Com. v. Gramby, E.

J. A20009/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
EARL GRAMBY, : No. 3210 EDA 2012
:
Appellant :

Appeal from the Judgment of Sentence, June 29, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0002186-2011

BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 25, 2014

Appellant Earl Gramby appeals from the judgment of sentence entered

on June 29, 2012, in the Court of Common Pleas of Philadelphia County

following his convictions of driving under the influence, homicide by vehicle

while driving under the influence, and homicide by vehicle. Following careful

review, we affirm.

Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, the facts of the instant case are as follows. On May 8,

2010, at approximately 11:20 p.m., Sharon Heuston (“Heuston”) was driving

her black Buick southbound on 61st Street in Philadelphia, approaching the

intersection with Passyunk Avenue. Appellant, who was high on PCP and

marijuana, drove his teal Saturn into the rear end of Heuston’s Buick at a

speed of approximately 60 miles an hour. This collision caused Heuston’s
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car to project into the intersection where it hit the right passenger side of a

green Kia Optima driven by Christi Migone (“Migone”), which was traveling

westbound on Passyunk Avenue through a green light. As a result of the

high-speed impact of appellant’s car, Heuston was ejected from her vehicle,

struck the windshield of the Kia, and then landed on the roadway

underneath her own vehicle, which had turned on its side.

Police Officers Eric Kornberg and Joseph Shorten immediately

responded to the radio call. Officer Kornberg stated the conditions were cold

and clear that day. (Notes of testimony, 5/8/12 at 84.) Upon arrival, they

saw a black Buick on its side and a green Kia in the middle of the

intersection. A teal Saturn was on its side. (Id. at 85.) Officer Kornberg

found the victim trapped and unresponsive. (Id. at 70-73, 85-88, 94.)

Officer Kornberg, Officer Shorten, and approximately 10 to 20 civilians

pushed the car off the victim’s body and used a support bar to prevent the

vehicle from falling back onto the ground. The victim had suffered multiple

blunt force injuries and internal bleeding; she was pronounced dead at

11:30 p.m. (Id. at 56.)

Officer Kornberg also heard Migone call for help. (Id. at 87.) Migone

was unable to exit her vehicle as her face was covered with glass. Medical

personnel and two officers took her out of the vehicle, and she was

transported to the University of Pennsylvania Hospital. (Id. at 88.) Migone

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sustained serious non-life-threatening injuries, as did appellant, who was

trapped in his vehicle.

Migone testified at trial that while driving her Kia westbound on

Passyunk, she saw that the traffic light was red. (Id. at 109.) As she

approached the intersection, she “started pumping the break [sic] to slow

down.” (Id. at 110.) The light turned green and she “took [her] foot off the

break [sic] and continued to go into the intersection” when she was

suddenly hit on the right passenger side and lost control of the car. (Id. at

110-111.) Migone testified she had not been drinking and was in control of

her motor skills; she did not remember anything else about the accident.

(Id. at 107, 111.)

Lisa Taylor and Wanda Smith were both traveling in a minivan on

Passyunk Avenue at the time of the accident. Taylor testified that she saw a

black Buick enter the intersection at a high rate of speed. (Id. at 64-67.)

Taylor stated the Buick was “out of control” and struck a Kia in the

intersection; the Kia had been in front of Taylor’s vehicle. (Id. at 69-70.)

After the crash, she noticed appellant’s Saturn in the intersection as well.

(Id. at 70.) On cross-examination, Taylor acknowledged that in her signed

statement to police, she stated she had seen the Buick making a left-hand

turn onto Passyunk. (Id. at 77.) On re-direct, she explained, “seeing the

Buick come out into the intersection, it happened so fast because you

couldn’t see exactly what car hit whom. But it seemed as though the Buick

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hit the Kia, and then the Kia hit the Saturn.” (Id. at 79.) Smith provided a

statement to the police, which was similar to Taylor’s. At trial, Taylor also

acknowledged that she did not look at the intersection until after she heard

the crash and “really couldn’t say” what happened. (Notes of testimony,

5/9/12 at 21, 26, 32.)

Officer Paul Busch, an expert in the field of accident reconstruction,

testified that he had reviewed the eyewitnesses’ statements to the police

and determined that the damage to the vehicles was inconsistent with their

accounts. The trial court summarized testimony of Officer Busch as follows:

Police Officer Busch, along with Police Officers
Sienkiewicz and Phillips investigated the crash site.
Officer Phillips took statements from witnesses at the
scene. Officer Busch took photos and
measurements, conducted vehicle examinations, and
evaluated the road surface. His investigation
included scene evaluation, vehicle examination,
physical evidence, injury documentation, statements
of principals, statements of witnesses, and other
information and results and conclusions. During his
investigation, Officer Busch observed that the traffic
lights were cycling properly. . . .

