Commonwealth v. Best

J. S09001/15

2015 PA Super 151

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES L. BEST, : No. 1628 WDA 2012
:
Appellant :

Appeal from the Judgment of Sentence, June 5, 2012,
in the Court of Common Pleas of Bedford County
Criminal Division at No. CP-05-CR-0000033-2011

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.

OPINION BY FORD ELLIOTT, P.J.E.: FILED JULY 16, 2015

Appellant appeals the judgment of sentence imposed following his

several driving under the influence (“DUI”) related convictions. Finding no

error, we affirm.

On the evening of December 14, 2010, appellant was involved in a

head-on collision with another vehicle on East Graceville Road in

Breezewood. When Trooper Matthew J. Bonin approached appellant,

appellant exhibited a strong odor of alcohol, slurred speech, and bloodshot,

glassy eyes. (Notes of testimony, 3/6/12 at 170.) Bonin asked appellant

how much he had had to drink, and appellant replied that he had consumed

three or four beers. (Id. at 169-170.) Bonin testified that appellant

admitted to him that he went into the opposite lane of travel, but that it was

caused by him hitting a patch of ice. (Id. at 168-169.) According to Bonin,
J. S09001/15

appellant failed field sobriety tests. (Id. at 170-172.)1 Bonin then

investigated appellant’s car. Bonin did not possess a search warrant at the

time, but subsequently presented an application to a magisterial district

judge and was granted a warrant. (See Application for Search Warrant and

Authorization, 12/15/10.) In appellant’s vehicle, Bonin observed several

open beer cans and a whisky flask. (Id. at 173.) When Bonin opened the

flask, he observed a liquid that had an odor of alcohol. (Id. at 175-176.)

Bonin also found a pipe and small amount of marijuana in the console of the

vehicle. (Id. at 176-177.) Appellant refused chemical testing. (Id. at 191.)

When Bonin later went to appellant’s home to serve an arrest warrant, he

overheard appellant telling his mother that he had consumed five or

six beers. (Id. at 193.) Bonin testified that it was his opinion that appellant

was under the influence of alcohol, impaired, and incapable of safe driving.

(Id. at 192.)

Appellant stipulated at trial that his license was suspended at the time

of the accident, and that he had been designated as a “habitual offender” by

the Pennsylvania Department of Transportation as a result of prior offenses.

(Id. at 197-198.) No details were given to the jury as to the nature of those

prior offenses.

1
A video of the tests recorded by a mobile video recorder in the police
vehicle was played for the jury. (Id. at 186-187.)

-2-
J. S09001/15

Testimony was also presented from the teenage occupants of the other

vehicle. Kyle Frankenberry was driving and his girlfriend McKenna Sipes was

in the passenger seat. (Id. at 113.) Frankenberry testified that just before

the crash, he attempted to swerve to avoid the collision. (Id. at 113, 115.)

Frankenberry was trapped in his vehicle after the crash and Sipes was

unconscious. (Id. at 116.) Frankenberry was taken by ambulance to the

hospital. (Id. at 117-118.) He remembered his dislocated leg being put

back in place in his hip, but he did not recall the subsequent surgery. (Id.

at 118.) Frankenberry spent seven days at this hospital and then five

additional days at another hospital. (Id. at 119.) Finally, Frankenberry

described the ongoing ill effects that the accident has had on his life. (Id. at

119-122.)

Sipes also testified. She remembered riding in the car that night, but

almost nothing about the accident; her first memory was hearing one of the

EMT’s talking to her in the car. (Id. at 144-148.) She did state that neither

she nor Frankenberry had had anything to drink that night and that

Frankenberry was driving normally. (Id. at 146-147.) Sipes was in the

hospital for six days and had hip surgery. (Id. at 149.) Sipes also

described the ill effects that the accident has had on her life. (Id. at

149-153.)

Dr. Corey Schutt testified as to his treatment of both Frankenberry and

Sipes for a dislocated hip and fractured pelvis. (Id. at 76-80.) He described

-3-
J. S09001/15

the injuries as serious and the surgery as intense. (Id. at 76-77.) Another

trauma surgeon who treated the victims, Dr. Simon Lampard, also described

the victims’ various injuries. (Id. at 86-100.)

On March 7, 2012, the jury found appellant guilty of (2) counts of

aggravated assault by vehicle while DUI; (1) count of accidents involving

death or personal injury while not properly licensed; (1) count DUI general

impairment; (1) count of habitual offenders; (1) count of reckless driving;

(1) count of restriction on alcoholic beverages; (1) count driving under

suspension, DUI related; (1) count driving on roadways laned for traffic;

(1) count careless driving; (1) count of possession of a small amount of

marijuana for personal use; and (1) count of possession of drug

paraphernalia.2 On May 7, 2012, the court imposed an aggregate sentence

of 59 months’ to 20 years’ imprisonment. Post-sentence motions were

denied on September 17, 2012, and a timely notice of appeal was filed on

October 11, 2012.

Appellant raises the following issues on appeal:

I. APPELLANT CHALLENGES THE SUFFICIENCY
OF THE EVIDENCE TO CONVICT HIM OF THE
OFFENSES OF AGGRAVATED ASSAULT BY
VEHICLE WHILE DUI, 75 Pa.C.S.A. § 3735.1,
COUNTS 1 AND 2, AS THE EVIDENCE
ADDUCED AT TRIAL FAILED TO PROVE:
(a) CAUSATION, NAMELY, FAILED TO PROVE
IN EACH COUNT THAT APPELLANT CAUSED

2
75 Pa.C.S.A. §§ 3735.1(a); 3742.1(a); 3802(a)(1); 6503.1; 3736(a);
3809(a); 1543(b)(1); 3309; 3714(a), respectively, and 35 P.S. § 780-
113(a)(31) and (a)(32), respectively.

