Com. v. Markus, E. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERICA MARKUS :
:
Appellant : No. 1448 WDA 2021
Appeal from the Judgment of Sentence Entered October 18, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000317-2021
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: September 30, 2022
Erica Markus (Markus) appeals from the October 18, 20211 judgment of
sentence imposed by the Court of Common Pleas of Allegheny County (trial
court) following her guilty pleas to three counts each of aggravated assault by
vehicle while DUI, aggravated assault by vehicle and recklessly endangering
another person and one count each of DUI: controlled substance, DUI:
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* Retired Senior Judge assigned to the Superior Court.
1 Markus was initially sentenced on October 14, 2021. Thereafter, the trial
court held a resentencing proceeding sua sponte to clarify its intention to
impose the sentences for each count of aggravated assault by vehicle while
DUI consecutively rather than concurrently. For reasons unclear from the
record, the corrected sentencing order was not docketed until November 30,
2021. Markus’s post-sentence motion was timely filed from the October 18,
2021 resentencing date and her notice of appeal was timely filed after the
denial of that motion. See Pa.R.Crim.P. 720(A).
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controlled substance—impaired ability, possession of a controlled substance,
possession of drug paraphernalia and related vehicle violations.2 Markus
challenges the discretionary aspects of her sentence. We affirm.
We glean the following facts from the certified record. On June 20,
2020, Markus drove her vehicle at a high speed into Kelly Bundridge
(Bundridge), William Bernard (Bernard) and Adam Flam (Flam), who were
standing by their vehicles on the side of the road. Stamp bags were recovered
from Markus’s vehicle and she tested positive for fentanyl on a blood test.
Markus entered an open guilty plea to the above-mentioned offenses.
Following her plea, the Commonwealth presented several victim impact
statements. A friend of Bundridge, Kweinlin Mercurio (Mercurio), testified that
Bundridge was a business owner with extensive support from family and
friends in the neighborhood. Following the accident, she was hospitalized for
an extended period and underwent numerous surgeries and procedures to
treat her injuries. Mercurio expressed her dismay that Markus had been living
in a rehabilitation center following the accident and was not incarcerated. She
requested the maximum prison sentence.
Kelvyonna Bundridge (Kelvyonna), Bundridge’s daughter, testified that
her mother had always been a hard worker and had provided for her family
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2 75 Pa.C.S. §§ 3735.1(A) & 3732.1(A); 18 Pa.C.S. § 2705; 75 Pa.C.S.
§§ 3802(D)(1) & (2); 35 P.S. §§ 780-113(a)(16) & (32); 75 Pa.C.S.
§§ 3736(A), 3714(A) & 3362(A)(3).
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before the accident. They had been preparing for a Father’s Day cookout with
the family when the accident occurred and Kelvyonna waited with her mother
for the ambulance. She explained the trauma of witnessing her mother’s
injuries and the toll on her family as they struggled to adjust to running the
household and caring for Bundridge through multiple surgeries.
Tanya Anthony (Anthony), Bundridge’s older sister, testified that
Bundridge had lost her legs in the accident and needed to relearn how to
complete basic daily tasks. She was unable to attend her son’s high school
graduation and he had to postpone entering college to help care for her. Her
father3 was in a coma for several months after the accident and needed to
relearn how to walk and complete other tasks. He suffered from a broken
tailbone and shoulder blade. Anthony testified that the entire family had
suffered because of the accident and struggled seeing Markus in the
community afterwards. She requested a lengthy prison sentence.
Finally, the Commonwealth read a letter authored by Bundridge into the
record. She stated that she continued to experience chronic and severe pain
and had to put her businesses on hold as she focused on relearning to walk.
She expressed anger at losing her independence and that her children and
family members had to witness the accident and see her and her father suffer.
____________________________________________
3 Anthony did not identify her father by name but she and Bundridge both
referenced their father as one of the other victims in the accident.
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They continued to experience stress and anxiety. She also requested a
lengthy prison sentence.
The trial court accepted Markus’s guilty plea and deferred sentencing for
the preparation of a presentence investigation report (PSI). At sentencing,
Markus presented the testimony of Mattie Tunney (Tunney), an assistant
house manager at a three-quarter house. Tunney met Markus at Power
Halfway House (Power) in October 2020 after the accident. Tunney had
suffered strokes and at that time was struggling to walk. She testified that
Markus patiently worked with her on building strength and practicing walking
until she was able to walk up hills on her own. She said that Markus had
always cared about others and was dedicated to self-growth. Markus had
been voted by 25 women at Power as a facilitator in the house, which was a
leadership position. Tunney testified that Markus continued to serve as a good
example to other residents at the three-quarter house and helped other
residents who were struggling.
