Com. v. Brolly, S. ( 2023 )

J-S13024-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANE BROLLY :
:
Appellant : No. 2720 EDA 2022
Appeal from the Judgment of Sentence Entered May 19, 2022
In the Court of Common Pleas of Bucks County
Criminal Division at CP-09-CR-0002526-2021
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED MAY 25, 2023
Shane Brolly (Appellant) appeals from the judgment of sentence
imposed after he pled guilty to eight counts of recklessly endangering another
person; five counts each of aggravated assault by vehicle while driving under
the influence (DUI), aggravated assault by vehicle, accidents involving death
or serious bodily injury; and one count each of DUI – general impairment, DUI
– highest rate of alcohol, driving at unsafe speed, reckless driving, and driving
within single lane.1 We affirm.
The trial court detailed the underlying facts as follows:
On March 27, 2021, Appellant[’s] string of reckless conduct
forever altered the lives of at least a dozen people. That day,
____________________________________________
* Former Justice specially assigned to the Superior Court.
1See 18 Pa.C.S.A. § 2705; 75 Pa.C.S.A. §§ 3735.1(a), 3732.1, 3742.1(a)(1),
3802(a)(1), 3802(c), 3361, 3736(a), 3309(1).
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Appellant borrowed his uncle’s red GMC truck (“GMC”) and picked
up his friend, Eoin Quinn (“Quinn”), with a plan to spend the
afternoon hitting golf balls at the Burlholme Golf Center (“Golf
Center”), 401 Cottman Avenue, Philadelphia, Pennsylvania. N.T.
1/06/2022, p. 27. On their way to the Golf Center, Appellant and
Quinn stopped at Madonna’s Beer Distributor in Montgomery
County, Pennsylvania and purchased two (2) 12-packs of seltzers.
Id. at 27. The young men drank their seltzers for a few hours at
the Golf Center. Id. at 27-28. Next, Appellant and Quinn [] drove
to a pub in Philadelphia, ate a meal, and consumed one Guinness
beer each. Id. at 28. After finishing their food, Appellant and
Quinn picked up a third friend, Matt Lawson (“Lawson”)[,] and
drove to Paddy Whacks Bar (“Paddy Whacks”), 9241 Roosevelt
Boulevard, Philadelphia, Pennsylvania. Id. at 28. At this point,
Appellant had been drinking alcohol for at least four (4) hours,
and Law Enforcement later discovered nineteen (19) empty
seltzer cans in the GMC’s backseat. Id. at 23-24.
On the way to Paddy Whacks, Appellant veered into the lane
next to him and side-swiped a vehicle traveling in the same
direction. Id. at 29. The two cars pulled over to the side of the
road and Appellant offered to pay the driver $100.00 if he agreed
not to report the accident. Id. This individual accepted the
payment and drove away. Id. Appellant, Quinn, and Lawson then
resumed their journey to Paddy Whacks, pulling up at
approximately 7:20 P.M. Id. Appellant had previously agreed to
put the GMC’s keys behind the bar when they arrived, but he
never did. Id. at 28. About two and a half (2.5) hours later, after
consuming another Guinness beer, several shots [of liquor],
mixed drinks, and one Corona beer, the bartender at Paddy
Whacks cut Appellant off and refused to serve him. Id. at 30.
This refusal agitated Appellant, and he was asked to leave. Id. at
31.
Throughout the evening, Tiffany Zaborowski
(“Zaborowski”), who did not know Appellant prior to this incident,
had watched Appellant struggle to walk, spill his drinks, and
attempt to start an altercation when he was told to leave [the
bar]. Id. As Appellant, Lawson, and Quinn exited the bar,
Zaborowski realized that Appellant planned to drive, and she
followed them outside. Id. A complete stranger before that night,
Zaborowski was so concerned about the danger of Appellant
driving in his current state that she begged him not to get behind
the wheel. Id. Lawson joined her, asking Appellant to spend the
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night at his house so he could drive home in the morning. Id. at
32. As their requests were ineffective, Zaborowski then pulled out
her cell phone and offered to call Appellant an Uber [rideshare
driver,] so [Appellant] could get to his destination safely. Id. at
31. Again, Appellant refused. Id. Even as Appellant climbed into
the GMC and started its engine, Zaborowski and Lawson stood
outside the front passenger door, pleading with him. Id. at 32.
