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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT J. KRITZAR
Appellant No. 1173 EDA 2016
Appeal from the Judgment of Sentence dated March 7, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0005306-2014
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED MARCH 29, 2017
Appellant, Robert J. Kritzar, appeals from the judgment of sentence
imposed after he entered an open guilty plea to homicide by vehicle while
driving under the influence of alcohol (DUI), homicide by vehicle, DUI,
involuntary manslaughter, and related Motor Vehicle Code infractions. We
affirm.
The trial court recited the factual background underlying this appeal as
follows:
On May 28, 2014, at approximately 8:26 p.m., Trooper
Javier Alvarez of the Pennsylvania State Police was on routine
patrol traveling eastbound on State Route 22 in the area of
Route 145, Lehigh County, Pennsylvania. He observed vehicles
stopped in the westbound lanes of travel of State Route 22. The
trooper made a U-turn and began to travel west on State Route
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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22. There, he observed a tractor-trailer which was stopped. He
further observed a Jeep Wrangler crushed between the tractor-
trailer and a Ford F-750 box truck.
Trooper Alvarez further observed an off-duty paramedic,
Peter Alexander Bronstein, attempting to assist the sole
occupant of the Jeep Wrangler, Nathan Warke. Mr. Warke was
trapped in the vehicle and was seriously injured. Mr. Warke
subsequently died on scene. An autopsy was later performed on
Mr. Warke, indicating that Mr. Warke died from multiple blunt
force trauma injuries sustained as a result of a multiple motor
vehicle collision.
Various law enforcement personnel were called to the
scene, including Trooper Brianne Glad, a member of the
Pennsylvania State Police Collision and Accident Reconstruction
Unit, Trooper Robert Griffin, Jr., and Corporal Jason Troutman.
Through their investigation, it was determined that Frederick
Ackerman was the operator of the tractor-trailer. Mr. Ackerman
told the investigators that traffic traveling westbound on Route
22 was stop and go at the time when an unknown red vehicle
cut in front of him. Mr. Ackerman hit the tractor-trailer’s brakes
hard to avoid a collision with the red vehicle. No collision with
the red vehicle took place. He began to gain forward momentum
again when he heard a collision behind his tractor-trailer.
Thereafter, he heard and felt an impact with the rear of his
tractor-trailer.
On scene, Trooper Griffin observed an individual curled up
in the fetal position between the box truck and the center
concrete barrier that divided the east and westbound traffic. The
person identified himself as the driver of the box truck and was
later identified as the Appellant, Robert Kritzar. The Appellant
was evaluated by paramedics on the scene and taken to Lehigh
Valley Hospital by Trooper Griffin. No field sobriety tests were
conducted on the scene due to the Appellant’s medical condition
and the need for medical evaluation. At the hospital, a legal
blood draw was performed at 9:40 p.m. The blood sample was
later tested and it was determined that [Appellant’s] blood
alcohol level was .22.
During the transport to the hospital, the Appellant
indicated that he was driving along westbound Route 22, saw
brake lights in front of him, struck the Jeep in front of him, and
then both vehicles hit the rear of Mr. Ackerman’s tractor-trailer.
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Corporal Troutman, a member of the Forensic Evidence
Unit of the Pennsylvania State Police, remained on-scene to
collect evidence and to take photographs. When he opened the
door to Appellant’s Ford F-750 box truck, he noted that there
was money strewn about the inside because of the impact with
the Jeep Wrangler. He further observed a backpack with a can
of beer inside of it. During the course of an inventory search of
the interior, the trooper also found a half-empty bottle of Jim
Beam whiskey behind the passenger seats. Photographs were
taken of the contents of the vehicle.
At a later point in time, Trooper Glad conducted an
accident reconstruction investigation. In addition to taking
measurements at the scene and noting particular markings in
the roadway, Trooper Glad inspected the three vehicles involved
in the accident. She did not find any mechanical failures or
deficits in any of the vehicles that would result in causing the
crash. She also noted that the roadway was clear and the
lighting conditions adequate at the time of the accident and that
there were no defects in the roadway.