Markus also presented a letter from Danielle Livingston, the owner of
the three-quarter house. She stated that Markus had lived there since April
2021 and had followed all the rules of the house, passed all drug testing and
become a role model for other residents. She said that she was impressed
with Markus’s progress and dedication to recovery.
Mercurio testified again at sentencing and read substantially the same
impact statement as she gave at the guilty plea hearing. Sheena Lamb
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(Lamb), Bundridge’s sister, also testified that Bundridge had always been a
strong person and helped her family when they were struggling. She testified
that it was traumatizing to see her father and Bundridge in the hospital after
the accident. She expressed anger at Markus and said that she had ruined
her family’s life.
Markus read her own statement into the record and expressed remorse
for how she had impacted the victims and their families. She said the accident
had changed her mindset because she had previously believed that her drug
and alcohol use only affected her. She said she considered suicide knowing
the effect she had had on the victims and she voluntarily entered treatment
to address her addiction. Treatment allowed her to see how her addictions
hurt the people around her and she had committed to changing her life. She
apologized to the victims and reiterated her commitment to sobriety.
Before imposing the sentence, the trial court noted that while Markus
did not intentionally hit the victims with her vehicle, she did choose to use
heroin before driving without considering the consequences to the people
around her. It explained that her actions impacted not only the victims, but
their friends, family and larger community. It then sentenced Markus to 18
to 36 months’ incarceration followed by five years of probation for each count
of aggravated assault by vehicle while DUI. For the count of DUI: controlled
substance, it sentenced her to 72 hours’ incarceration and five months of
probation. The trial court stated at the sentencing hearing that the sentences
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of incarceration for the counts of aggravated assault by vehicle while DUI were
imposed concurrently. However, the written sentencing order docketed after
the hearing indicated that these periods of incarceration were to be served
consecutively, for an aggregate sentence of 4.5 to 9 years of incarceration
followed by 5 years of probation. See Sentencing Order, 10/14/21, at 3.
On October 18, 2021, the trial court reconvened the case sua sponte
and said “it was brought to my attention that some people had some confusion
as to what the sentence was that I imposed on October 14. I have no such
confusion, and I will repeat it again.” N.T., 10/18/21, at 2. It explained that
the sentences of incarceration for aggravated assault by vehicle while DUI
were consecutive rather than concurrent, which was its original intention in
imposing the sentence.
The trial court then allowed Markus to read additional sentencing
statements by her mother, brother and son into the record. The three
statements opined that Markus was sincerely remorseful for her actions and
dedicated to her sobriety, having attended several rehabilitation programs
after the accident. They requested the trial court take Markus’s progress into
account when crafting her sentence. Markus placed these statements on the
record but did not request the trial court to reconsider its sentence at that
time.
She then filed a timely post-sentence motion seeking reconsideration of
her sentence. She argued that at 49 years of age, she had no prior criminal
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history and had been law-abiding until she started using drugs approximately
one year before the accident. She had attended inpatient treatment for her
addiction followed by two stints in sober-living facilities, totaling 16 months of
treatment, and had remained sober since the accident. She argued that she
had taken responsibility for her actions by entering the open guilty plea and
requested that the trial court amend the sentence to impose the periods of
incarceration concurrently.
The trial court denied the motion and Markus timely appealed. She and
the trial court have complied with Pa. R.A.P. 1925.4 On appeal, Markus
challenges the discretionary aspects of her sentence. She argues that the trial
court abused its discretion by resentencing her to serve the periods of
incarceration consecutively without consideration of her character and
rehabilitative needs, resulting in a manifestly excessive and unreasonable
sentence.5
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4 Markus was sentenced by the Honorable David Cashman. Following his
retirement, the case was reassigned to the Honorable Elliot C. Howsie, Jr.,
who authored the Pa. R.A.P. 1925(a) opinion.
5
Our standard of review 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 error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
(Footnote Continued Next Page)
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“The right to appellate review of the discretionary aspects of a sentence
is not absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation
omitted). An appellant must preserve her claims at the time of sentencing or
in a post-sentence motion, file a timely notice of appeal, include a statement
of reasons for allowance of appeal pursuant to Pa. R.A.P. 2119(f) in her brief,
and raise a substantial question for review. Id. Here, Markus filed a timely
post-sentence motion and notice of appeal and has included a statement
pursuant to Pa. R.A.P. 2119(f) in her brief. Thus, we consider whether she
has raised a substantial question.