-4-
J. S09001/15

SERIOUS BODILY INJURY TO THE VICTIM IN
EACH COUNT AND/OR THAT THE ALLEGED
VIOLATION OF 75 Pa.C.S.A. § 3802 CAUSED
SERIOUS BODILY INJURY TO THE VICTIM IN
EACH COUNT; (b) INTENT, NAMELY,
NEGLIGENCE, IN EACH COUNT, AS
PROVIDED AT 18 Pa.C.S.A. § 302 (b)
AND/OR (c) IN EACH COUNT, FOR THE
NECESSARY LESSER-INCLUDED OFFENSE OF
AN ALLEGED VIOLATION OF 75 Pa.C.S.A.
§ 3802, AS PROVIDED AT 75 Pa.C.S.A.
§ 3802(a)(1), THAT APPELLANT IMBIBED A
SUFFICIENT AMOUNT OF ALCOHOL SUCH
THAT HE WAS RENDERED INCAPABLE OF
SAFE DRIVING, OPERATING OR BEING IN
ACTUAL PHYSICAL CONTROL OF THE
MOVEMENT OF THE VEHICLE.

II. APPELLANT CHALLENGES THE SUFFICIENCY
OF THE EVIDENCE TO CONVICT HIM OF THE
OFFENSE OF ACCIDENT INVOLVING DEATH
OR PERSONAL INJURY WHILE NOT PROPERLY
LICENSED, 75 Pa.C.S.A. § 3742.1(a),
COUNT 3, AS THE EVIDENCE ADDUCED AT
TRIAL FAILED TO PROVE: (a) CAUSATION,
NAMELY, THAT APPELLANT CAUSED THE
ACCIDENT TO OCCUR AND/OR THAT
APPELLANT’S SUSPENDED/REVOKED
OPERATING PRIVILEGE HAD ANY CAUSATIVE
EFFECT UPON THE ACCIDENT; AND/OR
(b) INTENT, NAMELY, NEGLIGENCE AS
PROVIDED IN 18 Pa.C.S.A. § 302(b).

III. APPELLANT CHALLENGES THE SUFFICIENCY
OF THE EVIDENCE TO CONVICT HIM OF THE
OFFENSE OF POSSESSION OF A SMALL
AMOUNT OF MARIJUANA, 35 P.S. § 780-113
(a)(31)(i), COUNT 4, AS THE EVIDENCE
ADDUCED AT TRIAL FAILED TO PROVE THAT
APPELLANT POSSESSED, ACTUALLY OR
CONTRUCTIVELY [sic], MARIJUANA.

IV. APPELLANT CHALLENGES THE SUFFICIENCY
OF THE EVIDENCE TO CONVICT HIM OF THE

-5-
J. S09001/15

OFFENSE OF POSSESSION OF DRUG
PARAPHERNALIA, 35 P.S. § 780-113(a)(32),
COUNT 5, AS THE EVIDENCE ADDUCED AT
TRIAL FAILED TO PROVIDE THAT APPELLANT
POSSESSED, ACTUALLY OR
CONSTRUCTIVELY, DRUG PARAPHERNALIA.

V. APPELLANT CHALLENGES THE SUFFICIENCY
OF THE EVIDENCE TO CONVICT HIM OF THE
OFFENSE OF DUI-GENERAL IMPAIRMENT-
REFUSAL, 75 Pa.C.S.A. § 3802(a)(1), AS THE
EVIDENCE AT TRIAL FAILED TO PROVE:
(a) THAT APPELLANT IMBIBED A SUFFICIENT
AMOUNT OF ALCOHOL SUCH THAT HE WAS
RENDERED INCAPABLE OF SAFE DRIVING,
OPERATING OR BEING IN ACTUAL PHYSICAL
CONTROL OF THE MOVEMENT OF THE
VEHICLE; AND (b) THAT APPELLANT
REFUSED TO SUBMIT TO CHEMICAL
TESTING.

VI. APPELLANT CHALLENGED [sic] THE
SUFFICIENCY OF THE EVIDENCE TO CONVICT
HIM OF THE OFFENSE OF HABITUAL
OFFENDERS, 75 Pa.C.S.A. § 6503.1, COUNT
7, AS THE EVIDENCE ADDUCED AT TRIAL
FAILED TO PROVE APPELLANT HAD
ACCUMULATED THE REQUISITE NUMBER OF
CONVICTIONS FOR SEPARATE AND DISTINCT
OFFENSES DESCRIBED AND ENUMBERATED
[sic] IN 75 Pa.C.S.A. 1542(b) WITHIN A FIVE
(5) YEAR PERIOD.

VII. APPELLANT CHALLENGES THE SUFFICIENCY
OF THE EVIDENCE TO CONVICT HIM OF THE
OFFENSE OF RECKLESS DRIVING,
75 Pa.C.S.A. § 3736(a), COUNT 8, AS THE
EDVIDENCE [sic] ADDUCED AT TRIAL FAILED
TO PROVE THAT APPELLANT ACTED WITH
WANTON OR WILLFUL DISREGARD FOR THE
SAFETY OF PERSONS OR PROPERTY.

VIII. APPELLANT CHALLENGES THE SUFFICIENCY
OF THE EVIDENCE TO CONVICT HIM OF THE

-6-
J. S09001/15

OFFENSE OF RESTRICTION ON ALCOHOLIC
BEVERAGES, 75 Pa.C.S.A. § 3809(a), COUNT
9, AS THE EVIDENCE ADDUCED AT TRIAL
FAILED TO PROVE THAT APPELLANT
POSSESSED, ACTUALLY OR
CONSTRUCTIVELY, AN OPEN BEVERAGE
CONTAINER OR CONSUMED A CONTROLLED
SUBSTANCE OR ALCOHOLIC BEVERAGE IN A
MOTOR VEHICLE WHILE THE MOTOR
VEHICLE WAS LOCATED ON A HIGHWAY IN
THIS COMMONWEALTH.

IX. APPELLANT CHALLENGES THE SUFFICIENCY
OF THE EVIDENCE TO CONVICT HIM OF THE
OFFENSE OF DRIVING WHILE OPERATING
PRIVILEGE IS SUSPENDED OR REVOKED,
75 Pa.C.S.A. § 1543 (b)(1.1), COUNT 10, AS
THE EVIDENCE ADDUCEDC [sic] AT TRIAL
FAILED TO PROVE APPELLANT HAD ANY
AMOUNT OF ALCOHOL OR CONTROLLED
SUBSTANCE IN HIS BLOOD.