After his investigation, Officer Busch placed his
findings and conclusions in a ten-step report. In
arriving at his conclusions, Officer Busch conducted
damage analysis, an acceptable method in his field.
In reviewing the damage, Officer Busch concluded to
a reasonable degree of scientific certainty that the
collision between defendant’s vehicle and
Ms. Heuston’s vehicle was an off-center hit. As a
result of this collision, defendant’s vehicle had severe
crush damage to the front end. The damage was
angled more on the left than on the right. This
indicated that the left side of defendant’s vehicle first
impacted the right side of Ms. Heuston’s vehicle.

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Additionally, the ripple effect on defendant’s vehicle
resulted from energy transferring through the frame
and body components of defendant’s vehicle. The
intensity of the collision caused damage to the
A-pillar and 13-pillar of defendant’s vehicle. The
bowing of the body panel on the right front side of
defendant’s vehicle also indicated that his vehicle
had impacted the right side of Ms. Heuston’s vehicle,

There was rust transfer in the center hood of
defendant’s vehicle. When Officer Busch examined
Ms. Heuston’s vehicle, he observed a significant
amount of rust and rot throughout the underside.
Officer Busch concluded to a reasonable degree of
scientific certainty that the partial front end of
defendant’s vehicle rode underneath the partial right
rear of Ms. Heuston’s vehicle. As a result,
defendant’s vehicle caught rust debris as it went
through the underside of Ms. Heuston’s vehicle.
Officer Busch also looked inside the interior of
defendant’s vehicle and observed that the steering
column was hanging from the dashboard. This
indicated that defendant crashed into the steering
wheel. In addition to this damage, both air bags
were deployed and some vehicle components were
ajar.

When this first collision occurred,
Ms. Heuston’s vehicle sustained damage to both the
front end and rear end. The vehicle was compacted
to the point where the back seats were within close
proximity to the steering wheel. . . . The majority of
crush damage was on the right rear end of
Ms. Heuston’s vehicle. . . . The rear axle was
pivoted to where it was back on the right side and
forward on the left side, which was consistent with
defendant’s vehicle hitting the right rear of
Ms. Heuston’s vehicle. . . .

At the stop bar on 61st Street, there were red
pieces of brake light on the ground. Ms. Heuston’s
vehicle was the only vehicle missing brake lights. A
teal body panel piece, which belonged to defendant’s
vehicle, was also found at the stop bar.

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Officer Busch concluded to a reasonable degree of
scientific certainty that those pieces fell at the point
where defendant’s vehicle hit Ms. Heuston’s vehicle.
At that point, a gouge mark on the asphalt was also
present. This occurred when both vehicles collided
and dug into the highway. This was further evidence
that the first collision between defendant’s vehicle
and Ms. Heuston’s vehicle occurred at that location.
Officer Busch concluded to a reasonable degree of
scientific certainty that the front end of defendant’s
vehicle struck the right rear end of Ms. Heuston’s
vehicle when Ms. Heuston was stopping or had
stopped at the stop bar on 61st Street.

After observing the damage to defendant’s
vehicle and Ms. Heuston’s vehicle, Officer Busch
examined Ms. Migone’s vehicle, which had impact
damage to the front right side. Officer Busch also
observed damage on the windshield consistent with
soft body contact. This contact occurred when
Ms. Heuston was ejected from her vehicle. There
was no damage to the rear end or left side of
Ms. Migone’s vehicle. . . . Officer Busch concluded to
a reasonable degree of scientific certainty that the
collision between defendant’s vehicle and
Ms. Heuston’s vehicle caused Ms. Heuston’s vehicle
to project forward into the intersection where it
impacted Ms. Migone’s vehicle as it was traveling
westbound on Passyunk Avenue. At trial,
Officer Busch testified as an expert in accident
reconstruction and confirmed that his conclusions
regarding the first impact point and second impact

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point were made to a reasonable degree of scientific
certainty.[1]

After the investigation, defendant’s car was
seized and taken to the city fleet management yard.
Carl Bender, an automotive technician, inspected
defendant’s vehicle and determined that the brakes,
wheels and tires passed state inspection standards,
Mr. Bender did not inspect the undercarriage of
defendant’s vehicle because it was not requested. At
trial, he further noted that he would not have been
able to conduct an examination of the undercarriage
even if it was requested because the vehicle damage
made it unsafe to do so.

