J-S93039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHEILA MIRRER,

Appellant No. 1156 EDA 2016

Appeal from the Judgment of Sentence March 9, 2016

in the Court of Common Pleas of Monroe County

Criminal Division at No.: CP-45-CR-0001332-2015

BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED FEBRUARY 08, 2017

Appellant, Sheila Mirrer, appeals from the judgment of sentence 

imposed on March 9, 2016, following her December 2, 2015 open guilty plea 

to one count each of aggravated assault by motor vehicle, driving under the 

influence highest rate, and recklessly endangering another person.1 On 

appeal, Appellant challenges the discretionary aspects of her sentence. For 

the reasons discussed below, we affirm.

We take the underlying facts and procedural history in this matter 

from the trial court’s May 25, 2016 opinion.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3735.1(a) and 3802(c), and 18 Pa.C.S.A. § 2705, 

respectively.
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On September 1, 2014, [Appellant] was driving south on 

State Route 191 with her three minor children, ages fourteen, 

thirteen, and seven. [Appellant] and her children were leaving a 

family party in the Mount Pocono area, where [Appellant] had 

consumed several alcoholic beverages. As they traveled home, 

[Appellant] observed the victim, later identified as Timothy 

Stevens, hitchhiking down the highway. After nearly hitting Mr. 

Stevens, [Appellant] stopped and picked him up.

As [Appellant’s] vehicle approached a slight bend in the 

highway, she lost control, left the roadway, and collided with a 

tree. As a result of the impact, the vehicle spun clockwise and 

flipped onto its passenger side.

Upon arriving at the scene, emergency personnel found 

Mr. Stevens trapped in the front passenger seat and 

unresponsive. After Mr. Stevens was freed from the wreckage, 

he was immediately transported via emergency helicopter to 

Lehigh Valley Medical Center for life-saving treatment. Mr. 

Stevens’ blood tested negative for alcohol or controlled 

substances.

As the first responders worked to free Mr. Stevens from 

the wreckage, Trooper Shamus Kelleher made contact with 

[Appellant], who was walking around the scene. [Appellant] told 

Trooper Kelleher that she had been at a family party and that, 

after seeing Mr. Stevens hitchhiking down the road, she decided 

to pick him up. According to [Appellant], she and Mr. Stevens 

had argued over his destination. [Appellant] claimed that Mr. 

Stevens then grabbed the steering wheel and pulled it to the 

right, causing her to lose control of the vehicle. While 

interviewing [Appellant], Trooper Kelleher detected a strong odor 

of alcohol and observed that [Appellant’s] eyes were bloodshot 

and glassy. [Appellant] denied that she had consumed any 

alcohol.

[Appellant] was transported by ambulance to Pocono 

Medical Center. While there, [Appellant] consented to a blood 

draw and a sample of her blood was taken for chemical testing. 

Approximately three days later, Trooper Kelleher received the 

results, which indicated that [Appellant’s] blood alcohol content 

was [0].22%.
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On October 22, 2014, while in a rehabilitation hospital for 

serious spinal cord injuries, Mr. Stevens spoke with Trooper 

Kelleher by phone. Mr. Stevens recalled that he was walking 

down Route 191 when [Appellant] stopped and picked him up. 

After travelling a short distance, Mr. Stevens noticed that 

[Appellant] was having difficulty staying on the road and 

appeared to be highly intoxicated. Just prior to the crash, Mr. 

Stevens saw that the vehicle had travelled onto the shoulder and 

was headed directly for a utility pole. Trying to avoid a crash, 

Mr. Stevens grabbed the steering wheel, attempting to get the 

vehicle back onto the road. Mr. Stevens could not recall any 

further details regarding the incident. The injuries Mr. Stevens 

suffered were permanent and severe.