“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.”
Commonwealth v. Clarke, 70 A.3d 1281, 1286–87 (Pa. Super. 2013)
(citation omitted). Markus contends that the trial court imposed a manifestly
excessive and disproportionate sentence without considering mitigating
factors, such as her lack of criminal history, progress in various treatment
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judgment for reasons of partiality, prejudice, bias[,] or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Wallace, 244 A.3d 1261, 1278–79 (Pa. Super. 2021)
(citation omitted).
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programs and commitment to sobriety. This claim presents a substantial
question for our review. Commonwealth v. DiClaudio, 210 A.3d 1070,
1075-76 (Pa. Super. 2019) (citations omitted); see also 42 Pa.C.S.
§ 9721(b). Accordingly, we proceed to the merits.6
Here, the sentencing guidelines recommended a minimum sentence of
12 to 24 months’ incarceration for the counts of aggravated assault by vehicle
while DUI. Markus’s sentences of 18 to 36 months’ incarceration then fell in
the middle of the standard range of the guidelines for each count. When
reviewing the discretionary aspects of a sentence that falls within the
sentencing guidelines, we must affirm unless the “application of the guidelines
would be clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2). In assessing the
reasonableness of a sentence, we consider
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
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6Markus also argues that the trial court improperly relied on a factor already
accounted for in the sentencing guidelines, the seriousness of the offense,
when imposing the sentence. This claim was not included in her post-sentence
motion and is waived. Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.
Super. 2018); Pa. R.A.P. 302(a).
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When imposing a sentence, a trial court must ensure that the sentence
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. § 9721(b). “The court is
not required to parrot the words of the Sentencing Code, stating every factor
that must be considered under Section 9721(b). However, the record as a
whole must reflect due consideration by the court of the statutory
considerations [enunciated in that section].” Commonwealth v.
Coulverson, 34 A.3d 135, 145 (Pa. Super. 2011) (citations omitted). A
sentencing court is not required to impose the “minimum possible
confinement,” but rather must craft an individualized sentence after
considering “the particular circumstances of the offense and the character of
the defendant.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.
2010) (citations omitted). Finally, it is well-established that a defendant is
not entitled to a “volume discount” in the form of concurrent sentences for
multiple crimes. See Commonwealth v. Brown, 249 A.3d 1206, 1217 (Pa.
Super. 2021) (citation omitted).
Here, the trial court heard victim impact statements detailing the
profound impact of Markus’s actions on the lives of Bundridge and her family
and friends. Bundridge lost both of her legs, underwent numerous surgeries
and procedures over the course of the following year, and still required
extensive support from her family and friends in her day-to-day life. In her
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statement, Bundridge explained that she had missed her son’s graduation due
to her injuries and that her children were continuing to experience stress and
anxiety as a result of the accident. Her daughter, sisters and friend testified
that Bundridge had always been an active and loving member of the family
and a successful business owner, but her injuries had rendered her unable to
participate in her family and work life as she had previously. Bundridge’s
father, another victim of the accident, was hospitalized for several months in
a coma and had to relearn how to walk and perform daily tasks.
The trial court also heard from Markus’s witnesses and Markus herself
before imposing her sentence. Markus apologized for her actions and
expressed remorse for the impact she had on the victims and their families.
She voluntarily admitted herself into an inpatient treatment facility and
entered progressive sober living facilities in the 16 months following the
accident. Two individuals from Markus’s treatment programs offered
statements to the trial court detailing her success in the programs and positive
influence on other residents struggling with sobriety. She had remained sober
since the accident and was dedicated to maintaining her sobriety in the future.
Our review of the record reveals that the trial court did not abuse its
discretion in crafting Markus’s sentence. It heard and considered statements
from witnesses on both sides of the case and was entitled to weigh all evidence
and the circumstances of the offenses before imposing its sentence. We may
not disturb the trial court’s weighing of that evidence without a clear abuse of
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discretion. Wallace, supra. The trial court stated that it found Markus’s case
to be disturbing but acknowledged that, unlike many criminal cases, she had
not intentionally harmed the victims. It recognized that her crimes were
precipitated by her drug use but emphasized that she had intentionally used
narcotics before driving and did not consider the safety of those around her
when doing so. It commented that her actions had harmed and not only
altered the lives of the victims, but impacted their families, friends and larger
community. Under these circumstances, a sentence within the standard range
of the sentencing guidelines was not “clearly unreasonable.” 42 Pa.C.S.
§ 9781(c)(2). No relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2022
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