X. APELLANT [sic] CHALLENGES THE
SUFFICIENCY OF THE EVIDENCE TO CONVICT
HIM OF THE OFFENSE OF DRIVING ON
ROADWAYS LANED FOR TRAFFIC,
75 Pa.C.S.A. § 3309(1), COUNT 11, AS THE
EVIDENCE ADDUCED AT TRIAL FAILED TO
PROVE THAT APPELLANT FAILED TO
MAINTAIN THE VEHICLE AS NEARLY AS
PRACTICABLE ENTIRELY WITHIN A SINGLE
LANE AND/OR THAT APPELLANT MOVED
FROM THE LAND WITHOUT FIRST
ASCERTAINING THAT THE MOVEMENT COULD
BE DONE SAFELY.

XI. APPELLANT CHALLENGES THE SUFFICIENCY
OF THE EVIDENCE TO CONVICT HIM OF THE
OFFENSE OF CARELESS DRIVING,
75 Pa.C.S.A. § 3714, COUNT 12, AS THE
EVIDENCE ADDUCED AT TRIAL FAILED TO
PROVE THAT APPELLANT ACTED IN
CARELESS DISREGARD FOR THE SAFETY OF
PERSONS OR PROPERTY.

-7-
J. S09001/15

XII. APPELLANT ASSERTS THAT THE JURY’S
VERDICTS ON COUNTS 1, 2, AND 3 WERE
AGAINST THE WEIGHT OF THE EVIDENCE
INASMUCH AS NO CREDIBLE TESTIMONY
WAS PRESENTED ON CAUSATION,
APPELLANT’S INTENT, THE VICTIMS’
SERIOUS BODILY INJURIES, THE
ALLEGATION THAT APPELLANT HAD IMBIBED
A SUFFICIENT AMOUNT OF ALCOHOL TO
RENDER HIM IN CAPABLE [sic] OF SAFE
DRIVING OR OPERATION OF THE VEHICLE
AND THE TESIMONY [sic] PRESENTED WAS
NOT CREDIBLE.

XIII. APPELLANT ASSERTS THAT THE JURY’S
VERDICT ON COUNT 5 WAS AGAINST THE
WEIGHT OF THE EVIDENCE INASMUCH AS
NO CREDIBLE TESTIMONY WAS PRESENTED
AS TO APPELLANT’S POSSESSION, ACTUALLY
OR CONSTRUCTIVELY, OF DRUG
PARAPHERNALIA AND THE TESTIMONY
PRESENTED WAS NOT CREDIBLE.

XIV. APPELLANT ASSERTS THE JURY’S VERDICT
ON COUNT 7 WAS AGAINST THE WEIGHT OF
THE EVIDENCE INASMUCH AS NO CREDIBLE
TESTIMONY WAS PRESENTED THAT
APPELLANT HAD ACCUMULATED THE
REQUISITE NUMBER OF CONVICTIONS FOR
SEPARATE AND DISTENCT [sic] OFFENSES
DESCRIBED AND ENUMERATED IN
75 Pa.C.S.A. § 1542(b) WITHIN A FIVE (5)
YEAR PERIOD.

XV. APPELLANT ASSERTS THAT THE COURT’S
VERDICT ON COUNT 6 WAS AGAINST THE
WEIGHT OF THE EVIDENCE INASMUCH AS
NO CREDIBLE TESTIMONY WAS PRESENTED
THAT APPELLANT POSSESSED, ACTUALLY OR
CONSTRUCTIVELY, MARIJUANA.

XVI. APPELLANT ASSERTS THAT THE COURT’S
VERDICT ON COUNT 8 WAS AGAINST THE

-8-
J. S09001/15

WEIGHT OF THE EVIDENCE INASMUCH AS
NO CREDIBLE TESTIMONY WAS PRESENTED
THAT APPELLANT ACTED WITH A WANTON
OR WILLFUL DISREGARD FOR THE SAFETY
OF PERSONS OR PROPERTY.

XVII. APPELLANT ASSERTS THAT THE COURT’S
VERDICT ON COUNT 9 WAS AGAINST THE
WEIGHT OF THE EVIDENCE INASMUCH AS
NO CREDIBLE TESTIMONY WAS PRESENTED
THAT APPELLANT POSSESSED, ACTUALLY OR
CONSTRUCTIVELY, AN OPEN ALCOHOLIC
BEVERAGE CONTAINER OR CONSUMED A
CONTROLLED SUBSTANCE OR ALCOHOLIC
BEVERAGE IN A MOTOR VEHICLE WHILE THE
MOTOR VEHICLE WAS LOCATED ON A
HIGHWAY IN THIS COMMONWEALTH.

XVIII. APPELLANT ASSERTS THE COURT’S VERDICT
ON COUNT 10 WAS AGAINST THE WEIGHT
OF THE EVIDENCE INASMUCH AS NO
CREDIBLE TESTIMONY [WAS] PRESENTED
THAT APPELLANT HAD ANY AMOUNT OF
ALCOHOL OR CONTROLLED SUBSTANCE IN
HIS BLOOD.

XIX. APPELLANT ASSERTS THAT THE COURT’S
VERDICT ON COUNT 11 WAS AGAINST THE
WEIGHT OF THE EVIDENCE INASMUCH AS
NO CREDIBLE TESTIMONY WAS PRESENTED
THAT APPELLANT FAILED TO MAINTAIN THE
VEHICLE AS NEARLY AS PRACTICABLE
ENTIRELY WITHIN A SINGLE LANE AND/OR
THAT APPELLANT MOVED FROM THE LANE
WITHOUT FIRST ASCERTAINING THAT THE
MOVEMENT COULD BE DONE SAFELY.

XX. APPELLANT ASSERTS THAT THE COURT’S
VERDICT ON COUNT 12 WAS AGAINST THE
WEIGHT OF THE EVIDENCE INASMUCH AS
NO CREDIBLE TESTIMONY WAS PRESENTED
THAT APPELLANT ACTED IN CARELESS
DISREGARD FOR THE SAFETY OF PERSONS
OR PROPERTY.