Trial court opinion, 4/11/13 at 3-6.

During the investigation, an officer found a water bottle containing

alcohol inside appellant’s vehicle. At that time, appellant was in the hospital

receiving surgical treatment for major leg trauma. After obtaining a search

warrant, Officer Busch seized one urine specimen and one blood serum

specimen from hospital personnel, who had obtained them from appellant.

Officer Busch also received a toxicology laboratory report from the hospital.

Based on this report, appellant was arrested.

1
On cross-examination, Officer Busch acknowledged that his theory of the
accident was inconsistent with the observations of the eyewitnesses. He
considered their statements to the police but disagreed with them and
believed the witnesses mistakenly identified the first impact was between
the Heuston’s Buick and Migone’s Kia. The officer conceded that he did not
apply principles of engineering or physics or mathematics to his analysis of
the accident. Officer Busch also acknowledged that he had no occasion to
observe the area of the street where the gouge mark was located to
determine if it was pre-existing and did not observe the undercarriages of
the Buick or Saturn to ascertain whether either car could have caused the
mark. (Id. at 193-222.)

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Dr. Richard Cohn testified as an expert in Forensic Toxicology and

Pharmacology. He testified that appellant tested positive for marijuana and

PCP and that his blood alcohol was within the legal limit. Dr. Cohn explained

that among the various ways that PCP can be ingested, it could be sprinkled

on marijuana or mixed with an organic fluid and marijuana. As the trial

court summarized:

Dr. Cohn stated that there was absolute
scientific certainty that defendant was under the
impaired effects of PCP and marijuana. By itself, the
PCP level in defendant’s blood rendered defendant
impaired. Dr. Cohn explained that the ingestion of
PCP has the following adverse effects: distortion to
person, place and time, hallucinations,
disorientation, dizziness, lightheadedness, inability to
judge and perceive surroundings, as well as
impairment of individual judgment and intellect.
Additionally, the ingestion of marijuana had an
aggravating effect. Dr. Cohn further explained that
an individual’s reflex coordination, ability to judge,
ability to make safety-sensitive decisions, ability to
provide for their welfare or the welfare of others is
impaired under the levels of PCP and marijuana
found in defendant’s blood. As a result, defendant’s
impairment prevented him from judging the distance
in front of him, putting his foot on the brake, or
swerving away from a slowing or stopped vehicle.
Dr. Cohn concluded to a reasonable degree of
scientific certainty that the PCP and marijuana
rendered defendant unfit to safely operate a motor
vehicle on the highway. Consequently, the impairing
levels of PCP and marijuana were directly and
causally related to this fatal accident.

Trial court opinion, 4/11/13 at 8.

On May 8, 2012, a jury trial before the Honorable Sandy L.V. Byrd

commenced. Appellant’s theory of the case conceded that he was guilty of

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driving under the influence of marijuana, but he claimed that he did not

voluntarily ingest PCP. Rather, he testified the marijuana he smoked must

have been laced with PCP unbeknownst to him. (Notes of testimony, 5/9/12

at 71.) Appellant denied feeling any of the side effects typically caused by

PCP. (Id. at 80-83.)

Relying upon statements made by eyewitnesses to the police,

Officer Shorten’s account of his accident report, and defense counsel’s

cross-examination of the accident investigation expert, appellant presented

a different theory of how the accident occurred. Officer Shorten testified

about his investigation of the accident. He identified photographs of the

intersection and roadways leading to it, which showed long straight

approaches. He also testified the intersection was a “high accident”

intersection at times, some of which resulted from drag racing. (Id. at 39,

52.)

Officer Shorten summarized a statement provided by Smith.

Officer Shorten testified that Smith stated a Saturn and a black Buick were

traveling on 61st Street. When the light changed, all vehicles accelerated

through the light. (Id. at 43.) The 2002 Kia was traveling westbound on

Passyunk Avenue, and all three vehicles made contact. (Id.) Smith

observed the operator of the Buick was ejected from the vehicle. (Id.) On

cross-examination, Officer Shorten acknowledged that he made a diagram of

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the accident in which he miswrote the designation of the cars in the

diagram. (Id. at 47.)

