Com. v. Lineman, A.

• Court: Superior Court of Pennsylvania
• Decided: September 3, 2020
• Docket: 2542 EDA 2018
• Status: Unpublished

Opinion

J-S14007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANDREW LINEMAN : : Appellant : No. 2542 EDA 2018

Appeal from the Judgment of Sentence Entered June 25, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005249-2017

BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 3, 2020

Andrew Lineman appeals from his June 25, 2018 judgment of sentence

imposed after he pled guilty to charges of aggravated assault by vehicle while

driving under the influence (“DUI”), aggravated assault by vehicle, DUI:

controlled substance or metabolite, DUI: impaired ability, and intentional

possession of a controlled substance by a person not registered. We affirm.

On December 28, 2016, Appellant was speeding while driving along

North 2nd Street in Philadelphia, Pennsylvania, shortly after smoking

phenylcyclohexyl piperidine (“PCP”). Appellant drove through a red light, and

struck a pick-up truck driven by Jeffrey Scott (“the victim”), who suffered

traumatic brain injuries. When Philadelphia Police arrived on scene, an officer

observed Appellant climbing out of his vehicle with a bottle of vodka in his

hand. The officer spoke to Appellant, and immediately noticed his blood-shot J-S14007-20

eyes, slurred speech, and slowed movements. Appellant admitted he had

been drinking alcohol, and the officer also suspected that Appellant was under

the influence of additional intoxicants. The officer searched Appellant’s vehicle

and also discovered a pill bottle later determined to contain twenty-eight pills

of Alprazolam, a controlled substance for which Appellant had no prescription.

Appellant was transported to the hospital, where he confessed to

another officer that he had been smoking PCP just prior to the accident.

Appellant consented to a blood test, which confirmed the presence of PCP and

also indicated Appellant had been using marijuana. Appellant was arrested

and charged with, inter alia, the aforementioned offenses.

While Appellant was out on bail for these charges, he was arrested and

convicted of a violation of the Uniform Firearms Act (“VUFA”) in a separate

case, and was ultimately sentenced to three to seven years’ incarceration for

that offense. See Commonwealth v. Lineman, 219 A.3d 684, (Pa.Super.

2019), reversed at 2020 WL 4558563 (Pa. Aug. 7, 2020) (“Lineman”).

Appellant entered a non-negotiated guilty plea to the above-referenced DUI

charges. On June 25, 2018, the trial court imposed an aggregate sentence of

three to ten years of incarceration,1 set to run consecutively to the sentence

he was already serving in connection with his separate conviction in Lineman.

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1 Appellant was sentenced to three to ten years of incarceration in connection with his plea to aggravated assault while driving under the influence (“DUI”). He also received respective sentences of one to two years of incarceration in

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Appellant filed a timely post-sentence motion requesting reconsideration

of his sentence on the grounds that, inter alia, setting his sentence in this case

to run consecutive to his sentence in Lineman rendered the overall sentence

excessive. On July 24, 2018, the trial court denied his post-sentence motion,

and Appellant timely appealed. Both Appellant and trial court timely complied

with their obligations under Pa.R.A.P. 1925.

Appellant presents a single claim for our consideration:

Did the sentencing court err as a matter of law, abuse its discretion, and violate general sentencing principles when it sentenced defendant to 19-38 years’ incarceration; where this sentence was manifestly excessive and unreasonable; far surpassed what was required to protect the public, the complainants, and the community; went well beyond what is necessary to foster [Appellant]’s rehabilitation; and was grossly disproportionate to the crime?

Appellant’s brief at 1. In essence, Appellant challenges the trial court’s

discretionary imposition of a sentence set to run consecutively to his separate

sentence in Lineman.

Appellant’s claim is a challenge to the discretionary aspects of his

criminal sentence. We review such claims for an abuse of discretion. See

Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa.Super. 2010). “An

abuse of discretion may not be found merely because an appellate court might

connection with his pleas to aggravated assault by vehicle, DUI: controlled substance or metabolite, and DUI: impaired ability. All three of these sentences were set to run concurrently with his sentence for aggravated assault while DUI. Appellant received no further penalty in connection with the remaining possessory charge.