They even tried to block Quinn from entering the GMC, begging
him not to get in, but Quinn bolted around them and hopped into
the backseat on the driver’s side. Id.
As Zaborowski pled with Appellant in the Paddy Whacks
parking lot, four (4) young women were concluding their first
evening of spring break with celebratory ice cream. Exhibit C-1.
Seventeen-year-old J.M., seventeen-year-old A.C., sixteen-year-
old T.D., and sixteen-year-old J.A. subsequently piled into J.A.’s
Mazda SUV (“Mazda”) and started their journey to T.D.’s home for
a sleepover. N.T. 01/06/2022, p. 22. The girls were singing in
unison to a song on the radio as they headed southbound on
Bridgetown Pike, Bucks County, Pennsylvania. Id. As they
traveled south, Appellant was driving northbound on Bridgetown
Pike. Id. at 23-24. Appellant drove up [behind] a Nissan Murano
(“Nissan”), occupied by Lyuobov Zagorodny, Kateryna Sulima,
and Pavlo Sulima, and decided to try and pass them. Id. at 23.
Meanwhile, Emily Lohin (“Emily”) and her husband Michael Lohin
(“Michael”) were sitting in the living room of their home on
Bridgetown Pike, winding down after a day at the aquarium with
their two children. Id. at 19. As this couple enjoyed their quiet
evening, Appellant accelerated and swerved the GMC into the
southbound lane of oncoming traffic to pass the Nissan. Id. at
23-24. At a speed of approximately seventy (70) miles per hour,
Appellant drove head on into the oncoming Mazda, stopping it
dead in its tracks. Id. at 34. Emily and Michael later recalled that
the force of the impact was so strong that its vibration shook the
walls of their home. Sentencing Exhibit C-2, p. 9. Crash
Reconstruction Expert Chief Steve Mawhinney (“Chief
Mawhinney”) was able to determine from the GMC’s event data
recorder that Appellant never hit the brake. N.T. 01/06/2022, p.
33. In fact, Appellant did not take his foot off the gas pedal until
one (1) second before he made impact, hitting the Mazda with
such force that it was violently thrown backward off the roadway,
where it rolled before reaching its final resting place. Id. at 34.
As the Mazda rolled, Appellant’s GMC shot skyward before
slamming directly atop the Nissan he had tried to pass.1 Id. at 24.
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[FN1 Fortunately, the three passengers in the Nissan were not
significantly harmed.]
Immediately after the crash, Emily and Michael heard
screams coming from the road. Sentencing Exhibit C-2, p. 9. The
couple opened their front door to see three (3) significantly
damaged vehicles strewn about. N.T. 01/06/2022, p. 19. Emily
called 911 to report the accident as Michael rushed to the scene
to assess the damage. Id. Michael saw the Mazda’s engine
engulfed in flames and he ran inside to retrieve his fire
extinguisher. Id. As he and his neighbor, Eli Bielawksy
(“Bielawksy”) put the fire out, they could hear cries from within
the Mazda intensify. Id. at 19, 22. Once they extinguished the
flames, Michael removed the Mazda’s sunroof and was
immediately met with outstretched arms as the girls grasped for
him. Id. at 20. Michael took off his shirt and used it as a barrier
to protect the girls from broken glass. Id. He then removed J.M.