Appellant testified in his own defense and stated that while he was in

the left-hand lane, Heuston passed his car on the right and then drove into

his lane, in front of his car. (Id. at 101, 105.) He stated she traveled

through the intersection at a high rate of speed in an apparent attempt to

“take” a green or yellow light and turn left onto Passyunk Avenue. (Id. at

75.) Appellant, who was behind her and traveling at a speed of

approximately 35 to 40 miles per hour, also tried to make the light. He

claimed it was green as he approached and turned yellow just when he was

in the intersection. (Id. at 96.) Appellant’s theory was that Heuston’s Buick

struck Migone’s Kia, which had proceeded through the intersection

westbound on Passyunk Avenue, without having stopped to wait for the

westbound light to turn green. Instead, she anticipated the light turning

green; immediately after which, appellant’s car struck the rear of Heuston’s

vehicle.

On May 11, 2012, appellant was convicted of the aforementioned

crimes. On June 29, 2012, appellant was sentenced to 5 to 10 years on the

charge of homicide by vehicle while driving under the influence and a

concurrent term of 3½ to 7 years for the charge of homicide by vehicle; the

charge of DUI merged for sentencing purposes. Appellant filed

post-sentence motions on July 9, 2012, which were subsequently denied by

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operation of law. (Docket #7.) This timely appeal followed. (Docket #8.)

Appellant complied with the trial court’s order to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b),

42 Pa.C.S.A., and the trial court has filed an opinion. Herein, appellant

argues that the verdicts were against the weight of the evidence, and he

challenges the discretionary aspects of his sentence.2

Upon review of appellant’s weight of the evidence claim, we note that

we could find this challenge waived due to appellant’s undeveloped

argument. Appellant presents a boilerplate argument, summarily stating

that the expert testimony of Officer Busch and Dr. Cohn was insufficiently

reliable. (Appellant’s brief at 17.) Appellant summarily refers us to two

portions of the notes of testimony and the standard of review with no

detailed analysis. In fact, appellant’s summary of the argument section

provides more detail and analysis than the argument section of his brief.

(See id. at 15.) We could hold his failure to provide any developed

argument or legal citation results in waiver of this issue. Commonwealth

v. McMullen, 745 A.2d 683, 689 (Pa.Super. 2000) (Superior Court would

not address issue where appellant provided no developed arguments or

citations to relevant case law in support of it); Commonwealth v. Miller,

721 A.2d 1121, 1124 (Pa.Super. 1998) (appellant’s claim waived where he

2
Additional issues contained in his Rule 1925(b) statement have not been
presented by appellant to our court in his brief; hence, we deem them to
have been abandoned.

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failed to reference facts of the particular case or cite to the record itself in

any meaningful way); Commonwealth v. Long, 532 A.2d 853, 857

(Pa.Super. 1987), appeal denied, 541 A.2d 744 (Pa. 1998) (court will not

review issues that are not properly developed by citation to the record and

reference to supporting case law). See also Pa.R.A.P. 2119(a) (“The

argument shall be . . . followed by such discussion and citations of

authorities as are deemed pertinent”).

Nevertheless, we have reviewed appellant’s claim and find it meritless.

Our standard of review is as follows.

Appellate review of a weight claim is a review
of the exercise of discretion, not of the underlying
question of whether the verdict is against the weight
of the evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.

This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained[,] [t]he
term ‘discretion’ imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is
not exercised for the purpose of giving effect to the
will of the judge. Discretion must be exercised on
the foundation of reason, as opposed to prejudice,

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personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis

omitted) (citations omitted).

Appellant challenges the competency of Dr. Cohn and claims his

testimony is unreliable. Appellant also challenges the testimony of

Officer Busch, arguing that he is “poorly educated and remarkably

inadequately trained.”3 (Appellant’s brief at 15.) Appellant’s very brief

argument maintains that the testimony of the two eyewitnesses established

that the driver of the Buick entered the intersection at a high rate of speed

and struck the Kia, which caused appellant to unavoidably strike the rear of

the Buick. (Id.)

We find that the trial court did not abuse its discretion in finding that

the verdict was not against the weight of the evidence. Notably, appellant

exercised his ability to challenge the credibility and probative value of these

expert witnesses’ testimony by making these very points during the

voir dire and cross-examination. The jury obviously chose to credit the

3
We note that appellant did not object when Officer Busch was qualified as
an expert. (See notes of testimony, 5/8/12 at 128.) To the extent that he
suggests that Officer Busch was not qualified to testify as an expert, this
claim is waived. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be reviewed for the first time on appeal.”).

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testimony of the Commonwealth’s experts despite the defense’s attacks of

their testimony.

