J-A12033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JASON AARON MACKEL,

Appellant No. 1341 WDA 2016

Appeal from the Order September 8, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0015783-2014

BEFORE: OLSON, SOLANO and RANSOM, JJ.

MEMORANDUM BY OLSON, J.: FILED AUGUST 29, 2017

Appellant, Jason Aaron Mackel, appeals from the judgment of sentence 

entered on April 7, 2016, as made final by the denial of Appellant’s 

post-sentence motion by operation of law, on September 8, 2016. We 

affirm Appellant’s judgment of sentence, but vacate his conviction under 75 

Pa.C.S.A. § 3802(a)(1) at count 5 in view of this Court’s recent decision in 

Commonwealth v. Farrow, 2017 WL 3185316 (Pa. Super. 2017). 

We briefly summarize the facts and procedural history of this case as 

follows. On November 12, 2014, Appellant struck a pedestrian with his car 

in the Wilkinsburg section of Allegheny County, Pennsylvania. The victim 

was taken to the hospital for medical treatment. She suffered two broken 

legs and, at one point, required a breathing tube. The hospital eventually 

released the victim to a skilled nursing facility where she died on March 28, 
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2015. At the time of the accident, Appellant remained on the scene until the 

police arrived. Appellant admitted to police that he had consumed alcohol 

before driving. His blood alcohol content (BAC) was .288. The 

Commonwealth charged Appellant with aggravated assault by vehicle while 

driving under the influence (DUI) of alcohol, recklessly endangering another 

person (REAP), DUI (highest rate of alcohol), DUI (general impairment –

incapable of safe driving), DUI (general impairment – accident resulting in 

death of another person), and careless driving.1 

A preliminary hearing was scheduled for November 20, 2014, but 

Appellant waived the preliminary hearing and was released on his own 

recognizance. Thereafter, the trial court held a pre-trial conference and 

granted several continuances for discovery. On September 28, 2015, the 

parties appeared before the trial court to select a new trial date and for 

Appellant to sign a new subpoena. At that proceeding, the trial court 

ordered Appellant to submit to drug and alcohol tests. Appellant tested 

positive for cocaine and had a BAC of .13. The trial court revoked 

Appellant’s bond and remanded him to county jail. On October 7, 2015, 

Appellant filed a motion to reinstate his bond. The trial court granted the 

____________________________________________

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

Pa.C.S.A. § 3802(a)(1), 75 Pa.C.S.A. § 3802(a)(1)/75 Pa.C.S.A. § 3804, and 

75 Pa.C.S.A. § 3714, respectively. 
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request and ordered Appellant to participate in outpatient drug and alcohol 

rehabilitation. 

On January 19, 2016, Appellant pled guilty to REAP, the DUI offenses, 

and careless driving. The Commonwealth withdrew the remaining 

aggravated assault by vehicle while DUI charge. The trial court deferred 

sentencing for the preparation of a pre-sentence investigation (PSI) report. 

On April 7, 2016, the trial court imposed an aggregate sentence of six 

months to one year of imprisonment, followed by 18 months of probation. 

More specifically, the trial court imposed an aggravated-range sentence of 

three to six months of imprisonment, followed by 18 months of probation for 

REAP. The trial court also imposed an aggravated-range sentence of three 

to six months of imprisonment for DUI (highest rate of alcohol) to be served 

consecutively to the sentence for REAP. The trial court merged Appellant’s 

remaining DUI – general impairment convictions with his conviction for DUI 

– highest rate of alcohol. Finally, although the trial court found Appellant 

guilty of careless driving, it did not impose a further penalty. 

After sentencing, Appellant orally moved for bond pending appeal. 

N.T., 4/7/2016, at 20-23. The trial court denied the request. Id. Appellant 

filed a petition for bail, and a subsequent addendum to that petition, with 

this Court on April 11, 2016 and April 20, 2016, respectively. On May 20, 

2016, this Court issued an order directing the trial court to “enter a bail 

order pending appeal which is consistent with the bail order that was in 

effect prior to verdict [... or a] modif[ied] bail order pursuant to Pa.R.Crim.P. 
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521(D) with any conditions it deems necessary, but should not deny bail 

completely.” Superior Court Order, 5/20/2016, at 1. On May 26, 2016, the 

trial court entered an order reinstating Appellant’s bail under the same 

conditions that were in place prior to the verdict. On June 2, 2016, the trial 

court entered an order granting a stay of the sentence imposed pending 

disposition of this direct appeal. 