As part of her investigation of the Jeep, Trooper Glad
noted that the Jeep’s left brake light and center brake light both
exhibited what she determined to be “hot shock,” a condition
where the filaments of the bulbs for the brake light, while being
powered or illuminated, will stretch if subjected to a severe
collision. Trooper Glad determined that the “hot shock”
observed indicated that at the time of the crash the Jeep was
braking. Further, Trooper Glad downloaded the contents of the
engine control module of the Ford F-750 driven by the Appellant.
The engine download provided vehicle crash data for
approximately one minute prior to impact and then
approximately one minute post impact. Trooper Glad was able
to determine that the Appellant’s box truck, three seconds prior
to its impact with the Jeep, had been traveling at approximately
69 miles an hour and the vehicle’s throttle was 100% engaged.
One second later, the throttle decreased to approximately 14%.
Based on her training and experience, Trooper Glad opined that
the Appellant must have perceived something in front of him
that would have caused him to take pressure off of the gas
pedal. The Commonwealth believed that it was either the
tractor-trailer or the Jeep Wrangler engaging its brakes.
Two seconds later, the box truck’s engine control module
indicated an impact while the box truck was traveling
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approximately 66 miles per hour. The engine control module
further indicated that the Appellant finally engaged the brakes
on the box truck one second after the impact with the Jeep
Wrangler occurred.
Following the impact, the box truck and the Jeep then
traveled approximately 2 to 3 seconds as a single unit, and
impacted with the rear of the tractor-trailer.
This was the Appellant’s second DUI offense.
Trial Court Opinion, 6/9/16, at 3-6 (adopting the Commonwealth’s recitation
of facts at the plea hearing, N.T., 2/8/16, at 13-19).
Appellant does not dispute that he entered an open guilty plea – with
no agreement as to sentencing – on February 8, 2016. The Commonwealth
explained that many of the charges would merge, so that Appellant’s
“ultimate exposure would be to the sentences he would get for homicide by
vehicle while DUI, which is a felony in the second degree, for which he faces
a statutory maximum of ten years.” N.T., 2/8/16, at 2-3. The trial court
repeated to Appellant that the sentence had “a 3 year mandatory minimum
and it has a maximum up to 10 years in prison . . . Do you understand that
charge and that penalty?” Id. at 6. Appellant answered, “Yes, ma’am.” Id.
The trial court clarified:
And, again, I think I should reiterate for you that it would
appear, out of all those charges, there are only two that really
affect your exposure. One is the homicide by vehicle DUI related
and the other one is the homicide by vehicle.
One is punishable with a 3 year mandatory up to a 10 year
maximum. The other one is punishable by up to 7 years. I can
choose to run those two consecutive to one another, meaning
one after another, or I can choose to run those two concurrently
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with one another, meaning at the same time as one another. So
do you understand what your maximum exposure is?
Id. at 11. Again, Appellant answered, “Yes, ma’am.” Id.
After Appellant entered his plea, the trial court deferred sentencing to
March 7, 2016, when the trial court sentenced Appellant to an aggregate 5
to 10 years’ incarceration, followed by 5 years of probation. Appellant filed a
motion for reconsideration on March 16, 2016, which the trial court denied
on April 6, 2016. Appellant filed this timely appeal.
Appellant presents a single issue for our review:
Whether the Lower Court abused its discretion in imposing a
manifestly excessive and unreasonable sentence which is at the
statutory maximum and imposed when the Court failed to
consider any significant mitigating factors, failed to apply and
review all the necessary factors as set forth in 42 PA. C.S.A.
§9721(b) and 42 PA. C.S.A. §9781(c) and (d) or otherwise failed
to set forth appropriate reasons for its radical deviation from the
standard sentencing ranges?
Appellant’s Brief at 7.
Appellant challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P. 720;
(3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is
not appropriate under the Sentencing Code, 42 Pa.C.S.[
] § 9781(b).
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Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted) (quoting Commonwealth v. Evans, 901 A.2d 528, 533
(Pa. Super. 2006)).
