J-S79012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVEN VAN SMITH S. RICH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 214 MDA 2018

Appeal from the Judgment of Sentence December 19, 2017

In the Court of Common Pleas of Cumberland County Criminal Division at 

No(s): CP-21-CR-0003120-2015

BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 06, 2019

Appellant, Steven Van Smith S. Rich, appeals from the judgment of 

sentence imposed on December 19, 2017, and amended on December 27, 

2017, in the Cumberland County Court of Common Pleas. We affirm.

The trial court summarized the relevant facts and procedural history of 

this matter as follows:

At approximately midnight on May 23, 2015, [Appellant]

caused an accident involving personal injury when he failed to stop 

at a red light and struck the rear of [Ms. Mary Hudson’s] vehicle 

while it was proceeding through an intersection, which caused 

[Ms. Hudson’s] vehicle to become inoperable on the side of the 

road. [Appellant] did not stop and did not attempt to render aid 

or exchange information with [Ms. Hudson]. A bystander[, Mr. 

Adam Webb,] who had witnessed the accident[,] entered the 

roadway on foot to check on the welfare of [Ms. Hudson] ... , and 

was fatally struck by a passing tractor-trailer. Eyewitnesses to the 

accidents informed police ... where [Appellant’s] vehicle was 

located a short distance down the road from the initial collision. 

Of note, [Appellant’s] car stopped down the road only because it 

was disabled after its collision with [Ms. Hudson’s] vehicle. Upon 
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investigation, it was discovered that [Appellant] was intoxicated. 

[Ms. Hudson] later sought medical treatment for stiffness, 

soreness, bruising, pain, and anxiety caused by the incident.

Trial Court Opinion, 6/1/18, at 3 (footnotes omitted).

On October 30, 2017, [Appellant] pled nolo contendere to 

the following offenses: at Count 1, DUI - General Impairment,[1]

first offense, an ungraded misdemeanor; and at Count 4, 

Accidents Involving Death or Personal Injury,[2] a first-degree 

misdemeanor.2 After review of [Appellant’s] pre-sentence 

investigation report (“PSI”) and the impact statement from [Ms. 

Hudson], we sentenced [Appellant] on December 19, 2017 to the

following: at Count 1, to pay the costs of prosecution and a $300 

fine, and incarceration in Cumberland County Prison for fortyeight (48) hours to six (6) months; at Count 4, to pay the costs 

of prosecution and a $100 fine, and incarceration in Cumberland 

County Prison for four (4) to twenty-three (23) months, to run 

consecutively to the sentence at Count 1.3 [Appellant] was further 

directed to obtain a drug and alcohol evaluation, comply with any 

recommended treatment, abstain from consuming alcohol, and to 

pay $20.15 restitution to [Ms. Hudson].

4

2 See In Re: Nolo Contendere Plea, Order of Court, 

October 30, 2017 (Peck, J.). [Appellant’s] nolo

contendere plea was in full satisfaction of the charges 

for which he was to be prosecuted, which included 

eight additional various misdemeanor and summary 

counts stemming from a DUI accident caused by 

[Appellant]. See Nolo Plea Colloquy, Plea of 

[Appellant], October 30, 2017.

3 See In Re: Sentence, Order of Court, December 19, 

2017 (Peck, J.). We sentenced [Appellant] to the 

minimum sentence in the aggravated range of the 

sentencing guidelines for this offense because of the

seriousness of the offense and the impact to [Ms. 

Hudson].

____________________________________________

1 75 Pa.C.S. § 3802(a)(1).

2 75 Pa.C.S. § 3742(a).
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4

Id. The amount of restitution to [Ms. Hudson] was 

this low amount because insurance had covered the 

vast majority of the costs of the accident. See

Transcript of Proceedings, In Re: Sentence, December 

19, 2017 at p. 5 (Peck, J.).

On December 21, 2017, [Appellant] filed a Motion to Modify 

and Stay Commencement of Sentence, arguing that our 

sentencing of [Appellant] in the aggravated range guidelines on 

Count 4 was improper, given this Court’s reasons for the same, 

and requesting that the four-month minimum sentence be 

reduced, or alternatively, for the sentences imposed at Count 1 

and Count 4 to run concurrently.5 On December 27, 2017, we 

granted [Appellant’s] Motion in part and amended [Appellant’s]

sentences to run concurrently to each other.6 [Appellant] filed a 

Notice of Appeal from our December 19, 2017 Order on February 

1, 2018.7

5 See [Appellant’s] Motion to Modify and Stay 

Commencement of Sentence, December 21, 2017.

6 See Order of Court, December 27, 2017 (Peck, J.). 

All other requests in [Appellant’s] Motion were denied.

7 [Appellant’s] Notice of Appeal, February 1, 2018.

Trial Court Opinion, 6/1/18, at 1-2 (footnote 1 omitted). Both Appellant and 

the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issue for this Court’s 

consideration:

Did the court abuse its discretion by sentencing [Appellant] to an 

aggravated range minimum sentence of four months while 

impermissibly considering factors already included within the 

Sentencing Guidelines as the sole reason for aggravating the 

sentence?