from the rear passenger’s seat, her face completely covered in
blood. Id. Next, Michael pulled A.C. up and out of the rear
driver’s seat. Id. At this point, emergency personnel had arrived
on the scene, and they helped [Michael] remove T.D. from the
front passenger seat. Id. at 21. J.A. was still trapped inside with
only eight (8) inches between her legs and the steering wheel, as
the force of the impact had pushed the engine compartment into
the Mazda’s interior. Id. Hanging upside-down, J.A. screamed
for help as she fought to stay awake. Id. Officer Timothy Friel
(“Officer Friel”) of Northampton Township Police Department held
J.A.’s hand as emergency personnel worked to free her, feeling
her grip loosen each time she lost consciousness. Id. Emergency
personnel had to completely remove the Mazda’s roof in order to
retrieve her, at which point she was flown by helicopter to Temple
University Hospital, 3401 N. Broad Street, Philadelphia,
Pennsylvania (“TU Hospital”) for emergency surgery. Id. at 21-
22, 37.
As a throng of workers did what they could for the girls,
Michael observed [Appellant and Quinn] laying shirtless on their
backs near the scene of the accident. Id. at 22. As he
approached, Michael could smell the odor of alcohol emanating
from them, even from a distance. Id. Officer Friel also later
reported that he detected an odor of alcohol on Appellant’s breath.
Id. Appellant was transported to St. Mary Medical Center, 1201
Langhorne Newtown Road, Langhorne, Bucks County,
Pennsylvania (“St. Mary’s”) for medical treatment, where hospital
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staff took numerous vials of blood and sent them to a lab for
testing. Id. at 25. Law Enforcement obtained Appellant’s
toxicology report pursuant to a search warrant, which indicated
that Appellant had a Blood Alcohol Concentration (“BAC”) of .211
g/100 mL. Id. at 26.
The young women in the Mazda [suffered] extensive and
life-threatening injuries. Id. J.A. suffered from a closed
mandibular jaw fracture and deep lacerations to her face, cheek,
and lip. Id. at 37. She had an open right femoral shaft fracture,
an open right patella fracture, an upper rib fracture, a left wrist
fracture, ligamentous injuries to her left knee, PCL and LCL
injuries, and significant bruising to her extremities. Id. at 37-38.
Upon [J.A.’s] admission to TU Hospital, her medical team had to
employ nasal intubation to help her breathe. Id. at 37. J.A.’s jaw
fracture was surgically closed using screws, plates, and arch bars,
and she had to have a second surgery in April of 2021 to remove
the bars. Id. In December of 2021[, J.A.] underwent a third
surgery, a bone graft, to treat her right femoral shaft fracture that
had not properly healed. Id. J.A. suffered permanent scarring to
her face, left hand, right leg, pelvis, and hip. Id. at 38.
T.D., who was seated in the front passenger seat at the time
of the accident, was transported to Thomas Jefferson Hospital,
1200 Old York Road, Abbington, Bucks County, Pennsylvania
(“Thomas Jefferson”) for treatment of her injuries. She suffered
from multiple blunt trauma injuries with lacerations to her lower
abdomen, groin, and face. Id. at 38-39. She had a gross
deformity and closed fracture of the left humorous bone in her
arm and a closed fracture of the left femur, which required surgery
and placement of pins and rods. Id. at 39. T.D. also suffered
from a ten-centimeter laceration over her left knee with exposed
bone, a fractured left ankle, a bowel perforation which required
abdominal surgery, and a small bowel resection. Id.
J.M., seated in the rear passenger’s side of the vehicle at
the time of the crash, was transported to St. Mary’s for treatment.
Id. at 39. Upon arrival, her doctors intubated her using a tracheal
tube and connected her to a ventilator so she could breathe. Id.
at 40. J.M.’s injuries included a concussion, edema of the thoracic
spinal cord, multiple fractured ribs, a fractured nasal bone, a
fractured right side orbital bone, a traumatic brain injury, multiple
lacerations on her head, shoulder, neck, and face, multiple
abrasions, numerous contusions, and three fractured vertebrae
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(T6, T7, and T8), which required surgical repair via laminectomy
and fusion. Id. at 39-40. Her face is permanently scarred. Id.
at 41. A.C., seated in the back seat of the driver’s side, was
transported to St. Mary’s to receive treatment for a traumatic
brain injury, a nasal bone fracture, broken thumb, fractured right
forearm, a vitreous detachment in her right eye, multiple
contusions, and a lacerated spleen. Id. Quinn was also
significantly injured in the crash. He was treated at Thomas
Jefferson for a traumatic abdominal hernia, left apical
pneumothorax, a perforated bowel, and a lacerated colon. Id.