-9-
J. S09001/15

XXI. AS SET FORTH IN PARAGRAPHS 17, 18 AND
19 OF THE OMNIBUS PRE-TRIAL MOTION
FOR RELIEF, FILED OF RECORD ON MARCH 1,
2012, WHICH ARE INCORPORATED HEREIN
BY REFERENCE, AND RENEWED AT TRIAL,
APPELLANT WAS PREJUDICED BY THE
EVIDENCE OF HIS PRIOR RECORD INCIDENT
TO THE PROOF OF COUNTS 3 7 AND 10 IN
THE TRIAL OF THE UNSEVERED COUNTS 1,
2, 4, 5 AND 6, AND THE COURT ABUSED ITS
DISCRETION IN FAILING TO GRANT
SEVERANCE.

XXII. AS SET FORTH IN PARAGRAPHS 7, 8 AND 9
OF THE OMNIBUS PRE-TRIAL MOTION, FILED
OF RECORD ON MARCH 1, 2012, WHICH ARE
INCOPORATED [sic] HEREIN BY REFERENCE,
AND RENEWED AT TRIAL, THE COURT ERRED
BY OMITTING TO PROPERLY RULE ON THE
SUPPRESSION MOTION FOR THE VEHICLE
SEARCH AND TO SUPPRESS THE EVIDENCE
OF SUCH SEARCH AND THE FRUITS
THEREOF, INASMUCH AS THE WARRANTLESS
SEARCH OF THE VEHICLE WAS NOT SUPPORT
[sic] BY EXIGENCY OR OTHER SUFFICIENT
BASIS; INCLUDING, WITHOUT LIMITATION,
THE OFFICER’S OBSERVATION OF A SINGLE
BLUE PILL.

XXIII. AS SET FORTH IN PARAGRAPHS 7, 8, 9, 11,
13 AND 14 OF THE OMNIBUS PRE-TRIAL
MOTION, FILED OF RECORD ON MARCH 1,
2012, WHICH ARE INCORPORATED HEREIN
BY REFERENCE, AND RFENEWED [sic] AT
TRIAL, THE COURT ERRED BY OMITTING TO
PROPERLY RULE ON THE SUPPRESSION
MOTION FOR THE SEARCH WARRANT AND TO
SUPPRESS THE EVIDENCE OF SUCH SEARCH
AND THE FRUITS THEREOF, INASMUCH AS
THE SEARCH WARRANT’S AFFIDAVIT
DEPENDED UPON TAINTED INFORMATION
AND FAILED TO STATE PROBABLE CAUSE.

- 10 -
J. S09001/15

XXIV. AS SET FORTH IN PARAGRAPHS 15 AND 16
OF THE OMNIBUS PRE-TRIAL MOTION, FILED
OF RECORD ON MARCH 1, 2012, WHICH ARE
INCORPORATED HEREIN BY REFERNCE [sic],
AND RENEWED AT TRIAL, THE COURT ERRED
BY OMITTING TO PROPERLY RULE ON THE
SUPPRESSION MOTION FOR THE
STATEMENTS AND TO SUPPRESS THE
EVIDENCE OF SUCH STATEMENTS AND THE
FRUITS THEREOF, INASMUCH AS, UNDER
THE TOTALITY OF THE CIRCUMSTANCES, THE
ORAL STATEMENTS WERE CUSTODIAL, AND
OBTAINED WITHOUT MIRANDA WARNINGS,
AND INVOLUNTARY.

XXV. THE COURT ERRED BY DENYING
APPELLANT’S REQUEST BOTH AT TRIAL TO
RE-OPEN THE CASE TO ALLOW APPELLANT
TO PRESENT A MATERIAL WITNESS BY
DENYING APPELLANT’S POST-SENTENCE
REQUEST FOR A NEW TRIAL BASED UPON
SAID ISSUE.

XXVI. THE COURT ERRED BY PERMITTING THE
COMMONWEALTH TO AMEND THE CRIMINAL
INFORMATION TO INCLUDE AN ADDITIONAL
COUNT OF AGGRAVATED ASSAULT BY
VEHICLE WHILE DUI, A COUNT OF
POSSESSION OF SMALL AMOUNT, AND A
COUNT OF POSSESSION OF DRUG
PARAPHERNALIA AS SAID AMENDMENTS
CAUSED PREJUDICE TO DEFENDANT.

XXVII. THE COURT ABUSED ITS DISCRETION AND
ERRED BY MISCALCULATING APPELLANT’S
PRIOR RECORD SCORE WITH RESPECT TO
APPELLANT’S PRIOR CONVICTIONS
INASMUCH AS APPELLANT ASSERTS THAT
THIS PRIOR RECORD SHOULD HAVE BEEN
CALCULATED AS A ONE (1), AND BY FAILING
TO GIVE PROPER CONSIDERATION TO
APPELLANT’S REHABILITATIVE NEEDS.

Appellant’s brief at 7-16.

- 11 -
J. S09001/15

Before addressing the multitude of issues raised on appeal, we find it

necessary to reiterate former Justice Sandra Newman’s admonishment to all

appellate advocates who labor under the misguided belief that raising as

many issues as possible constitutes effective appellate advocacy:

The approach to appellate advocacy embarked on by
present counsel for Appellant brings to mind the
words of the Honorable Ruggero J. Aldisert of the
United States Court of Appeals for the Third Circuit:

With a decade and a half of federal
appellate court experience behind me, I
can say that even when we reverse a
trial court it is rare that a brief
successfully demonstrates that the trial
court committed more than one or two
reversible errors. I have said in open
court that when I read an appellant’s
brief that contains ten or twelve points, a
presumption arises that there is no merit
to any of them . . . [and] it is [this]
presumption . . . that reduces the
effectiveness of appellate advocacy.

Aldisert, “The Appellate Bar: Professional
Competence and Professional Responsibility-A View
From the Jaundiced Eye of the Appellate Judge,”
11 Cap. U.L. Rev. 445, 458 (1982) (emphasis in
original).