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have reached a different conclusion, but requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.” Id. at 170. “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.” Id.

At the outset, we note that “there is no absolute right to appeal when

challenging the discretionary aspect of a sentence.” Commonwealth v.

Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). Rather, an Appellant must

satisfy a four-part test by: (1) filing a timely notice of appeal; (2) preserving

the underlying issue at sentencing or in a post-sentence motion; (3) including

a concise statement pursuant to Pa.R.A.P. 2119(f) in his brief; and (4) raising

a substantial question that the sentence appealed from is not appropriate

under the Pennsylvania Sentencing Code. See Commonwealth v. Caldwell,

117 A.3d 763, 768 (Pa.Super. 2015). Instantly, Appellant has complied with

the first three of these technical requirements. Before we may consider the

merits of Appellant’s claims, however, we must determine whether he has

raised a “substantial” question.

An appellant presents a substantial question in this context by setting

forth a “plausible argument that the sentence violates a provision of the

sentencing code[,] or is contrary to the fundamental norms of the sentencing

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process.” Crump, supra at 1282. Merely alleging that a sentence is

excessive does not raise a substantial question. See Commonwealth v.

Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013).

Generally, the decision to sentence a defendant consecutively rather

than concurrently is within the discretion of the sentencing court. See, e.g.,

Commonwealth v. Ali, 197 A.3d 742, 765 (Pa.Super. 2018). A substantial

question as to consecutive sentences exists only if “the aggregate sentence is

unduly harsh, considering the nature of the crimes and the length of

imprisonment.” Commonwealth v. Caldwell, 117 A.3d 763, 771 (Pa.Super.

2015). Absent such excessiveness, this Court has routinely held that the mere

imposition of a criminal sentence set to run consecutively to a separate

criminal sentence does not raise a substantial question. See Commonwealth

v. Pass, 914 A.2d 442, 444 (Pa.Super. 2006) (recognizing “long-standing

precedent” that “affords the sentencing court discretion to impose its sentence

concurrently or consecutively to other sentences . . . already imposed”).

Appellant’s alleged substantial question concerns the trial court’s

imposition of a three-to-ten-year sentence set to run consecutively to the

separate three-to-seven-year sentence in Lineman. See Appellant’s brief at

12 (arguing that the sentence fashioned by the trial court “went far beyond

what is necessary to foster [Appellant’s] rehabilitation” and was “grossly

disproportionate to [his] crimes”). Overall, Appellant characterizes a potential

seventeen-year sentence as manifestly excessive. Id.

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As noted above, Appellant’s claim concerning the consecutive nature of

his sentence would not ordinarily raise a substantial question unless “the case

involved circumstances where the application of the guidelines would be

clearly unreasonable.” See Dodge, supra at 1270. This is not such a case.2

In its Rule 1925(a) opinion, the trial court stated that the sentence was

imposed after carefully considering all appropriate factors, including the

severity of the offense, the impact on the victim, appellant’s likelihood of

committing another crime, and the safety and protection of the community.

See Trial Court Opinion, 7/12/19, at 6-9. In particular, the trial court focused

2 Appellant has attempted to cast his case in the same light as the circumstances presented in Dodge. See Appellant’s brief at 13-15. In Dodge, a 42-year-old defendant was sentenced to an aggregate term of fifty- two and one-half years to 111 years of incarceration in connection with thirty- seven separate charges of receiving stolen pieces of costume jewelry. Id. at 1200, 1202. Our Supreme Court vacated the sentence as unreasonable and excessive, rejecting the notion of “imposing a life sentence for non-violent offenses with limited financial impact.” Id. at 1202.

Dodge is not an appropriate parallel to Appellant’s case. While Appellant’s crimes were not overtly violent, his actions had permanent, life-changing physical, financial, and emotional impacts upon the victim. In particular, the victim suffered a traumatic brain injury that has negatively affected his memory. The victim is perpetually numb on his right side, and has very limited use of his right-sided limbs. Consequently, he is unable to work or support his family. See N.T. Sentencing Hearing, 6/25/18, at 7.