Trial Court Opinion, 12/7/22, at 1-6 (footnote 1 in original, remaining
footnotes omitted).
The Commonwealth charged Appellant with numerous crimes. On
January 6, 2022, Appellant entered the aforementioned guilty plea. The trial
court ordered the preparation of a pre-sentence investigation report (PSI).
On May 19, 2022, the trial court sentenced Appellant, within the
standard range of the sentencing guidelines, to an aggregate 15 years and
3 days — 30 years and 6 months in prison. The sentence was less than the
sentence recommended in Appellant’s PSI. Notably, the trial court ordered
the sentences for five of the aggravated assault convictions to run
consecutively.
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Appellant timely filed a post-trial motion for reconsideration of sentence
on May 26, 2022.2 The trial court held a hearing on September 29, 2022, and
thereafter denied the motion. Appellant timely appealed.3
Appellant presents a single issue for review: “Did the lower court err in
imposing a sentence of total confinement of not less than fifteen years and
three days nor more than thirty years and six months?” Appellant’s Brief at
4.
Appellant challenges the discretionary aspects of his sentence, from
which there is no absolute right to appeal. Commonwealth v. Summers,
245 A.3d 686, 691 (Pa. Super. 2021). Here, where Appellant has preserved
his sentencing challenge in a timely post-sentence motion, he must (1) include
in his appellate brief a Pa.R.A.P. 2119(f) concise statement of reasons relied
upon for allowance of appeal; and (2) show that there is a substantial question
that the sentence is not appropriate under the Sentencing Code. Id.____________________________________________
2 Appellant’s motion for reconsideration consisted of a single sentence. See
Pa.R.Crim.P. 720(B)(1)(a) (providing all post-sentence “requests for relief
from the trial court shall be stated with specificity and particularity….”); see
also Commonwealth v. Holmes, 461 A.2d 1268, 1273 (Pa. 1983)
(explaining specificity requirement). The trial court overlooked this defect.
3Appellant purports to appeal from the trial court’s September 29, 2022 order
denying his post-sentence motion. However, “[i]n a criminal action, [an]
appeal properly lies from the judgment of sentence made final by the denial
of post-sentence motions.” Commonwealth v. Jackson, 283 A.3d 814, 816
n.1 (Pa. Super. 2022) (quoting Commonwealth v. Shamberger, 788 A.2d
408, 410 n.2 (Pa. Super. 2011) (en banc)).
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Appellant has included a Rule 2119(f) statement in his brief. Appellant’s
Brief at 15-16. Further, he presents a substantial question. See
Commonwealth v. Knox, 165 A.3d 925, 929-30 (Pa. Super. 2017) (“A claim
that the trial court focused exclusively on the seriousness of the crime while
ignoring other, mitigating circumstances … raises a substantial question.”);
see also Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013)
(same). Also, under the circumstances of this case, we conclude Appellant’s
claim that the imposition of consecutive sentences resulted in an unreasonable
and unduly harsh aggregate sentence raises a substantial question.
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en
banc) (“an excessive sentence claim—in conjunction with an assertion that
the [trial] court failed to consider mitigating factors—raises a substantial
question.”); Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa. Super.
2016) (same); cf. Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.
Super. 2013) (“a bald claim of excessiveness due to the consecutive nature of
a sentence will not raise a substantial question.”). Accordingly, we review the
merits of Appellant’s sentencing issue.
We are mindful that 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.” Commonwealth v. Barnes,
167 A.3d 110, 122 n.9 (Pa. Super. 2017) (en banc) (citation omitted).
In this context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
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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.
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation
omitted).
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted).