The jury was entitled to find the testimony of the Commonwealth’s

expert to be credible. Again, Officer Busch testified that his conclusion was

based on the damage sustained by the three vehicles involved as well as the

debris at the scene. Specifically, appellant’s car had significant left front-end

damage, where Heuston’s car sustained the most damage to the right rear

bumper, indicating that he crashed into her car from behind. Officer Busch

also explained that the rust had transferred from Heuston’s vehicle to the

hood of appellant’s Saturn due to the force of the impact which propelled

appellant’s car underneath Heuston’s car. The officer also observed a gouge

mark in the road surface and fallen pieces from both cars at that stop line on

61st Street indicating appellant’s car struck the victim’s car at that point.

Officer Busch testified that he observed “soft body” contact damage to

Migone’s Kia, which was caused by Heuston’s body hitting the windshield as

she was propelled out of her vehicle when appellant crashed into her car.

Additionally, the two eyewitnesses who initially told the police that

they observed the Buick make a left turn into the intersection testified

differently at trial. Taylor testified that “it happened so fast because you

couldn’t exactly see what car hit who” and Smith acknowledged that she did

not look at the intersection until after she heard the crash and “really

couldn’t say” what happened. (Notes of testimony, 5/8/12 at 32, 79.)

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Given this evidence, the verdict is hardly shocking to the judicial

conscience. Over the course of the trial, comprehensive evidence was

introduced to the jury indicating appellant was guilty of the crimes charged

and the weighing of the evidence against appellant’s competing evidence

was exclusively for the fact-finder. Thus, we reject appellant’s claim that the

verdict was against the weight of the evidence.

Appellant’s next issue concerns the discretionary aspects of his

sentence. Our standard of review in an appeal from the discretionary

aspects of a sentence 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. An abuse of discretion is more than just
an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
bias or ill-will.

Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003). There is

no absolute right to appeal the discretionary aspects of a sentence. Id.

Rather, appellant must petition this court for allowance of appeal and

demonstrate that a substantial question exists as to whether the sentence

imposed is inappropriate under the Sentencing Code. 42 Pa.C.S.A.

§ 9781(b).

In order to satisfy the requirements of § 9781(b), Pennsylvania Rule of

Appellate Procedure 2119(f) mandates that an appellant challenging the

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discretionary aspects of his sentence set forth in his brief a concise

statement of the reasons relied upon for allowance of appeal.

Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 5522 A.2d 17 (Pa.

1987). Before reaching the merits of an appellant’s argument, we must

review the appellant’s Rule 2119(f) statement to determine whether he has

presented a substantial question for our review. Commonwealth v.

Goggins, 748 A.2d 721, 726 (Pa.Super. 2000) (en banc), appeal denied,

759 A.2d 920 (Pa. 2000). A Rule 2119(f) statement that simply “contains

incantations of statutory provisions and pronouncements of conclusions of

law” is inadequate. See Commonwealth v. Bullock, 868 A.2d 516, 529

(Pa.Super. 2005), affirmed, 913 A.2d 207 (Pa. 2006), cert. denied, 550

U.S. 941 (2007)

Rather, only where the appellant’s Rule 2119(f)
statement sufficiently articulates the manner in
which 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, will such a
statement be deemed adequate to raise a substantial
question so as to permit a grant of allowance of
appeal of the discretionary aspects of the sentence.

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002).

Limiting our review to appellant’s Rule 2119(f) statement, we conclude

that appellant has failed to raise a substantial question. Nowhere in his

3½-page Rule 2119(f) statement does he explain what specific provision of

the Sentencing Code or fundamental norm underlying the sentencing

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process has been violated. 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. Wellor, 731 A.2d

152 (Pa.Super. 1999).

Rather, appellant makes a bald statement that his sentence was

excessive and avers that the court’s reasoning, “raises serious questions as

to the court’s judgment.” (Appellant’s brief at 19.) Appellant also

characterized the court’s judgment, in discounting the 37 letters written on

appellant’s behalf, as “backward.” (Id.) Appellant concludes his statement

by merely providing a quote from Commonwealth v. Eby, 784 A.2d 204

(Pa.Super. 2001), which discusses Section 9721(b) and then he summarily

concludes that “the trial court failed in its obligations at sentencing.” (Id. at

20.)

This vague and conclusory challenge is inadequate to allow for

discretionary review. Bullock, supra. Appellant has not sufficiently

articulated the manner in which his sentence purportedly violates either a

specific provision of the Sentencing Code or a fundamental norm underlying

the sentencing process. We could conclude appellant waived his claim

regarding the discretionary aspects of his sentence because of a deficient

Rule 2119(f) statement. Commonwealth v. Gibbs, 981 A.2d 274, 284-284

(Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010).