[Appellant] was subsequently charged with [a]ggravated 

[a]ssault by [v]ehicle while [d]riving [u]nder the [i]nfluence 

(DUI), two counts of DUI ([g]eneral [i]mpairment and [h]ighest 

[r]ate), three counts of [e]ndangering the [w]elfare of a [c]hild, 

and several summary traffic offenses. On December [2], 2015, 

[Appellant pleaded] guilty to an amended count of [a]ggravated 

[a]ssault by [v]ehicle as a felony of the third degree, an 

amended count of [r]ecklessly [e]ndangering [a]nother [p]erson, 

a misdemeanor of the second degree, and one count of DUI, a 

misdemeanor of the first degree. During the hearing, [the trial 

court] conducted a full colloquy where [Appellant] 

acknowledged, verbally and in writing, the potential maximum 

sentences she could receive. After accepting the plea, [the trial 

court] entered an order scheduling a sentencing hearing, 

directing [the] [p]robation [d]epartment to prepare a [p]re-

[s]entence [i]nvestigation (“PSI”) report, and requiring 

[Appellant] to undergo a comprehensive drug and alcohol 

assessment.

On March 9, 2016, the sentencing hearing was convened, 

as scheduled. At the conclusion of the hearing, [the trial court] 

sentenced [Appellant] to an aggregate period of incarceration of 

[not less than] ten [nor more than] thirty-six months, less one 

day, to be served in the Monroe County Correctional Facility, 

followed by a consecutive four year period of probation, over 

which [the trial court] retained jurisdiction.[a]

[a] The breakdown of the sentence is as follows: On 

the [a]ggravated [a]ssault by [v]ehicle conviction, 

[Appellant] was sentenced to incarceration of [not 
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less than] nine [nor more than] twenty-four months, 

less one day, a sentence in the standard range. On 

the DUI conviction, [Appellant] was sentenced to 

[not less than] one [nor more than] twelve months, 

also a sentence in the standard range, followed by a 

consecutive four year period of probation. The DUI

sentence was run consecutive to the [a]ggravated 

[a]ssault by [v]ehicle sentence. Finally, [Appellant] 

was sentenced to [not less than] one month [nor 

more than] twelve months on the [r]ecklessly 

[e]ndangering [a]nother [p]erson conviction, which 

sentence was run concurrent to the DUI and 

[a]ggravated [a]ssault by [v]ehicle sentences.

At the sentencing hearing, [Appellant] did not contest any 

of the information contained in the PSI report. Before sentence 

was imposed, [Appellant] and her attorney addressed the [trial 

c]ourt. [Appellant] apologized to the victim and to her family for 

the burden caused by her actions. She also requested leniency 

so that she could return to her children as soon as possible. In 

addition, [Appellant’s] mother and brother spoke on 

[Appellant’s] behalf. In his argument, counsel for [Appellant] 

acknowledged the severity of the victim’s injuries, but requested 

leniency based on [Appellant’s] lack of a prior record. He then 

asked the [trial c]ourt to “consider splitting the baby in half and 

giving her somewhere between [not less than three nor more 

than four and one-half] months with a long tail and if she screws 

up she goes back to jail.” 

The assistant district attorney also addressed the [trial 

c]ourt. She asked that [the trial court] impose an aggravated 

range sentence of [not less than] twelve [nor more than] 

twenty-four months incarceration, pointing out [Appellant’s] high 

BAC and the fact that [Appellant’s] three minor children were in 

the vehicle at the time of the crash. She also described, by 

reference to the [v]ictim [i]mpact [s]tatement, the significant, 

permanent, and life-altering injuries sustained by the victim as a 

result of [Appellant’s] conduct. Among other things, Mr. 

Stevens’ spinal cord injury required numerous laminectomies 

and fusions of the C4-C7 vertebrae. At the time of sentencing, 

Mr. Stevens had resided in a rehabilitation hospital before being 

moved to a nursing home, where he remained. Although his 

condition has improved to the point where he can ambulate to 

some extent, he is not well enough to complete daily tasks 
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without significant help. His prognosis is unclear but it is 

unlikely Mr. Steven[]s will []ever be able to work again or live 

without significant nursing care. 

