement.    The trial court granted Appellant’s request for bail

pending appeal.

     Appellant presents the following questions for review:

        I. Did the [trial] court abuse its discretion by considering
        irrelevant victim impact testimony from Jaime Grimenstein
        at sentencing, as its admission constituted a denial of due
        process, because [Appellant] was not convicted of any
        crime in connection with the death of Ms. Grimenstein’s
        son?

        II. Did the [trial] court abuse its discretion by imposing a
        sentence which was manifestly excessive, unreasonable,
        and an abuse of discretion, as the trial court had no basis


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         for imposing a statutory maximum sentence which was, by
         the court’s admission, the harshest sentence it had ever
         imposed for a violation of the violation of 75 Pa.C.S. §
         3802(d)(1)?

Appellant’s Brief at 5 (capitalizations omitted).

      Appellant claims that it was improper for the trial court to permit a

victim impact statement and consider the fact of the child’s death as an

aggravating factor.    Appellant asserts that he “was not convicted of any

crime for which [the child] was a victim as defined by the Crime Victim[s]

Act, 18 P.S. § 11.103[ ]” and the testimony of the child’s mother was not

relevant in the sentencing proceeding. Id. at 19. He further argues that it

was impermissible for the trial court to sentence in the aggravated range

based on the child’s death and that the sentence was not justified by the

other factors cited by the trial court. Id. at 15-16, 37. He thus contends

that he is entitled to resentencing and in support, relies on Commonwealth

v. Smithton, 631 A.2d 1053 (Pa. Super. 1993), and Commonwealth v.

Ali, 112 A.3d 1210 (Pa. Super.), appeal granted, 127 A.3d 1286 (Pa.

2015).7 Id. at 29-32.

      The Commonwealth appears to concede that the child’s mother was

not a “victim” for the purposes of offering victim impact testimony.    See

Commonwealth’s Brief at 6-7.       However, the Commonwealth asserts that

7
  The Pennsylvania Supreme Court granted allowance of appeal in Ali to
consider the following question: “Does a sentencing judge have discretion to
consider victim impact evidence where the offense is not a ‘crime against a
person’?” Ali, 127 A.3d at 1286-87.



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“any error in allowing the statement of [child’s mother] was harmless

because it is evident from the record that the [trial] court was not

improperly influenced by it.” Id. at 7. In support, the Commonwealth notes

that Appellant stipulated to the affidavit of probable cause, which, in turn,

contained allegations that that he “fatally struck a young child, while under

the influence of alcohol and marijuana to the extent that it would impair an

individual’s ability to drive safely.”    Id. at 9.   Thus, the Commonwealth

suggests that the trial court properly considered evidence of the child’s

death and the allegations of Appellant’s impairment while driving.

      We find any error in the trial court’s decision to permit the victim

impact testimony did not constitute reversible error.     We further conclude

that it was not error for the trial court to consider the death of the child as

an aggravating factor when sentencing. Thus, we affirm.

      Preliminarily, it is well settled that

         “[t]here is no absolute right to appeal when challenging
         the discretionary aspect of a sentence.” Instead, “an
         appeal is permitted only after this Court determines that
         there is a substantial question that the sentence was not
         appropriate under the sentencing code.”        Further, to
         properly preserve such a claim for appellate review, the
         defendant must present the issue in either a post-sentence
         motion or raise the claim during the sentencing
         proceedings. In addition, the defendant must “preserve
         the issue in a court-ordered Pa.R.A.P. 1925(b) concise
         statement and a Pa.R.A.P. 2119(f) statement.”

Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citations

omitted).



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      Appellant has met the procedural requirements for preserving his

sentencing challenges for appeal.     See id. (reiterating the requirements

that a claim be preserved before the trial court, in a Rule 1925(b)

statement, and set forth in a Rule 2119(f) statement).                Moreover,

Appellant’s claims raise substantial questions. See id. (finding a claim that

the trial court erred in imposing an aggravated-range sentence on charges

that were nolle prossed presented a substantial question); see also

Commonwealth v. Rhodes, 990 A.2d 732, 745 (Pa. Super. 2009) (finding

claim that the trial court impermissibly relied on uncharged crimes and

conduct raised a substantial question).      Therefore, we grant allowance of

appeal to review the sentence.

      “[T]he proper standard of review when considering whether to affirm

the   sentencing   court’s   determination    is   an   abuse   of   discretion.”

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (citation omitted).

As to a trial court’s decision to permit a victim impact statement, we note

that “prior to imposing sentence [a] sentencing judge may appropriately

conduct an inquiry broad in scope, largely unlimited either as to the kind of

information he may consider, or the source from which it may come.”