Appellant filed a timely post-sentence motion and a notice of appeal,
and included a statement pursuant to Rule 2119(f) in his brief. Appellant’s
statement reads:
[Appellant] is requesting the review of his sentence based upon
his belief that the Sentencing Court abused its discretion when it
imposed a harsh and excessive sentence contrary to the
fundamental norms of the Sentencing Guidelines. The sentence
imposed was the maximum legally allowable sentence and was
more than double the standard sentencing range as applied to
[Appellant]. The deviation from the guideline range must be
supported by appropriate and factually justifiable reasons and
[Appellant] does not believe that the Court presented such
justification.
Appellant’s Brief at 11.
We thus determine whether Appellant has presented a substantial
question for our review. The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. Commonwealth v.
Paul, 925 A.2d 825, 828 (Pa. Super. 2007). “A substantial question exists
only when the appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Griffin, 65 A.3d at 935 (citation and internal
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quotation marks omitted). In making this determination, “we cannot look
beyond the statement of questions presented and the prefatory 2119(f)
statement to determine whether a substantial question exists.”
Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012).
Our review indicates that Appellant has raised a substantial question.
See Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014)
(“This Court has held that claims that the sentencing court imposed a
sentence outside the standard guidelines without stating adequate reasons
on the record presents a substantial question”). Although not expressly
included in his 2119(f) statement, Appellant’s issue as it relates to the
court’s alleged failure to consider the necessary sentencing factors, including
mitigating factors, also raises a substantial question. Commonwealth v.
Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (“It is well-established that a
sentencing court’s failure to consider mitigating factors raises a substantial
question”); Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super.
2013) (concluding that Appellant’s argument that the sentencing court did
not consider the appropriate sentencing factors raises a substantial
question). We therefore proceed to examine the merits of Appellant’s
sentencing issue, recognizing our standard of review.
Our standard of review of a challenge to the discretionary
aspects of 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. In this
context, an abuse of discretion is not shown merely by an
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error in judgment. Rather, the appellant must establish,
by reference to the record, that the sentencing court
ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at
a manifestly unreasonable decision.
In every case in which the court imposes a sentence for a felony
or a misdemeanor, 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. The
sentencing guidelines are not mandatory, and sentencing courts
retain broad discretion in sentencing matters, and therefore,
may sentence defendants outside the [g]uidelines. In every
case where the court imposes a sentence ... outside the
guidelines adopted by the Pennsylvania Commission on
Sentencing ... the court shall provide a contemporaneous written
statement of the reason or reasons for the deviation from the
guidelines. However, [t]his requirement is satisfied when the
judge states his reasons for the sentence on the record and in
the defendant's presence. Consequently, all that a trial court
must do to comply with the above procedural requirements is to
state adequate reasons for the imposition of sentence on the
record in open court.
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer
to the defendant's prior criminal record, age, personal
characteristics and potential for rehabilitation. Where pre-
sentence reports exist, we shall ... 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.
Antidormi, 84 A.3d at 760–61 (internal quotation marks and citations
omitted).
Instantly, the trial court stated that it had reviewed “every word and
every page” of the pre-sentence investigation report, which had attached to
it “the sentencing guidelines, some photographs that were taken from the
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crime scene, a copy of the criminal complaint and affidavit of probable cause
and then numerous letters from Mr. Warke’s family and friends.” N.T.,
3/7/16, at 5. The trial court also reviewed Appellant’s mental health records
and letters on behalf of Appellant. Id. In addition, the trial court heard
from Appellant, as well as three of the victim’s friends and the victim’s
father. At the conclusion of the sentencing hearing, the trial court addressed
Appellant:
[Y]ou made some horrible decisions that put you on the road
after having consumed an unbelievable amount of alcohol in a
truck.
And that was a recipe for tragedy. . . .
This can’t be a personality contest. I can’t base a sentence
on who was the better, nicer person, you or the victim, or who
has more support today. . . .
But you have had a horrible life. You’ve had a horrible,
horrible life.
And it seems that any time that you were able to make
headway in your life – you are a one-step-forward-and-two-
steps-back kind of guy. And you drank for solace. You were
self-medicating. You drank to avoid feeling things that you
should have been feeling and dealing with.