Appellant’s Brief at 7 (full capitalization omitted).
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Appellant’s issue presents a challenge to the discretionary aspects of his 

sentence. It is well settled that when an appellant challenges the discretionary 

aspects of his sentence there is no automatic appeal; rather, the appeal will 

be considered a petition for allowance of appeal. Commonwealth v. W.H.M., 

932 A.2d 155, 162 (Pa. Super. 2007). Furthermore, as this Court noted in 

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to determine: (1) 

whether [the] appellant has filed a timely notice of 

appeal, see Pa.R.A.P. 902 and 903; (2) whether the 

issue was properly preserved at sentencing or in a 

motion to reconsider and modify sentence, see

Pa.R.Crim.P. 720; (3) whether [the] appellant’s brief 

has a fatal defect, 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, 42 Pa.C.S.A. §9781(b). 

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). 

Appellant has satisfied the first three elements of the four-part test from 

Moury. Appellant preserved the sentencing issue by filing a timely postsentence motion and notice of appeal, and he provided a statement of reasons 

for allowance of appeal from the discretionary aspects of his sentence 

pursuant to Pa.R.A.P. 2119(f) in his brief. Next, we must determine if 

Appellant has raised a substantial question for our review. Moury, 992 A.2d 

at 170.
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A substantial question requires a demonstration that “the 

sentence violates either a specific provision of the sentencing 

scheme set forth in the Sentencing Code or a particular 

fundamental norm underlying the sentencing process.” 

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 

2005). This Court’s inquiry “must focus on the reasons for which 

the appeal is sought, in contrast to the facts underlying the 

appeal, which are necessary only to decide the appeal on the 

merits.” Id. Whether a substantial question has been raised is 

determined on a case-by-case basis; the fact that a sentence is 

within the statutory limits does not mean a substantial question 

cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255 

(Pa. Super. 2003). However, a bald assertion that a sentence is 

excessive does not by itself raise a substantial question justifying 

this Court’s review of the merits of the underlying claim. Id. 

Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012). 

In his Pa.R.A.P. 2119(f) statement, Appellant avers that the trial court 

relied on impermissible factors and fashioned Appellant’s sentence on 

considerations already included in the Sentencing Guidelines. Appellant’s Brief 

at 12-13. We conclude that Appellant has raised a substantial question for 

our review. Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa. Super. 

2003).

It should be noted that “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.” Commonwealth v. Sheller, 

961 A.2d 187, 190 (Pa. Super. 2008). Additionally, an abuse of discretion is 

not merely an error in judgment; rather, an appellant must establish that the 

trial court ignored or misapplied the law, exercised its judgment for reasons 
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of partiality, prejudice, bias, or ill will, or reached a manifestly unreasonable 

decision. Id.

“It is impermissible for a court to consider factors already included 

within the sentencing guidelines as the sole reason for increasing or 

decreasing a sentence to the aggravated or mitigated range.” Simpson, 829 

A.2d at 339 (citation omitted) (emphasis added). However, trial courts may

consider factors already included in the Sentencing Guidelines if those factors 

supplement other extraneous sentencing information. Id. (citation omitted).

It is well settled that in Pennsylvania, a fundamental norm of the 

sentencing process is that a criminal defendant’s sentence be individualized. 

Commonwealth v. Luketic, 162 A.3d 1149, 1160 (Pa. Super. 2017) (citing 

Commonwealth v. Devers, 546 A.2d 12, 13 (Pa. 1988)). “Although 

Pennsylvania’s system stands for individualized sentencing, the court is not 

required to impose the ‘minimum possible’ confinement.” Moury, 992 A.2d 

at 171 (citation omitted). “When imposing a sentence, the sentencing court 

must consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the 

protection of the public, gravity of offense in relation to impact on victim and 

community, and rehabilitative needs of the [Appellant].” Commonwealth v. 

Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (citation omitted).

The trial court addressed this issue as follows:

Importantly, we considered that there are far-reaching 

consequences to [Appellant]’s decision not to stop and render aid 

to [Ms. Hudson] at the scene of the accident at the time it 

occurred, as he was required by law to do. We also acknowledge 
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that it is within our purview to consider the surrounding 

circumstances of the offense when fashioning a sentence for 

[Appellant]. Here, [Appellant], by not stopping, set off a chain of 

events that resulted in injury to [Ms. Hudson], the death of [Mr. 

Webb], and physical hazards to others using the road. [Ms. 

Hudson] was stranded on the side of a busy highway in an 

inoperable vehicle in the wee hours of the morning, in physical 

danger due to her location. Another driver, coming to the victim’s 

aid, left her own vehicle partially in the lane of traffic in order to 

alert oncoming vehicles to the accident scene, creating an 

additional peril to her own person and property. [Mr. Webb,] [a]

pedestrian who witnessed the collision, after coming to the aid of 

the victim and then attempting to check on the welfare of 

[Appellant] himself, was struck and killed by traffic on the 

roadway. Police and medical personnel who responded to the 

accident had to track down [Appellant] at his location some 

distance away from the scene, creating additional danger for them 

as well. Multiple cars stopped in or near the road due to the 

accident and debris strewn between the two cars involved in the 

collision created additional hazards for others using the road at 

that time of night. Much of this could have been avoided had 

[Appellant] heeded his legal duty to stop and remain at the scene.

