J-S36004-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES SMITH, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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

v.

CHARLES SMITH, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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

v.

CHARLES SMITH, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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.
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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, thirddegree 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