And it doesn’t excuse the behavior. It causes me to say
you can’t undo your past but you have to make a decision as to
how you want to go forward. You have to, at some point, walk
away from what has been in your life into something that’s more
positive and productive.
Regardless of the sentence that I give you, one, this young
man is not going to be brought back and two, these people are
not going to be made whole. But three, regardless of the
sentence I give you, you will be released into the community at
some point. . . .
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So that is what you need to be thinking about in prison.
The sentence isn’t going to satisfy anyone because Mr. Warke is
right, there’s not parity between a life without your loved one
and whatever I impose on you.
N.T, 3/7/16, at 32-35.
The Commonwealth then referenced the pre-sentence investigation
report and the fact that Appellant’s first DUI was less than two years prior to
the underlying DUI. Id. at 35. The Commonwealth further noted that in
this case, Appellant was “on the job,” driving a commercial vehicle, and had
a blood alcohol level of .22 at the time of the crash. Id. at 36-38.
Prior to imposing Appellant’s sentence, the trial court addressed the
victim’s friends and family:
I have a lot of masters to serve in order to do justice. And
I’m stammering around because I’m trying to find a way to
gently say what cannot be gently said, which is, I’m going to
decline to run the two sentences that can be given that don’t
merge consecutive to one another. I will not do that.
And it’s not because I don’t hear you and it’s not because I
don’t feel your pain. It’s because I do believe that there has to
be some acknowledgment that [Appellant] has chosen to plead
guilty, to plead guilty open and to accept responsibility. . . .
I believe [Appellant] has caused all of you irreparable
harm and that his conduct was nothing other than dangerous,
reckless, and unconscionable. But at the end of the day, I have
to do what I think is right.
N.T., 3/7/16, at 38-39.
The trial court then stated Appellant’s sentence:
So in 5306 of 2014, in Counts 1, 3, 4, 5 and 6, all of those
counts merge. And the sentence is . . . imprisonment for a
period of not less than 5 nor more than 10 years in a state
correctional institution. . . .
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As to Count 2, the sentence is . . . probation for a period
of 5 years under the supervision of the Pennsylvania State Parole
Board to run consecutive to the sentence previously imposed.
...
So the sum total of the sentence here is 5 to 10 years in a
state correctional institution to be followed by 5 years of state
supervised probation.
Id. at 39-41.
Based on the foregoing, we conclude that the record adequately
supports the trial court’s imposition of the statutory-maximum sentence.
“The court is not required to parrot the words of the Sentencing Code,
stating every factor that must be considered under Section 9721(b). . . .
[T]he record as a whole must reflect due consideration by the court of the
statutory considerations.” Antidormi, 84 A.3d at 761 (internal quotation
marks and citation omitted). Furthermore, Appellant’s claim that the court
failed to consider the necessary sentencing factors, including mitigating
facts, is meritless because the court had the benefit of a pre-sentence
investigation report. See id.; Commonwealth v. Downing, 990 A.2d 788,
794 (Pa. Super. 2010) (“Our Supreme Court has determined that where the
trial court is informed by a pre-sentence 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”). Finally, Appellant does not dispute the open nature of his plea.
As described above, Appellant was advised repeatedly that his sentence
could range from the mandatory 3 year minimum to the 10 year maximum.
He nonetheless claims that the trial court “defeated [his] expectation of
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receiving the three year mandatory but also gave [him] no credit for his
remorse and acceptance of responsibility.” Appellant’s Brief at 14. Any
expectation Appellant may have had of a 3 year minimum sentence has no
basis in the record. Moreover, the trial court did credit him for his
acceptance of responsibility when it ran his sentences concurrently rather
than consecutively. N.T., 3/7/16, at 39 (declining to run Appellant’s two
sentences consecutively “because I do believe that there has to be some
acknowledgment that [Appellant] has chosen to plead guilty, to plead guilty
open and to accept responsibility”). Accordingly, we discern no abuse of
sentencing discretion by the trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
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Com. v. Kritzar, R.
Combined Opinion