The Pennsylvania Supreme Court has explained:
The reason for this broad discretion and deferential standard of
appellate review is that the sentencing court is in the best position
to measure various factors and determine the proper penalty for
a particular offense based upon an evaluation of the individual
circumstances before it. Simply stated, the sentencing court
sentences flesh-and-blood defendants and the nuances of
sentencing decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing court
enjoys an institutional advantage to appellate review, bringing to
its decisions an expertise, experience, and judgment that should
not be lightly disturbed.
Commonwealth v. Pasture, 107 A.3d 21, 27-29 (Pa. 2014) (citations and
quotation marks omitted).
The Sentencing Code provides 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. §
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9721(b). “A sentencing court has broad discretion in choosing the range of
permissible confinements that best suits a particular defendant and the
circumstances surrounding his crime.” Commonwealth v. Celestin, 825
A.2d 670, 676 (Pa. Super. 2003) (citation omitted). The court “need not
undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a whole must
reflect the sentencing court’s consideration of the facts of the crime and
character of the offender.” Commonwealth v. Schutzues, 54 A.3d 86, 99
(Pa. Super. 2012) (citation omitted).
The trial court must also consider the sentencing guidelines. See
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008). Here, it
is undisputed that the sentences for each conviction were within the standard
range of the sentencing guidelines. See Appellant’s Brief at 18, 22;
Commonwealth Brief at 14-15. Therefore, we may only disturb Appellant’s
sentence if “the case involves circumstances where the application of the
guidelines would be clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2); see
also Commonwealth v. Raven, 97 A.3d 1244, 1254 (Pa. Super. 2014).
Appellant claims the trial court abused its discretion in imposing a
manifestly excessive and unreasonable aggregate sentence and failed to
consider mitigating factors. See Appellant’s Brief at 17-24. Appellant asserts
that although the sentences were within the standard range, the trial court
abused its discretion in imposing five of his sentences consecutively:
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[T]he sentencing guidelines for each of the five aggravated
assaults, in the standard range[,] recommended a sentence of
thirty-six to fifty-four months of incarceration.
The five consecutive sentences, resulting in a period of
incarceration of fifteen years to thirty years was excessive,
considering Appellant’s remorse, guilty plea, immediate
acknowledgement of guilt, lack of a criminal record, strong
character references, prison conduct, mitigating evidence and
family support.
Id. at 18-19 (citations to reproduced record omitted). Appellant contends the
trial court failed to consider many mitigating factors, including the expert
psychological evaluation of Appellant, id. at 19; Appellant’s history and
diagnosis of “severe alcohol disorder, in sustained remission,” id. at 20;
Appellant’s character references, id.; and Appellant’s remorse and allocution,
id. at 21.
Conversely, the Commonwealth claims the trial court “explicitly
considered all mitigating factors and the sentence imposed reflected the[
court’s] consideration [of all mitigating factors].” Commonwealth Brief at 16-
17. The Commonwealth argues:
[T]o the extent [Appellant] argues that the court erred in imposing
consecutive sentences for each victim, this claim is [] meritless.
It has long been the law in this Commonwealth that a defendant
is not entitled to a volume discount and that such a challenge does
not even raise a substantial question — let alone a meritorious
claim. Commonwealth v. Gonzalez-DeJesus, 994 A.2d 595,
599 (Pa. Super. 2010) (“Thus, in seeking a reduction of his
sentence, appellant appears to seek a “volume discount” because
the various crimes occurred in one continuous spree. This is
simply not a challenge which has the ring of raising a substantial
question.”). [Appellant’s] abhorrent conduct in continuing to drive
while exceedingly intoxicated, following a prior accident and the
repeated[] pleas of his friends to choose an alternative means of
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transportation, resulted in serious and unfathomable injuries to
numerous people.
It was certainly not an abuse of discretion to impose
separate sentences to account for each of the lives he changed
forever. Moreover, the sentencing court declined to impose
sentence on numerous remaining counts which did not merge for
purposes of sentencing.
Commonwealth Brief at 17.