Before imposing sentence, [the trial court] explained [its] 

reasoning and informed [Appellant] of the facts, information, 

and documents on which the sentence was based. Specifically, 

[the trial court] advised [Appellant] that the sentence was based 

on the record and file in this case, the facts surrounding her plea 

that [it] accepted, the comprehensive PSI report that had been 

prepared by [the p]robation [o]ffice, the victim impact 

statement, the statements made by [Appellant], her attorney, 

and family members, the argument made by the assistant 

district [attorney], and the applicable sentencing laws, rules, and 

guidelines. [The trial court] then stated [its] reasons on the 

record. . . . 

Subsequently, [Appellant] filed a post-sentence motion 

and an amended motion[b] seeking reconsideration of the 

sentence. In these filings, [Appellant] expressed her belief that, 

given her prior record score of zero and the somewhat shorter 

sentence recommended by [the p]robation [o]ffice, “the total 

aggregate maximum sentence of [seven] years [was] 

excessive.”

[b] In her first [m]otion to [r]econsider [s]entence, 

[Appellant’s] counsel mistakenly believed that 

[Appellant] had entered a guilty plea to DUI as an 

ungraded misdemeanor. 

On March 18, 2016, [the trial court] issued an order 

denying [Appellant’s] motion. [Appellant] then filed this 

appeal.[2]

(Trial Court Opinion, 5/25/16, at 1-5) (record citations omitted).

On appeal, Appellant raises the following question for our review:

____________________________________________

2 On April 11, 2016, the trial court ordered Appellant to file a concise 

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). 

Appellant filed a timely Rule 1925(b) statement on April 26, 2016. See id. 

On May 25, 2016, the trial court issued an opinion. See Pa.R.A.P. 1925(a). 
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Whether the four year consecutive sentence of probation for the 

offense of [d]riving [u]nder the [i]nfluence [m]inor [o]ccupants 

was outside the aggravated range of the sentence without 

specifying sufficient reason for the same as well as whether the 

consecutive sentence of four years consecutive probation 

imposed is contrary to 75 Pa.C.S.A. [§] 3804(d) in that the 

assessment required under 75 Pa.C.S.A. [§] 3814(1) did not 

indicate that Appellant needed additional treatment pursuant to 

75 Pa.C.S.A. [§] 3814(2)(a)[?]

(Appellant’s Brief, at 8).

Appellant challenges the discretionary aspects of her sentence. Our 

standard of review is 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 judgment for reasons of partiality, prejudice, bias 

or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015), 

appeal denied, 125 A.3d 1198 (Pa. 2015) (citation omitted).

On appeal, Appellant argues that the trial court “failed to 

[substantially] articulate” and did not file a contemporaneous written 

statement setting forth the reasons for the imposition of the probationary 

tail. (Appellant’s Brief, at 10). However, Appellant waived this claim.

Preliminarily, we note, “[i]ssues challenging the discretionary aspects 

of sentence must be raised in a post-sentence motion or by presenting the 

claim to the trial court during the sentencing proceedings. Absent such 

efforts, an objection to a discretionary aspect of a sentence is waived.” 
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Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004), appeal 

denied, 860 A.2d 122 (Pa. 2004) (citations and internal quotations marks 

omitted). 

Here, while Appellant did file a post-sentence motion and an amended 

motion to reconsider sentence, the only issue she raised was that “[t]he 

total aggregate maximum sentence of [seven] years is excessive under the 

circumstances.” (Amended Motion to Reconsider Sentence, 3/16/16, at 

unnumbered page 1 ¶ 3(c)). It is settled that an appellant waives any 

discretionary aspects of sentence issue not raised in a post-sentence motion; 

also, an appellant cannot raise matters for the first time in a Rule 1925(b) 

statement; lastly, an appellant cannot raise an issue for the first time on 

appeal. See Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 

2011) (issues raised for first time in Rule 1925(b) statement are waived); 

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal 

denied, 831 A.2d 599 (Pa. 2003) (finding claim sentencing court did not put 

sufficient reasons to justify sentence on record waived where issue was not 

raised in post-sentence motion); see also Pa.R.A.P. 302(a). Thus, 

Appellant waived her discretionary aspects of sentence claim.

Accordingly, for the reasons discussed above, we affirm the judgment 

of sentence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/8/2017