Com. v. Smith, C.

Opinion

J-S36004-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHARLES SMITH, : : Appellant : No. 2985 EDA 2022

Appeal from the Judgment of Sentence Entered August 19, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002341-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHARLES SMITH, : : Appellant : No. 2986 EDA 2022

Appeal from the Judgment of Sentence Entered August 19, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002342-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHARLES SMITH, : : Appellant : No. 2987 EDA 2022

Appeal from the Judgment of Sentence Entered August 19, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002343-2021

BEFORE: BOWES, J., NICHOLS, J., and KING, J. J-S36004-23

MEMORANDUM BY BOWES, J.: FILED OCTOBER 11, 2023

Charles Smith appeals nunc pro tunc from his aggregate judgment of

sentence of twenty to fifty years of imprisonment, followed by nineteen years

of probation, imposed after he was convicted of third-degree murder, third-

degree murder of an unborn child, driving under the influence (“DUI”),

homicide by vehicle while DUI, homicide by vehicle, aggravated assault by

vehicle, and recklessly endangering another person. We affirm.

The trial court offered the following summary of the evidence

underpinning Appellant’s convictions:

[O]n May 13, 2020, at approximately 9:40 p.m., Anthony O’Connor was driving his silver Nissan SUV on Whitaker Avenue, with his girlfriend, Kimberly Hartz in the passenger seat. They were expecting their first child—[Ms. Hartz] was five months pregnant. Appellant was driving his gold Acura on Whitaker Avenue as well, with his girlfriend, Sabrina Herbert, in the passenger seat. [Appellant] was smoking a PCP cigarette. Appellant started to drive faster, and Ms. Herbert told him to slow down. Instead, [Appellant] sped up even more. Appellant then started tailgating the car in front of him then, abruptly swerving into the next lane pas[t] that vehicle. [Appellant] struck the rear of [Mr.] O’Connor’s car with such force that [it] hit a series of parked cars, ending up with the passenger side of [Mr.] O’Connor’s vehicle wrapped around a PECO pole. [Appellant]’s vehicle spun out of control, stopping about a half block away. Mr. O’Connor died instantly. [Ms.] Hartz suffered a number of serious injuries, including the loss of her right leg, a fractured pelvis, fractures along her spine and face. Ms. Hartz’s uterus had to be removed as well.

Nicole Guinan, an off-duty police officer[,] was driving along Whitaker Avenue at the time of the crash. When she looked in her rear-view mirror, she saw [Appellant]’s gold Acura spinning out of control. Officer Guinan exited her vehicle to render assistance to the occupants of the gold Acura, helping [Appellant] out of the driver’s seat of the car. She noticed [Appellant]’s

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demeanor, the blank stare on his face, completely dazed, foaming at the mouth, huffing and puffing, agitated—so much so that she stepped away from him out of caution and fear. [Appellant] was walking around with his pants at his ankles. On-duty police officers arrived and placed him under arrest. The toxicology report of blood taken from the defendant that evening shows cocaine, marijuana and more than 80 nanograms of PCP in [A]ppellant’s blood. [Toxicology also revealed that Mr. O’Connor had fentanyl in his blood at his time of death. Nonetheless, a]n accident reconstructionist laid full blame for the accident upon [Appellant].

Trial Court Opinion, 1/5/23, at 3-4 (cleaned up).

Appellant was tried at the above-captioned docket numbers and

convicted on June 10, 2022. Following a presentence investigation (“PSI”)

and a psychiatric evaluation, the trial court sentenced him to the aggregate

term indicated above. Appellant’s timely post-sentence motions were denied

without a hearing on August 30, 2022. Appellant did not initially file an appeal,

but his direct appeal rights were promptly reinstated through a Post Conviction

Relief Act petition. These timely nunc pro tunc appeals at each docket number

followed, and both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents the following questions for our determination:

I. Whether . . . Appellant’s convictions are against the weight of the evidence where the accident was investigated inadequately by police officers not trained in homicide investigations, where the physical evidence demonstrated that the accident did not happen the way alleged by the Commonwealth, where the decedent driver was intoxicated with high levels of fentanyl and where the Appellant was not a direct cause of death when the actions of the decedent played an independent, important and overriding role in bringing about his own death, the death of the unborn child and the serious injury to his passenger?

