J-S34045-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERICA MARKUS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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, 20211judgment 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: 

____________________________________________

* 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 

____________________________________________

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 

____________________________________________

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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6 Markus 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