Though much quoted by members of the judiciary,
this passage often “rings hollow,” as demonstrated
by the present case. While we certainly understand
the duty of the attorney to be a zealous advocate,
we pose that conduct such as what we presently
encounter does not advance the interests of the
parties and, if anything, is a disservice to the client.
See, e.g., United States v. Hart, 693 F.2d 286,
287 (3d Cir.1982) (“[b]ecause of the inordinate
number of meritless objections pressed on appeal,
spotting the one bona fide issue was like finding a

- 12 -
J. S09001/15

needle in a haystack”); also Commonwealth v.
Ellis, 534 Pa. 176, 626 A.2d 1137, 1140 (1993)
(“[w]hile criminal defendants often believe that the
best way to pursue their appeals is by raising the
greatest number of issues, actually, the opposite is
true: selecting the few most important issues
succinctly stated presents the greatest likelihood of
success”). As observed by Justice Robert H.
Jackson:

Legal contentions, like the currency,
depreciate through over-issue. The mind
of an appellate judge is habitually
receptive to the suggestion that a lower
court committed an error. But
receptiveness declines as the number of
assigned errors increases. Multiplicity
hints at lack of confidence in any one . . .
[E]xperience on the bench convinces me
that multiplying assignments of error
will dilute and weaken a good case
and will not save a bad one.”

Jackson, “Advocacy Before the United States
Supreme Court,” 25 Temple L.Q. 115, 119 (1951)
(emphasis supplied). See also Smith v. Murray,
477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434
(1986) (“Th[e] process of winnowing out weaker
arguments on appeal and focusing on those more
likely to prevail, far from being evidence of
incompetence, is the hallmark of effective appellate
advocacy”); Jones v. Barnes, 463 U.S. at 745, 751-
52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)
(observing that “[e]xperienced advocates since time
beyond memory emphasized the importance of
winnowing out weaker arguments on appeal and
focusing on one central issue if possible, or at most
on a few key issues”); Buehl v. Vaughn, 166 F.3d
163, 174 (3d Cir.1999) (commenting that “[o]ne
element of effective appellate strategy is the
exercise of reasonable selectivity in deciding which
arguments to raise”). Though we are mindful of the
ramifications of our decisions in capital cases, no
circumstance gives carte blanche for the borderline

- 13 -
J. S09001/15

abuse of the legal system as represented by the
conduct of Appellant’s present attorney in this
matter.

Commonwealth v. Robinson, 864 A.2d 460, 479-480 n.28 (Pa. 2004),

cert. denied, Robinson v. Pennsylvania, 546 U.S. 983 (2005).

This form of appellate advocacy is a disservice to court and client alike.

It not only creates a presumption that there are no issues of merit, it also

invites cursory review. With these thoughts in mind, we turn to the issues

on appeal.

In his first eleven issues, appellant challenges the sufficiency of the

evidence as to each of his twelve convictions. Our standard of review is as

follows:

The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying [the above]
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we
note that the facts and circumstances established by
the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be
drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of
fact while passing upon the credibility of witnesses

- 14 -
J. S09001/15

and the weight of the evidence produced, is free to
believe all, part or none of the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014), quoting

Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa.Super. 2014) (citations

omitted; bracketed material in original).

In Issue I, appellant challenges the sufficiency of the evidence as to

aggravated assault by vehicle while DUI. This offense is defined as follows:

(a) Offense defined.--Any person who
negligently causes serious bodily injury to
another person as the result of a violation of
section 3802 (relating to driving under
influence of alcohol or controlled substance)
and who is convicted of violating section 3802
commits a felony of the second degree when
the violation is the cause of the injury.

75 Pa.C.S.A. § 3735.1(a).

McKenna Sipes testified that Kyle Frankenberry was driving normally,

and Frankenberry testified that he had to swerve to try to avoid colliding

with appellant’s vehicle. Trooper Bonin testified that appellant admitted

entering the opposite lane of travel. From this, jurors could conclude that

Frankenberry was driving his vehicle in the appropriate lane and that

appellant had negligently entered Frankenberry’s lane of travel. Bonin also

testified that appellant was under the influence of alcohol and incapable of

safe travel at the time of the accident. Finally, both Frankenberry and Sipes

described the continuing effects their injuries have had on their lives,

including ongoing pain when standing. Both also described their inability to

- 15 -
J. S09001/15

perform athletically as they had in the past. The Vehicle Code describes

serious bodily injury as follows:

“Serious bodily injury.” Any bodily injury which
creates a substantial risk of death or which causes
serious, permanent disfigurement or protracted loss
or impairment of the function of any bodily member
or organ.

75 Pa.C.S.A. § 102.

The injuries described by Frankenberry and Sipes amount to

protracted impairment of their ability to stand and perform athletically.

Therefore, the jury could have concluded that appellant was driving under

the influence, that his inebriation caused him to drive negligently, and that

his negligence resulted in serious bodily injury to two separate victims.

There was sufficient evidence to support two separate counts of aggravated

assault by vehicle while DUI.

In Issue II, appellant challenges the sufficiency of the evidence as to

accidents involving death or personal injury while not properly licensed. This

offense is defined as follows:

(a) Offense defined.--A person whose operating
privilege was disqualified, canceled, recalled,
revoked or suspended and not restored or who
does not hold a valid driver’s license and
applicable endorsements for the type and class
of vehicle being operated commits an offense
under this section if the person was the driver
of any vehicle and caused an accident resulting
in injury or death of any person.

75 Pa.C.S.A. § 3742.1(a).

- 16 -
J. S09001/15

From our previous discussion, there was evidence from which the jury

could conclude that appellant caused the accident at issue and that the

victims suffered personal injury. Appellant stipulated at trial that his license

was suspended at the time of the accident. Therefore, the evidence was

sufficient to support appellant’s conviction for accidents involving death or

personal injury while not properly licensed.

In Issue III, appellant challenges the sufficiency of the evidence as to

possession of a small amount of marijuana for personal use. Appellant’s

argument in this regard questions whether there was any amount of

marijuana found and whether possession was adequately proven.

Trooper Bonin testified that the pipe contained a small amount of marijuana.