Appellant’s arguments minimize these harrowing consequences, and insinuate that the trial court did not appropriately consider Appellant’s rehabilitative needs. However, the certified record belies Appellant’s arguments. The trial court fully considered Appellant’s protracted struggles with addiction in crafting his sentence. Id. at 7-8, 10-14.

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upon Appellant’s criminal record and history of substance abuse, coupled with

the injuries sustained by the victim:

Appellant’s criminal history consisting of a variety of drug possession and DUI charges for which he has not received any penalty demonstrates that he has not learned from his reckless actions. Despite being given break after break, he has not taken these opportunities to get his life together. Unfortunately, this time, Appellant’s dangerous and selfish decision to drive under the influence resulted in this traffic accident that has significantly changed the victim’s life forever.

Id. at 8. Moreover, the trial court correctly noted that the sentence was within

the applicable guidelines. In addressing Appellant’s claim concerning the

imposition of a consecutive sentence, the trial court averred that Appellant did

not raise a substantial question because the choice to impose a consecutive

sentence was well within its discretion in light of the circumstances of

Appellant’s offenses. We agree with the trial court’s assessment.

Our review of the certified record confirms that the sentencing court

properly considered Appellant’s situation, the relevant circumstances of his

offenses, all presentence investigations, and the precepts of the Sentencing

Code. Accord 42 Pa.C.S. § 9781(d)(1)-(4). The trial court stated on the

record that Appellant’s substance abuse history, his numerous prior DUI and

controlled substance convictions, and the serious injuries to the victim justified

the consecutive sentence. See N.T. Sentencing, 6/25/2018, at 7-8, 10-14.

In the trial court’s view, Appellant’s pattern of behavior posed an escalating

threat to his community. Id. at 13 (“[W]hat I’m concerned about is the

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[e]ffect it had on [the victim] and the fact that you had a number of

opportunities to deal with your problems and have not dealt with them.”).

In sum, Appellant has not advanced a colorable argument that the

imposition of a consecutive sentence was either inconsistent with a specific

provision of the Sentencing Code, or contrary to the fundamental norms

underlying the sentencing process.3 In view of the foregoing, we find that

Appellant has not raised a substantial question. Accord Pass, supra at 444.

Judgment of sentence affirmed.4/5

3 Due to the nature of our holding, we do not address the merits of Appellant’s claim concerning the consecutive nature of his sentence. However, on August 7, 2020, our Supreme Court entered a per curiam order in Commonwealth v. Lineman, 2020 WL 4558563 (Pa. Aug. 7, 2020), that reversed the judgment of this Court in Commonwealth v. Lineman, 219 A.3d 684 (Pa.Super. 2019) (collectively, “Lineman”). Assuming, arguendo, that Appellant’s claim presented a substantial question, the Supreme Court’s order renders his substantive sentencing argument moot since Appellant’s judgment of sentence in Lineman has been vacated and his conviction reversed.

4 On August 12, 2020, Appellant filed an application for a stay of proceedings, asserting that the Supreme Court’s per curiam order “may affect [Appellant’s] sentencing guidelines in this case, the legality of that sentence, and the arguments made by Counsel in its appellate brief[.]” Appellant’s Application for Stay of Proceedings, 8/12/20, at ¶ 7 (emphasis added). Critically, Appellant has provided no discussion or argument concerning how the reversal of Lineman will affect the legality of Appellant’s sentence in this separate case. Cf. Pa.R.A.P. 123 (requiring an application for relief to “state with particularity the grounds on which it is based”). Rather, Appellant has offered only the sheer possibility of future claims and issues that may arise. As such, we deny Appellant’s application for an open-ended stay of proceedings.

5 To the extent that the Supreme Court’s per curiam order in Lineman raises concerns regarding the validity of the sentencing guidelines in this case, we note that Appellant’s reversed conviction in Lineman was not included in

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/3/2020

thecalculation of Appellant’s prior record score. See 204 Pa. Code § 303.8(a)(1) (“In order for an offense to be considered in the Prior Record Score, both the commission of and conviction for the previous offense must occur before the commission of the current offense.” (emphasis added)). All of the events in Lineman took place after Appellant’s commission of the crimes in this case. Moreover, our review of the certified record confirms that Appellant’s conviction in Lineman was properly excluded from the calculation of his sentencing guidelines.

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