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II. Whether the court abused its discretion at sentencing when it sentenced. . . Appellant to an aggregate sentence of 20- 50 years plus 19 years of probation and where the court failed to give the proper weight to the mitigating factors set forth in the pre-sentence investigation report, the mental health evaluation and by . . . Appellant’s allocution at the sentencing hearing?

Appellant’s brief at 6 (cleaned up).

Appellant first contends that the verdicts are against the weight of the

evidence. The following law applies to our consideration of that claim:

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. 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. Rather, the role of the trial judge is to determine that notwithstanding all the facts, 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.

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.

Commonwealth v. Arias, 286 A.3d 341, 352 (Pa.Super. 2022) (cleaned up).

Accordingly, our task is to determine whether the trial court, in ruling on

Appellant’s weight challenge, “abused its discretion by reaching a manifestly

unreasonable judgment, misapplying the law, or basing its decision on

partiality, prejudice, bias, or ill-will.” Commonwealth v. Clay, 64 A.3d 1049,

1056 (Pa. 2013) (cleaned up).

The trial court explained its rejection of Appellant’s weight claim as

follows:

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Appellant contends that the decedent’s ingestion of fentanyl was the direct cause of his death. The problem with his contention is there is not a scintilla of evidence to substantiate this claim. The decedent was driving northbound on Whitaker Avenue, when the speeding, inebriated [Appellant] came up from behind and struck the decedent’s car from the rear. Nothing the decedent did caused the accident, nor his death or that of his unborn child. This court applied the appropriate standards when reviewing [Appellant]’s claim that the verdict was against the weight of the evidence. Having reviewed the entire record, including a thorough reading of the trial transcripts and admitted exhibits, this court concludes that the verdict was not so contrary to the evidence as to shock one’s sense of justice, nor was it so tenuous, vague and uncertain that it shocks the conscience of the court. To the contrary, the evidence in this case was compelling and substantial, and strongly supported the verdict.

Trial Court Opinion, 1/5/23, at 13-14.

Appellant argues that the verdict is shocking “for a variety of reasons.”

Appellant’s brief at 18. He highlights what he perceives as inadequacies in

the investigation of the crime, avers that “the crash did not happen as the

Commonwealth alleged,” and proffers an alternate accident reconstruction in

which Mr. O’Connor, under the influence of fentanyl, initiated the collision. Id.

at 19. Appellant further asserts that the Commonwealth’s expert failed to

relate Appellant’s intoxication, confirmed by a blood draw hours after the

accident, back to the time of the collision. Id. Overall, Appellant’s argument

is that “[t]he verdict is shocking because the jury disregarded evidence that

the decedent’s intoxication and recklessness were the actual cause[s] of the

crash, and not that of . . . Appellant.” Id.

Our examination of the certified record reveals that the trial court did

not deny Appellant’s weight claim by “reaching a manifestly unreasonable

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judgment, misapplying the law, or basing its decision on partiality, prejudice,

bias, or ill-will.” Clay, supra at 1056. Rather, Appellant asks this Court to

make different credibility determinations and weigh the evidence more

favorably to him than the jury did, which is in contravention of our standard

of review. Consequently, Appellant’s weight claim fails.

Appellant remaining challenge is to the discretionary aspects of his

sentence. Initially, the following legal principles govern our consideration of

this claim:

An appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction. We determine whether the appellant has invoked our jurisdiction by considering the following four factors:

(1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant’s brief has a fatal defect [pursuant to] 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.

Commonwealth v. Lucky, 229 A.3d 657, 663–64 (Pa.Super. 2020) (cleaned

up).