That is sufficient to prove that appellant possessed some amount of

marijuana. We also find that the evidence supported a finding of

constructive possession by appellant:

Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. Constructive possession is an
inference arising from a set of facts that possession
of the contraband was more likely than not. We
have defined constructive possession as conscious
dominion. We subsequently defined conscious
dominion as the power to control the contraband and
the intent to exercise that control. To aid
application, we have held that constructive
possession may be established by the totality of the
circumstances.

Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa.Super. 2014), quoting

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super.2012), appeal

- 17 -
J. S09001/15

denied, 63 A.3d 1243 (Pa. 2013) (internal quotation marks and citation

omitted).

The marijuana was found in the center console of appellant’s vehicle,

which is immediately beside and well within the reach of appellant.

Moreover, appellant was the only person in the vehicle. Clearly, appellant,

and only appellant, had conscious dominion over the marijuana. There was

sufficient evidence to support appellant’s conviction for possession of a small

amount of marijuana for personal use.

In Issue IV, appellant challenges the sufficiency of the evidence as to

possession of drug paraphernalia. Appellant questions whether appellant

possessed the marijuana pipe that was found. For the reasons previously

stated, we find that the evidence was sufficient to conclude that appellant

constructively possessed the marijuana pipe. Thus, there was sufficient

evidence to support appellant’s conviction for possession of drug

paraphernalia.

In Issue V, appellant challenges the sufficiency of the evidence as to

DUI general impairment. Trooper Bonin testified as to the indications that

appellant was under the influence of alcohol and that he was of the opinion

that appellant was incapable of safe driving. This is sufficient to support

appellant’s conviction for DUI general impairment. Appellant’s argument

points to equivocating testimony by Bonin or to other evidence that

appellant may not have been under the influence. As such, the argument

- 18 -
J. S09001/15

goes to the weight of the evidence and not the sufficiency. It is well settled

that in reviewing the sufficiency of the evidence, an appellate court may not

weigh the evidence and substitute its judgment for the fact-finder.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014). Finally, to the extent that

appellant’s issue questions whether he refused chemical testing, Bonin

testified that he refused and then signed a document to that effect.

In Issue VI, appellant challenges the sufficiency of the evidence as to

habitual offenders. Appellant has abandoned this issue on appeal.

In Issue VII, appellant challenges the sufficiency of the evidence as to

reckless driving. Reckless driving is defined as follows:

(a) General rule.--Any person who drives any
vehicle in willful or wanton disregard for the
safety of persons or property is guilty of
reckless driving.

75 Pa.C.S.A. § 3736(a).

The testimony of Frankenberry and Sipes, as well as Bonin’s testimony

that appellant admitted entering the opposite lane of travel, is sufficient to

support appellant’s conviction for reckless driving.

In Issue VIII, appellant challenges the sufficiency of the evidence as to

restriction on alcoholic beverages. This offense is defined as follows:

(a) General rule.--Except as set forth in
subsection (b), an individual who is an
operator or an occupant in a motor vehicle
may not be in possession of an open alcoholic
beverage container or consume a controlled

- 19 -
J. S09001/15

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, or an alcoholic beverage in a
motor vehicle while the motor vehicle is
located on a highway in this Commonwealth.

75 Pa.C.S.A. § 3809(a) (footnote omitted).

Trooper Bonin testified that appellant had several open beer cans in

his car. Bonin also testified that he opened the whiskey flask and that it

contained a liquid with an odor of alcohol. This was sufficient evidence to

support appellant’s conviction for restriction on alcoholic beverages.

In Issue IX, appellant challenges the sufficiency of the evidence as to

driving under suspension, DUI related. Appellant has abandoned this issue

on appeal.

In Issue X, appellant challenges the sufficiency of the evidence as to

driving on roadways laned for traffic. This offense is defined as follows:

Whenever any roadway has been divided into two or
more clearly marked lanes for traffic the following
rules in addition to all others not inconsistent
therewith shall apply:

(1) Driving within single lane.--A vehicle
shall be driven as nearly as practicable
entirely within a single lane and shall not
be moved from the lane until the driver
has first ascertained that the movement
can be made with safety.

75 Pa.C.S.A. § 3309.

- 20 -
J. S09001/15

The testimony of Frankenberry and Sipes, as well as Bonin’s testimony

that appellant admitted entering the opposite lane of travel, is sufficient to

support appellant’s conviction for driving on roadways laned for traffic.

In Issue XI, appellant challenges the sufficiency of the evidence as to

careless driving. Careless driving is defined as follows:

(a) General rule.--Any person who drives a
vehicle in careless disregard for the safety of
persons or property is guilty of careless
driving, a summary offense.

75 Pa.C.S.A. § 3714(a).

Again, the testimony of Frankenberry and Sipes, as well as Bonin’s

testimony that appellant admitted entering the opposite lane of travel, is

sufficient to support appellant’s conviction for careless driving.

In Issues XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, and XX, appellant

contends that various of his convictions are against the weight of the

evidence.3 We note our standard of review:

A motion for a new trial based on a claim that the
verdict is against the weight of the evidence is
addressed to the discretion of the trial court.
Commonwealth v. Widmer, 560 Pa. 308, 319, 744
A.2d 745, 751-52 (2000); Commonwealth v.
Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189
(1994). A new trial should not be granted because
of a mere conflict in the testimony or because the
judge on the same facts would have arrived at a
different conclusion. Widmer, 560 Pa. at 319-20,
744 A.2d at 752. Rather, “the role of the trial judge
is to determine that ‘notwithstanding all the facts,

3
Appellant has abandoned on appeal the weight of the evidence claims
raised at Issues XIV and XVIII.

- 21 -
J. S09001/15

certain facts are so clearly of greater weight that to
ignore them or to give them equal weight with all the
facts is to deny justice.’” Id. at 320, 744 A.2d at
752 (citation omitted). It has often been stated that
“a new trial should be awarded when the jury’s
verdict is so contrary to the evidence as to shock
one’s sense of justice and the award of a new trial is
imperative so that right may be given another
opportunity to prevail.” Brown, 538 Pa. at 435, 648
A.2d at 1189.