Rhodes, 990 A.2d at 746 (citation and quotation marks omitted).             “The

information used by a judge in imposing sentence need not necessarily meet

the standards of admissible evidence at trial; however, the due process

clause does apply to the sentencing procedure.”           Commonwealth v.



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Shoemaker, 313 A.2d 342, 347 (Pa. Super. 1973) (citation omitted). “We

review challenges to the admission of victim impact statements for an abuse

of discretion.” Ali, 112 A.3d at 1222 (citation omitted). However, the right

to offer a victim impact statement is also rooted in our statutes.     See id.

(discussing 18 P.S. § 11.103 and 42 Pa.C.S. § 9738). The interpretation of

a statute raises a question of law for which our standard and scope of review

is de novo and plenary.    Commonwealth v. Van Aulen, 952 A.2d 1183,

1184 (Pa. Super. 2003).

      Moreover, it is well settled that

         A sentence is invalid if the record discloses that the
         sentencing court may have relied in whole or in part upon
         an impermissible consideration. This is so because the
         court violates the defendant’s right to due process if, in
         deciding upon the sentence, it considers unreliable
         information,    or   information   affecting  the   court’s
         impartiality, or information that it is otherwise unfair to
         hold against the defendant.

Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010)

(citation omitted).

      The Crime Victims Act provides that “[v]ictims of crime” have a right

“[t]o have opportunity to offer prior comment on the sentencing of a

defendant . . . .”8 18 P.S. § 11.201(5). The statute defines a “victim,” in

relevant part, as:



8
 “Victim impact evidence is designed to show each victim’s uniqueness as a
human being. Victim impact evidence is simply another form or method of



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         (1) A direct victim.

         (2) A parent or legal guardian of a child who is a
         direct victim, except when the parent or legal guardian of
         the child is the alleged offender. . . .

18 P.S. § 11.103 (emphases added).        A “direct victim” is “[a]n individual

against whom a crime has been committed or attempted and who as a

direct result of the criminal act or attempt suffers physical or mental

injury, death or the loss of earnings under this act.” Id. (emphasis added).

A “crime” includes an offense under “75 Pa.C.S. Ch. 38 (relating to driving

after imbibing alcohol or utilizing drugs).” Id.

      Although Appellant relies on Smithton and Ali for the proposition that

his conviction for DUI under Subsection (d)(1) did not involve a “victim,”

those cases are distinguishable.    In Smithton, this Court concluded that

impact testimony from homeowners was improper because the defendant

was acquitted of the alleged offenses committed against the homeowners

and was only convicted of crimes committed at a hospital and at city hall.

Smithton, 631 A.2d 1054, 1057-58. In Ali, this Court concluded that there

was an insufficient connection between the defendant’s convictions for

selling synthetic marijuana (“K2”) from his store and the fatalities resulting

from a motor vehicle accident in which the driver allegedly ingested K2

purchased from the defendant’s store. Ali, 112 A.3d at 1213-15. The Ali


informing the sentencing authority about the specific harm caused by the
crime in question.” Ali, 112 A.3d at 1222.




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Court emphasized that the defendant did not sell the K2 directly to the

occupants of the vehicle on the day of the crash, but was held liable as an

accomplice for that specific transaction based on a codefendant’s actions.

Id. at 1222-24.

        Instantly, Appellant was convicted of DUI, a “crime” under the Crime

Victims Act.      See 18 P.S. § 11.103.         Appellant struck the child while

committing the offense, i.e., operating the vehicle with a Schedule I

controlled substance in his blood. The accident resulted in the child’s death.

Appellant did not deny the allegation he voluntarily ingested marijuana

before driving. Therefore, the logical connections between the criminal act,

the accident, and the child’s death are not as remote as in Smithton or Ali.

        Accordingly, we return to Crime Victims Act’s definition that a “direct

victim” suffer death “as a direct result of the criminal act.” See 18 P.S. §

11.103. When construing similar language in the restitution statute, see 18

Pa.C.S. § 1106,9 this Court has rejected the proposition that DUI is a




9
    The restitution statute provides, in relevant part:

           (a) General rule.—Upon conviction for any crime wherein
           property has been stolen, converted or otherwise
           unlawfully obtained, or its value substantially decreased as
           a direct result of the crime, or wherein the victim
           suffered personal injury directly resulting from the
           crime, the offender shall be sentenced to make restitution
           in addition to the punishment prescribed therefor.




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victimless crime. See Commonwealth v. Walker, 666 A.2d 301, 309 (Pa.