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Even if we were to find appellant’s statement represents the bare

minimum of a Rule 2119(f) statement, we would determine that he is not

entitled to relief. Essentially, appellant seems to suggest that the trial court

did not state adequate reasons on the record as to why appellant’s sentence

was beyond the aggravated range of the guidelines. This claim would raise

a substantial question. McNabb, supra at 55-56.

Our 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 appeal absent a manifest abuse of
discretion. An abuse of discretion is more than just
an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will.

Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.Super. 2002),

appeal denied, 820 A.2d 703 (Pa. 2003).

The Sentencing Code sets forth the considerations a trial court must

take into account when formulating a sentence:

[T]he court shall follow the general principle that the
sentence imposed should call for confinement that is
consistent with the protection of the public, the
gravity of the offense as it relates to the impact on
the life of the victim and on the community, and the
rehabilitative needs of the defendant.

42 Pa.C.S.A. § 9721(b). It also provides:

In every case in which the court imposes a sentence
for a felony or misdemeanor, modifies a sentence,
resentences an offender following revocation of

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probation, county intermediate punishment or State
intermediate punishment or resentences following
remand, the court shall make as a part of the record,
and disclose in open court at the time of sentencing,
a statement of the reason or reasons for the
sentence imposed.

Id. Furthermore, when sentencing a defendant beyond the ranges

recommended by the sentencing guidelines, the trial court must state its

reasons for departing from the guidelines on the record. Commonwealth

v. Bowen, 55 A.3d 1254, 1263-1264 (Pa.Super. 2012), appeal denied, 64

A.3d 630 (Pa. 2013). When doing so,

a trial judge . . . [must] demonstrate on the record,
as a proper starting point, [its] awareness of the
sentencing guidelines. Having done so, the
sentencing court may deviate from the guidelines, if
necessary, 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
[it] also states of record the factual basis and
specific reasons which compelled [it] to deviate from
the guideline range.

Id. at 1264 (emphasis added).

Instantly, the trial court was informed that the Sentencing Guideline

Form in this case indicated that with a prior record score of zero and the

offense gravity score of 10, the sentencing guideline range for homicide by

vehicle while DUI, a felony in the second degree, was 22 to 36 months plus

or minus 12. (Notes of testimony, 6/29/12 at 6-7.) Appellant was also

subject to a three-year mandatory minimum for the offense pursuant to

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75 Pa.C.S.A. § 3735(a). Appellant was sentenced to 5 to 10 years’

incarceration for homicide by vehicle DUI. Appellant was also convicted of

homicide by vehicle, a third degree felony; the guidelines for this offense

were 9 to 16 months plus or minus 9. (Id.) Herein, appellant was

sentenced to 3½ to 7 years’ incarceration for this offense. Appellant was

also convicted of DUI which merged with homicide by vehicle DUI. (Id.;

See Commonwealth v. Neupert, 684 A.2d 627, 628 (Pa.Super. 1006). As

appellant was sentenced beyond the guideline ranges, the trial court was

required to state its reasons for deviating from the guidelines on the record.

In the instant case, the sentencing court had the benefit of a

pre-sentencing report, a mental health report, and specifically noted that it

reviewed a sentencing guideline analysis. (Notes of testimony, 6/29/12 at

5.) See Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.Super.

2010) (stating that where a sentencing court is informed by a PSI report, “it

is presumed that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.”). The court commended appellant for his efforts to

be a productive citizen, his childhood experiences, and his need for

rehabilitation; however, it also reflected that it needed to take into account

the protection of the public. (Notes of testimony, 6/29/12 at 28.) The court

emphasized how serious it is to drive under the influence. (Id. at 29-30.)

The trial judge further took note of the extreme harm done by appellant as

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one of the victims was killed. The court also heard of the serious injuries

sustained by Migone and the permanent nerve damage she faced as a result

of the crash. (Id. at 22-23.)

Additionally, the court considered the victim impact letter from

Heuston’s life partner. (Id. at 18-20.) Moreover, attached to the

sentencing memorandum was a report that less than two weeks before the

accident, appellant had been stopped for a suspected DUI and was

specifically warned about the dangers of driving under the influence. (Id. at

17.) Thus, the court concluded that the mitigating evidence did not justify

the imposition of a lesser sentence. We cannot find the trial court abused its

discretion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/2014

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