An appellate court’s standard of review when
presented with a weight of the evidence claim is
distinct from the standard of review applied by the
trial court:

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. Brown, 648
A.2d at 1189. 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.
Commonwealth v. Farquharson, 467
Pa. 50, 354 A.2d 545 (Pa.1976). 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.

Widmer, 560 Pa. at 321-22, 744 A.2d at 753
(emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013).

- 22 -
J. S09001/15

In these issues, appellant revisits the various evidence presented on

each conviction and how certain evidence mitigates against conviction.

However, as noted in Clay, this court does not reweigh the evidence; but

rather, this court only reviews how the trial court has analyzed the weight of

the evidence. Consequently, we will not discuss the various evidence as to

each conviction, but will only review the trial court’s review.

In its opinion, the trial court identified the correct standard by which it

was to assess the weight of the evidence (“when the jury’s verdict is so

contrary to the evidence as to shock one’s sense of justice”), and then

concluded that the jury’s verdict was consistent with the evidence. (Trial

court opinion, 9/17/12 at 3.) We find that the trial court acted within its

discretion.

In Issue XXI, appellant argues that the trial court erred in failing to

sever from his trial the counts pertaining to accidents involving death or

personal injury while not properly licensed, habitual offenders, and driving

under suspension, DUI related, because proof of these crimes requires

revealing to the jury that appellant has committed prior bad acts. Our

standard of review states, “[w]hether to join or sever offenses for trial is

within the trial court’s discretion and will not be reversed on appeal absent a

manifest abuse thereof, or prejudice and clear injustice to the defendant.”

Commonwealth v. Armstrong, 74 A.3d 228, 233 (Pa.Super. 2013),

appeal denied, 84 A.3d 1061 (Pa. 2014).

- 23 -
J. S09001/15

We find no prejudice or clear injustice to appellant. Appellant’s license

suspension and habitual offender status were presented to the jury by way

of stipulation, and no detail of any of appellant’s prior offenses was revealed.

As for the driving under suspension, DUI related, which would improperly

reveal to the jury that appellant had previously committed DUI, this was a

summary offense tried separately by the court.

In Issue XXII, appellant asserts that the trial court erred in failing to

suppress the fruits of Trooper Bonin’s warrantless vehicle search which

appellant contends was not supported by exigency or other basis.

Our standard of review in addressing a challenge to
the denial of a suppression motion is limited to
determining whether the suppression court’s factual
findings are supported by the record and whether
the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed
before the suppression court, we may consider only
the evidence of the Commonwealth and so much of
the evidence for the defense as remains
uncontradicted when read in the context of the
record as a whole. Where the suppression court’s
factual findings are supported by the record, we are
bound by these findings and may reverse only if the
court’s legal conclusions are erroneous. Where . . .
the appeal of the determination of the suppression
court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding
on an appellate court, whose duty it is to determine
if the suppression court properly applied the law to
the facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.

- 24 -
J. S09001/15

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014), quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations

omitted), cert. denied, Jones v. Pennsylvania, 562 U.S. 832 (2010).

We find that Trooper Bonin had probable cause to search appellant’s

car. Appellant had just been involved in a vehicular accident and appeared

to be under the influence of alcohol. As this implicated the violation of

several offenses, Bonin had probable cause to search the car for further

evidence of DUI. Our supreme court recently decided that Pennsylvania’s

automobile exception to the warrant requirement was in accord with current

federal jurisprudence; that is, that only probable cause and no exigency

beyond the inherent mobility of a motor vehicle is required to permit a

warrantless vehicle search. Commonwealth v. Gary, 91 A.3d 102 (Pa.

2014).4 The trial court properly declined to suppress the evidence here.

In Issue XXIII, appellant argues that the search warrant that was

subsequently granted for his car was not supported by probable cause and

the evidence should have been suppressed. Our analysis of the preceding

issue leads us to conclude that there is no merit here.

4
The decision in Gary was decided by a six-justice court. In an Opinion
Announcing the Judgment of the Court, former Justice McCaffery, speaking
for former Chief Justice Castille and Justice Eakin, adopted the federal
automobile exception for warrantless vehicle searches. Chief Justice Saylor
wrote a Concurring Opinion that joined the lead Opinion in adopting the
federal rule, but expressed concerns with the adoption of a bright line rule.
Justice Todd wrote a Dissenting Opinion that was joined by Justice Baer.
Former Justice Orie Melvin did not participate.

- 25 -
J. S09001/15

In Issue XXIV, appellant claims that his on-the-scene statement to

Trooper Bonin that he had three or four beers and his later statement to his

mother that he had five or six beers should have been suppressed as he was

in custody at the time of each statement and had not been given Miranda

warnings.5

Statements made during custodial interrogation are
presumptively involuntary, unless the accused is first
advised of her Miranda rights. Commonwealth v.
DiStefano, 782 A.2d 574, 579 (Pa.Super. 2001),
appeal denied, 569 Pa. 716, 806 A.2d 858 (2002).
Custodial interrogation is “questioning initiated by
law enforcement officers after a person has been
taken into custody or otherwise deprived of [her]
freedom of action in any significant way.” Miranda
[v. Arizona], supra [384 U.S. 436] at 444, 86 S.Ct
[1602] at 1612, 16 L.Ed.2d [694] at 706 [(1966)].
“[T]he Miranda safeguards come into play whenever
a person in custody is subjected to either express
questioning or its functional equivalent.”
Commonwealth v. Gaul, 590 Pa. 175, 180, 912
A.2d 252, 255 (2006), cert. denied, 552 U.S. 939,
128 S.Ct. 43, 169 L.Ed.2d 242 (2007).

Commonwealth v. Kunkle, 79 A.3d 1173, 1179-1180 (Pa.Super. 2013)

appeal denied, A.3d (Pa. April 22, 2015), quoting

Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008).