[Appellant] was explicitly informed on multiple occasions 

prior to his sentencing that the sentence was entirely up to this 

[c]ourt, and defense counsel acknowledged the same. Yet now 

[Appellant] complains that we abused our discretion by sentencing 

him in the bottom of the aggravated range of the sentencing 

guidelines. However, at the time of sentencing, both the 

Commonwealth and [Appellant] had agreed to defer to our 

judgment regarding sentencing. Thus, exercising our own 

judgment, we sentenced [Appellant] to an aggravated range 

sentence, and that sentence was neither beyond the statutory 

limit nor manifestly excessive. Likewise, we do not find credible 

any claim that the aggravated range sentence we imposed, in 

recognition of the effect on the victim and the seriousness of the 

circumstances surrounding the offense, was an abuse of 

discretion. This claim is meritless.

We noted on the record at the time of sentencing that we 

had reviewed both the pre-sentence investigation report of 

[Appellant] as well as [Ms. Hudson’s] impact statement. We 

considered all of the information contained within those 

documents in reaching our decision of sentence. We also noted 
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that we were sentencing [Appellant] in the aggravated range due 

to “the seriousness of the offense, and the impact that this offense 

has had on the victim.” Here [Appellant] calls into question the 

adequacy of our reasons for imposing an aggravated range 

sentence, stating that “the seriousness of the offense is taken into 

account in the offense gravity score” and “the impact to the victim 

is incorporated into the accident charge.” However, when we 

cited to the “seriousness of the offense” we also took into 

consideration the serious nature of the surrounding 

circumstances and the consequences to the community, 

including the death of the bystander and the additional 

dangers to third parties that were posed as a result of 

[Appellant’s] flight from the scene, and not solely the 

nature of the offense easily calculable by the offense 

gravity score. At the same time, physical injury is not the 

only impact that this incident has had on [Ms. Hudson]. 

[Ms. Hudson] also had to witness the death of an innocent 

person, and now experiences anxiety while driving at 

night. Therefore, we provided sufficient reasons for sentencing 

[Appellant] in the aggravated range of the sentencing guidelines 

for the Accidents charge.

Trial Court Opinion, 6/1/18, at 9-11 (footnotes omitted) (emphasis added).

As noted above, the trial court had the benefit of a pre-sentence 

investigation report (“PSI”), which gives rise to a presumption that the trial 

court properly considered and weighed all relevant factors. See 

Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016) 

(“[W]here the sentencing judge had the benefit of a [PSI] report, it will be 

presumed that he or she was aware of the relevant information regarding the 

[Appellant]’s character and weighed those considerations along with 

mitigating statutory factors.”). Moreover, by their nature, victim impact 

statements are unique to the victim and illustrative of the crime’s impact on 

the individual and the community. Swope, 123 A.3d at 338; see also 
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Commonwealth v. King, 182 A.3d 449 (Pa. Super. 2018) (discussing the 

breadth and contents of a victim impact statement). Appellant’s argument 

that the impact of a crime on a victim is already included in the Sentencing 

Guidelines would nullify victim impact statements. We cannot agree with 

Appellant’s assertion, and we find no legal authority for it. 

Moreover, it is self-evident that the “seriousness” of an offense cannot 

be considered in a vacuum. Indeed, the seriousness of a given crime is

contemplated by the Sentencing Guidelines; however, an aggravated-range 

sentence may be justified when the individual circumstances of the case are 

atypical of the crime for which Appellant was convicted, making a more severe 

punishment appropriate. Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa. 

Super. 2006). 

In the case at bar, the trial court explained that Appellant struck Ms. 

Hudson’s vehicle causing her injuries, and Appellant fled without rendering 

aid. This collision led to a bystander, Mr. Webb, who was attempting to render 

aid to victims of an accident Appellant caused, being struck and killed by a 

third vehicle in full view of Ms. Hudson and other witnesses. The trial court 

considered the PSI, the distinct facts of this case, which included the death of 

Mr. Webb that occurred in front of Ms. Hudson and other eyewitnesses, in 

addition to Ms. Hudson’s impact statement. Trial Court Opinion, 6/1/18, at 9-

11. The trial court concluded that the unique circumstances of this case 

distinguished Appellant’s crimes from other instances of DUI and accidents 
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involving death or personal injury. Id. Accordingly, we cannot agree that 

factors already included within the Sentencing Guidelines were the sole basis 

for Appellant’s sentence in the aggravated range.

After review, we discern no abuse of discretion by the trial court 

sentencing Appellant in the aggravated range of the Sentencing Guidelines. 

Accordingly, Appellant is entitled to no relief, and we affirm the judgment of 

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/06/2019