Upon review, we are persuaded by the trial court’s reasoning:
[Appellant’s] sentence imposed is within the standard range
of [the] guidelines. Further, it is less than his PSI’s recommended
term of incarceration, which proposed an aggregate sentence,
within the aggravated range of [the] guidelines, amounting to
not less than twenty-seven and a half (27.5) nor more than fifty-
five (55) years’ incarceration. 09/29/2022, p. 19. Instead, this
court imposed an aggregate sentence of no less than fifteen (15)
years and three (3) days[] nor more than thirty (30) years and
six (6) months’ incarceration in a state correctional facility. N.T.
05/19/2022, pp. 38-40.
In fashioning Appellant’s sentence, this court
considered mitigating factors. As to Appellant’s character, this
court contemplated Appellant’s exemplary conduct while
incarcerated at the Bucks County Correctional Facility (“BCCF”),
his participation in substance abuse-related programming at
BCCF, and the letters submitted by Appellant’s family and friends,
which described him as kind and hardworking. Id. at 33. These
factors contributed to this court’s decision to hand down a
lesser sentence than that which was recommended by
Appellant’s PSI.
First, this court considered the facts of the case. Id. at 35.
Appellant argued in his motion to reconsider that one (1) solitary
action resulted in injuring five (5) individuals. This court
vehemently disagrees. Beginning with a trip to the driving range
at 3:00 P.M., Appellant committed numerous acts that led him to
drive head-on into that Mazda without so much as tapping the
brake pedal. Appellant intentionally chose to drink numerous
seltzers at the driving range. He then chose to have a Guinness
at a bar in Philadelphia. He next chose to payoff a man he
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sideswiped on the way to Paddy Whacks so he could continue his
night out. He subsequently opted not to put his keys behind the
bar at Paddy Whacks, as he said he would, and instead drank
numerous shots, mixed drinks, and beers while maintaining his
plan to drive. Lastly, he chose to get behind the wheel of the
GMC, which he did not own and did not have the legal authority
to drive, after the bartender refused to serve him further.
Appellant knew his conduct was dangerous. At the very
least, Zaborowski, a stranger, told Appellant drunk driving was
not worth it. There are seldom times in an individual’s life where
he has the opportunity to reflect on his options before making [a]
terrible [] decision. Hitting a vehicle on the way to Paddy Whacks,
Zaborowski intervening and offering to order an Uber, and Lawson
inviting Appellant to sleep at his home for the night, those
moments should have given Appellant pause, as each were
chances to reconsider. Yet, despite the numerous opportunities
afforded to Appellant to opt out of driving, he disregarded each
one. Appellant’s conduct on March 27, 2021 was abhorrent. As
such, this court’s sentence was carefully constructed in
consideration of every intentional decision Appellant made that
night.
Second, this court considered the long-lasting harm
Appellant’s actions caused the victims. Quinn still struggles with
his injuries - he reported in his impact statement that he continues
to suffer physical pain and feels anxiety as a passenger in a
vehicle. Sentencing Exhibit C-2, p. 38. The individuals in the
Nissan that Appellant tried to pass are also victims of this crime -
they were lucky they did not suffer extensive harm, but their
vehicle was damaged. However, the most significant impact was
on those four (4) young women. They have permanent scars,
continue to cope with the pain from their injuries, and still suffer
from symptoms of anxiety, depression, and post-traumatic stress
disorder. Appellant’s conduct further cost these women the time
they lost to the recovery process. These teenagers missed
months of school and could not participate in formative moments,
such as junior prom or the annual powderpuff game, due to the
severity of their injuries.
Their families also bear the weight of Appellant’s actions.
J.M.’s mother missed months of work so she could tend to her
daughter. Id. at 30-31. J.A.’s sister and A.M.’s brother have
struggled with watching their siblings’ labored recovery. Id. at
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27, 36-37. A.M.’s mother watched her daughter temporarily lose
her will to live, and she continues to feel helpless in the face of
A.M.’s continued mental health struggles. Id. at 36-37. Each
family has watched their girls transform overnight, from healthy
young women to women with life-altering injuries.