First, appellant was not in custody at the time he made his statement

at the accident scene. Trooper Bonin had just arrived at the accident scene

and was not even aware yet that any crime had occurred when he asked

appellant how much he had had to drink. Second, it is unclear from the

5
Miranda v. Arizona, 384 U.S. 436 (1966).

- 26 -
J. S09001/15

testimony whether Trooper Bonin had yet arrested appellant when he made

the second statement to his mother at their residence, but there was no

reason to suppress the second statement either. Appellant was not

responding to a question from Bonin or any other police officer, but either

made the statement spontaneously, or made it upon inquiry from his

mother. (Notes of testimony, 3/6/12 at 193-194.) Thus, even if appellant

was in custody at the time, he was not being subjected to police

interrogation. The statements were properly not suppressed.

In Issue XXV, appellant contends that the trial court erred in failing to

permit the record to be re-opened so that the defense could present an

unsubpoened defense witness who appeared at court after the record had

been closed. This witness was Tim College who would have testified that on

the day of the accident appellant met him at a bar where they each

consumed one beer and then went to College’s residence where they each

consumed another beer. (Notes of testimony, 3/7/12 at 197-198.)

Apparently, appellant was with Mr. College until 4:30 p.m., and the accident

occurred at 7:30 p.m. (Id. at 198.)

“Under the law of this Commonwealth a trial court has the discretion to

reopen a case for either side, prior to the entry of final judgment, in order to

prevent a failure or miscarriage of justice.” Commonwealth v. Baldwin, 8

A.3d 901, 903 (Pa.Super. 2010), affirmed, 58 A.3d 754 (Pa. 2012), quoting

Commonwealth v. Tharp, 575 A.2d 557, 558-559 (Pa. 1990). We find no

- 27 -
J. S09001/15

abuse of discretion in the trial court’s choice not to re-open the record.

College’s testimony carried little exculpatory value because he could not

account for appellant’s activity between 4:30 and 7:30, a three-hour period

during which appellant had sufficient time to consume a large amount of

alcohol.

In Issue XXVI, appellant asserts that the trial court erred in permitting

the Commonwealth to amend the criminal information to add a second count

of aggravated assault by vehicle while DUI, possession of a small amount of

marijuana, and possession of drug paraphernalia.

Relief is only proper where the amendment
prejudices the defendant. See [Commonwealth v.
Sinclair, 897 A.2d 1218 (Pa.Super.2006)] at 1223.
A court must consider a number of factors in
determining whether an amendment results in
prejudice:

(1) whether the amendment changes the
factual scenario supporting the charges;
(2) whether the amendment adds new
facts previously unknown to the
defendant; (3) whether the entire factual
scenario was developed during a
preliminary hearing; (4) whether the
description of the charges changed with
the amendment; (5) whether a change in
defense strategy was necessitated by the
amendment; and (6) whether the timing
of the Commonwealth’s request for
amendment allowed for ample notice and
preparation.

Commonwealth v. Veon, 109 A.3d 754, 768 (Pa.Super. 2015), quoting

Sinclair.

- 28 -
J. S09001/15

We see no prejudice to appellant. The order amending the criminal

information was dated September 29, 2011, and was entered October 4,

2011. Trial did not begin until March 6, 2012; thus, appellant had over five

months to prepare for these new charges. Moreover, as to the most serious

charge, aggravated assault by vehicle while DUI, appellant was already on

notice that he had to prepare a defense to an initial count of this offense,

and any defense to this additional count would likely be nearly identical to

the initial count. We see no merit here.

In Issue XXVII, appellant contends that the trial court miscalculated

his prior record score and that his sentence is excessive by failing to give

proper consideration to his rehabilitative needs. Preliminarily, we observe

that appellant has abandoned on appeal the issue pertaining to the

calculation of his prior record score; hence, we are reviewing the

discretionary aspects of appellant’s sentence only.

Such a challenge must be considered a petition for
permission to appeal. Commonwealth v. Hoch,
936 A.2d 515, 518 (Pa.Super. 2007). The Rules of
Appellate Procedure mandate that, to obtain review
of the discretionary aspects of a sentence, the
appellant must include in his brief a Concise
Statement of Reasons Relied Upon for Allowance of
Appeal. See Pa.R.A.P. 2119(f). This statement
must “raise a substantial question as to whether the
trial judge, in imposing sentence, violated a specific
provision of the Sentencing Code or contravened a
‘fundamental norm’ of the sentencing process.”
Commonwealth v. Flowers, 950 A.2d 330, 331
(Pa.Super. 2008).

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.Super. 2011).

- 29 -
J. S09001/15

Appellant has included in his brief the requisite concise statement in

which he asserts that the sentence imposed was so manifestly excessive as

to constitute too severe a punishment. We note that this has been held to

raise a substantial question. Id. Thus, we will review the discretionary

aspects of appellant’s sentence.

The trial court announced at sentencing that it had a pre-sentence

report. (Notes of testimony, 5/7/12 at 3.) As such, the court is presumed

to have considered all relevant sentencing factors:

Where pre-sentence reports exist, we shall continue
to presume that the sentencing judge was aware of
relevant information regarding the defendant’s
character and weighed those considerations along
with mitigating statutory factors. A pre-sentence
report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our
intention of engaging in an effort of legal purification,
we state clearly that sentencers are under no
compulsion to employ checklists or any extended or
systematic definitions of their punishment procedure.
Having been fully informed by the pre-sentence
report, the sentencing court’s discretion should not
be disturbed. This is particularly true, we repeat, in
those circumstances where it can be demonstrated
that the judge had any degree of awareness of the
sentencing considerations, and there we will
presume also that the weighing process took place in
a meaningful fashion. It would be foolish, indeed, to
take the position that if a court is in possession of
the facts, it will fail to apply them to the case at
hand.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

Thus, there is no merit to appellant’s assertion that the court did not

consider his rehabilitative needs in imposing his sentence. Moreover, the

- 30 -
J. S09001/15

trial court stated that because of positive factors in appellant’s behalf, it

would not impose an aggravated range sentence. (Notes of testimony,

5/7/12 at 58.) However, the court also reviewed appellant’s horrendous

driving record, which included at least one prior DUI, and concluded that any

sentence less than one at the top of the standard range would depreciate

the seriousness of the victims’ injuries and the offenses involved. (Id. at

58-59.) As such, we find no abuse of discretion in appellant’s sentence.

Accordingly, having found no merit to the issues on appeal, we will

affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/16/2015

- 31 -