Super. 1995) (holding occupants of vehicle struck by the DUI defendant

were “victims” entitled to restitution for their injuries); 10 Commonwealth v.

Fuqua, 407 A.2d 24, 28 n.10 (Pa. Super. 1979) (holding homeowner whose

residence was struck by the DUI defendant was entitled to restitution).

Critically, however, this Court concluded that the “direct result” language

required consideration of the causal connection between the criminal act and

the injury suffered before finding that restitution to the victim was

appropriate. See Walker, 666 A.2d at 309.

     Instantly, the issue of causation was contested. The trial court did not

render findings that there was a specific connection between Appellant’s DUI

conviction and the child’s death. See N.T. Sentencing at 27-28; cf. Walker,

666 A.2d at 309. Therefore, we conclude that the court erred in permitting

child’s mother to testify as a “victim” without first considering whether the

child’s death was a direct result of Appellant’s criminal acts. See 18 P.S. §

11.103; Walker, 666 A.2d at 309; see also Ali, 112 A.3d at 1222-24.




18 Pa.C.S. § 1106(a) (emphases added). The definition of a “victim” under
the restitution statute refers to the predecessor statute of the current Crime
Victims Act.
10
  We note the Walker Court also addressed a former Sentencing Guideline
enhancement for DUI when a victim suffers serious bodily injury and
concluded that provision also required a showing that the DUI violation was
the cause of the injury. See Walker, 666 A.2d at 305.



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      Our conclusion that the Crime Victims Act does not recognize the

child’s mother’s right to present an impact statement without a finding that

the child was a direct victim does not end our inquiry.     We must further

consider whether the irrefutable facts that an accident occurred and a

fatality resulted are proper considerations when sentencing for DUI under

Subsection (d)(1).

      Traditionally, the purposes of the DUI statute are two-fold: “to keep

drunk drivers off of the road and to protect the Commonwealth’s citizens.”

See Commonwealth v. James, 863 A.2d 1179, 1184 (Pa. Super. 2004)

(en banc) (citation omitted).   Moreover, the DUI statute contains “zero-

tolerance” provisions based on the mere presence of substances or certain

levels of alcohol, without language that the defendant be “under the

influence” or suffer an “impair[ment of] the individual’s ability to safely

drive.” Compare 75 Pa.C.S. § 3802(a)(2), (b), (c), (d)(1)(i)-(iii), (f)(1)(i)-

(ii), with id. § 3802(a)(1), (d)(2)-(4), (f)(2)-(4); see also Commonwealth

v. McMullen, 756 A.2d 58, 62 (Pa. Super. 2000) (describing provision

criminalizing .02% blood alcohol content for teenage drivers as “zero-

tolerance”).

      Subsection (d)(1) is a zero-tolerance provision. Moreover, marijuana

remains a Schedule I controlled substance, which has “a high potential for

abuse, no currently accepted medical use in the United States, and a lack of

accepted safety for use under medical supervision.”     See 35 P.S. § 780-



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104(1)(iv).    Subsection   (d)(1)   thus     reflects   the   legislature’s   policy

determination that the mere presence of active marijuana compounds in a

driver’s blood presents an unacceptable risk to public safety.           This is so

regardless of whether the individual is impaired, is simply inattentive from

ingesting the substance, or believes he is unimpaired. See id.

      The unrebutted allegations that Appellant ingested marijuana before

driving and had active marijuana components in his blood compel the

conclusion that he posed an unacceptable risk to public safety.                 See

McMullen, 756 A.2d at 62. The fact that the accident occurred and resulted

in the child’s death actualized the inherent risks underlying the zero-

tolerance policies in Subsection (d)(1), and Subsection(d)(1)(i) in particular.

Therefore, we cannot agree with Appellant’s proposition that the fatality was

irrelevant or an impermissible factor. Accordingly, we discern no basis upon

which to disturb the trial court’s judgment that an additional punishment

was warranted to impress on Appellant the seriousness of his misconduct

when electing to drive after ingesting marijuana, the impact on the

community, and the need to avoid future misconduct.             See 42 Pa.C.S. §

9721(b). Similarly, we discern no basis to conclude that the aggravation of

the sentence based on the child’s death was manifestly excessive.

      In sum, the record did not support the child’s mother’s right to offer

victim impact testimony under the Crime Victims Act. However, because it

was proper for the trial court to consider the fact that Appellant’s DUI



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conviction involved a fatality, we conclude that the admission of her

testimony at sentencing was harmless and Appellant’s sentencing challenges

warrant no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/28/2016




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