Appellant filed a timely notice of appeal, preserved his issues in a timely

post-sentence motion, and included a Rule 2119(f) statement in his brief. In

the statement, Appellant asserts that his aggregate sentence is excessive and

manifestly unreasonable under the circumstances, and that the trial court

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“failed to give due consideration to . . . Appellant’s mitigating circumstances.”

Appellant’s brief at 16.

Appellant’s claim that the trial court did not adequately consider the

mitigating circumstances does not raise a substantial question. See, e.g.,

Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa.Super. 2018) (collecting

cases). However, his contention that the aggregate sentence is manifestly

unreasonable does raise a substantial question for our review. See, e.g.,

Commonwealth v. Williams, 69 A.3d 735, 740 (Pa.Super. 2013).

Therefore, we turn to the merits of Appellant’s claim, mindful of the

following. “When reviewing sentencing matters, this Court must accord the

sentencing court great weight as it is in the best position to view the

defendant’s character, displays of remorse, defiance or indifference, and the

overall effect and nature of the crime.” Commonwealth v. Edwards, 194

A.3d 625, 637 (Pa.Super. 2018) (cleaned up). “We cannot re-weigh the

sentencing factors and impose our judgment in the place of the sentencing

court.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009).

Instead, we review the trial court’s sentencing determination for an 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 judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

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While broad, “the trial court’s discretion is not unfettered.”

Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa.Super. 2011). 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. § 9721(b). “Where the sentencing court had

the benefit of a [PSI] we can assume the sentencing court was aware of

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.” Commonwealth v.

Hill, 210 A.3d 1104, 1117 (Pa.Super. 2019) (cleaned up).

Here, as noted above, the trial court’s sentence was informed by a PSI

and a mental health evaluation, such that we presume that the court was

aware of all the pertinent information about Appellant’s history, character, and

condition, including his prior record score of five. The court considered the

sentencing guideline recommendations for the various offenses, including the

standard range minimum of sixteen to twenty years of incarceration for the

murder conviction. Upon review of this information, as well as “all of the

testimony and arguments of counsel,” the court “imposed a sentence within

the applicable guideline range[.]” Trial Court Opinion, 1/5/23, at 16.

Appellant argues that, given his age of forty-five at the time of

sentencing, the sentence is unduly harsh because it “amounts to a de facto

life sentence where the Legislature did not intend to impose a life sentence

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for defendants similarly situated to . . . Appellant.” Appellant’s brief at 20.

He maintains that “[t]he sentence is manifestly unreasonable because the

sentencing court did not give due weight to the victim’s role in bringing about

the crash.” Id. at 21. Therefore, Appellant asserts that “he should be

resentenced consistent with the norms underlying the Sentencing Code.” Id.

As with his first claim, Appellant ignores our standard of review and

instead asks us to re-weigh sentencing factors in his favor. He has pointed to

nothing in the record to suggest “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 imposing

standard range sentences for his many offenses that resulted in two deaths

and the horrific injuries of the survivor. Antidormi, supra at 760. Indeed,

his contention that middle-aged offenders cannot receive standard-range

sentences for third-degree murder because they amount to life sentences is

preposterous.1 Furthermore, the court imposed a substantially shorter

sentence than the forty to eighty years sought by the Commonwealth on the

basis that Appellant not only showed no remorse for his actions, but blamed

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1 Moreover, as the Commonwealth notes, Appellant will be eligible for parole

at age sixty-five, which is an age this Court has held does not amount to a life sentence for juveniles who are convicted of murder. See Commonwealth’s brief at 14 (citing Commonwealth v. Anderson, 224 A.3d 40, 47 (Pa.Super. 2019) (holding no de facto life sentence was imposed for offender who will be eligible for parole at age sixty-seven)).

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his victims for their injuries, stating “it’s not my fault they didn’t have their

seatbelts on.” N.T. Sentencing, 8/19/22, at 16.

Appellant has presented no basis for us to conclude that the trial court’s

sentence is the product of an abuse of its considerable discretion. Accordingly,

we have no cause to disturb it.

Judgment of sentence affirmed.

Date: October 11, 2023

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