Third, this court considered the impact on the community,
as Appellant’s harm reached beyond the five (5) individuals that
were hospitalized that night. For example, Emily and Michael,
whose heroic actions saved the lives of those four (4) girls, both
suffer from panic attacks and generalized anxiety linked to the
traumatic nature of the crash. Id. at 9-10. Additionally, their two
children are now seeing a counselor, in part to cope with seeing
their parents return home that night covered in the girls’ blood.
Id. This incident has left an imprint on their lives such that the
couple is considering selling their home to avoid a reminder of the
accident every time they leave their driveway. Id.
This sentence, which was within the standard range
of the sentencing guidelines, balanced these impacts with
Appellant’s rehabilitative needs. This period of incarceration
will provide Appellant sufficient time to reflect on the gravity of
his conduct and to appreciate its long-lasing consequences.
Appellant has demonstrated an ability to disregard numerous
opportunities to make the right decision, and this court handed
down his sentence in hopes that he takes this chance to learn from
his mistakes and take full responsibility for his actions. Moreover,
this court could have handed down separate sentences for the two
counts that did not merge, aggravated assault while DUI, 75
Pa.C.S. § 3735.1(a), as well as accident while not properly
licensed, 75 Pa.C.S. § 3742.1(a)(1), and opted not to. N.T.
09/29/2022, pp. 15-16. Had this court sentenced Appellant to
consecutive terms of incarceration on those counts, Appellant’s
aggregate sentence would have remained in the standard range
… and nonetheless would have amounted to roughly twenty-two
and a half (22.5) to forty-five (45) years’ incarceration. Id. at 21.
For these reasons, Appellant’s sentence was appropriately
in the standard range for aggravated assault - causes injury with
extreme indifference and for DUI. This sentence did not violate
any sentencing statutes and was not contrary to the fundamental
norms of the sentencing process. Therefore, this court was well
within its discretion to fashion Appellant’s sentence and this
appeal should be denied.
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Trial Court Opinion, 12/7/22, at 11-14 (emphasis added; some capitalization
and citations altered).
The trial court’s reasoning has ample support in the record and law. See
id. We further note that where the court has the benefit of a PSI, “it will be
presumed that [it] was aware of the relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Conklin, 275 A.3d 1087, 1098 (Pa.
Super. 2022) (citation omitted). “[W]here the court has been so informed,
its discretion should not be disturbed.” Commonwealth v. Ventura, 975
A.2d 1128, 1135 (Pa. Super. 2009); see also Commonwealth v. Fowler,
893 A.2d 758, 767 (Pa. Super. 2006) (“The sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed on the record by
indicating that he or she has been informed by the pre-sentencing report; thus
properly considering and weighing all relevant factors.” (citation omitted)).
In sum, we discern no abuse of the trial court’s sentencing discretion.
Contrary to Appellant’s claim, his sentence is neither excessive nor
unreasonable, and the court did not abuse its discretion in imposing some of
the sentences consecutively. See Commonwealth v. Johnson, 873 A.2d
704, 709 fn.2 (Pa. Super. 2005) (stating that imposition of consecutive
sentences for two DUI offenses was solely within the trial court’s discretion,
and did not in and of itself rise to the level of a substantial question where
appellant’s “offense was more reprehensible than a ‘typical’ DUI offense.”);
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J-S13024-23
Moury, 992 A.2d at 171 (stating “where a sentence is within the standard
range of the guidelines, Pennsylvania law views the sentence as appropriate
under the Sentencing Code.”); Commonwealth v. Zirkle, 107 A.3d 127, 133
(Pa. Super. 2014) (defendants are not entitled to a “‘volume discount’ for
[their] crimes by having all sentences run concurrently.” (citation omitted)).
Appellant’s aggregate sentence is neither “grossly disparate to [Appellant’s]
conduct nor does it viscerally appear as patently ‘unreasonable.’”
Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010)
(citation and quotation marks omitted). Consequently, we will not disturb
Appellant’s sentence. See Barnes, supra.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2023
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