While the bond issue was pending before this Court, Appellant filed a 

timely post-sentence motion with the trial court on April 14, 2016. On 

September 8, 2016, the Allegheny County Department of Court Records 

entered an order denying Appellant’s post-sentence motion by operation of 

law. This timely appeal ensued.2

On appeal, Appellant presents the following issue, with three subparts, 

for our review:

I. Whether the trial court committed a manifest abuse of 

discretion by imposing a clearly unreasonable sentence in 

the aggravated range when it:

A. Failed to consider [] Appellant’s need for 

rehabilitation, a pertinent sentencing factor under 

42 Pa.C.S.[A.] § 9721;

B. Impermissibly considered the socioeconomic 

status of [] Appellant in imposing sentence; and

____________________________________________

2

 On September 9, 2016, Appellant filed a notice of appeal. By order 

entered on September 21, 2016, the trial court directed Appellant to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). Appellant complied timely on October 18, 2016. The trial court 

issued an opinion pursuant to Pa.R.A.P. 1925(a) on November 14, 2016.
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C. Providing insufficient reasons for sentencing [] 

Appellant in the aggravated range where the only 

reasons offered to support an aggravated 

sentence constitute[d] “double counting” in light 

of [] Appellant’s prior bond revocation.

Appellant’s Brief at 1-2 (complete capitalization omitted).

Appellant claims that the trial court abused its discretion, in several 

respects, when it imposed aggravated range sentences in this case. An 

appellant challenging the discretionary aspects of his sentence must invoke 

this Court's jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether 

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 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).

Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (internal 

citation omitted).

Here, Appellant filed a timely notice of appeal, challenged the 

discretionary aspects of his sentence, and included a statement in his 

appellate brief pursuant to Pa.R.A.P. 2119(f). Accordingly, we must consider 

whether Appellant raises a substantial question to implicate our review. 

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Id. (citation omitted). “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 
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provision of the Sentencing Code; or (2) contrary to the fundamental norms 

which underlie the sentencing process.” Id. (citation omitted). We 

previously determined that the failure to set forth adequate reasons on the 

record, pursuant to 42 Pa.C.S.A. § 9721(b), to justify an aggravated range 

sentence raises a substantial question. Id.; see also Commonwealth v. 

Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (holding that “an excessive 

sentence claim – in conjunction with an assertion that the trial court failed to 

consider mitigating factors – raises a substantial question.”). We have also 

concluded that a claim that the trial court double-counted factors already 

considered in the sentencing guidelines, as the reason for imposing a 

lengthy sentence, raises a substantial question. See Commonwealth v. 

Rush, 2017 WL 1955302, at *10 (Pa. Super. 2017) (citation omitted). As 

such, we proceed to the merits of all three sub-parts of Appellant’s claim.

Our standard of review is as follows:

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.

Id. (citation omitted).

“[T]he court shall follow the general principle that 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 
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the victim and on the community, and the rehabilitative needs of the 

defendant.” 42 Pa.C.S.A. § 9721(b). The trial court is required also to 

consider the sentencing guidelines. See Commonwealth v. Bonner, 135 

A.3d 592, 604 (Pa. Super. 2016). When the challenged sentence is within 

the sentencing guidelines, we may only vacate a sentence where the 

application of the guidelines would be clearly unreasonable. Id., citing 42 

Pa.C.S.A. § 9781(c)(2). Here, Appellant received a sentence within the 

aggravated range of the guidelines, thus, we may only vacate his sentence if 

it was clearly unreasonable. Id.

In his first issue presented, Appellant claims the trial court failed to 

consider his rehabilitative needs and the imposition of a term of 

incarceration ran counter to his recovery for drug and alcohol addiction. 

Appellant’s Brief, at 19-22. Appellant argues that “[a]s a court-mandated 

condition of [his bond] reinstatement, [he] was required to participate in a 

drug rehabilitation program” and, thus, he posits that “[i]t is contradictory 

for the sentencing court, on the one hand, to note that [] Appellant has an 

addiction and is making strides on it, and, then, on the other hand, to yank 

him from the system built to maintain his sobriety and incarcerate him.” Id.

at 20-21. 

Initially, we note that “[w]here a PSI exists, we presume that the trial 

court was aware of relevant information regarding the defendant's character 

and weighed those considerations along with mitigating statutory factors. A 

PSI constitutes the record and speaks for itself.” Bonner, 135 A.3d at 605 
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(original brackets and citation omitted). Here, the trial court was provided 

with a PSI and we presume the trial court was aware of the relevant 

information therein.

Moreover, upon further review of the certified record, we discern no 

abuse of discretion in considering Appellant’s rehabilitative needs when 

imposing Appellant’s sentence. The trial court determined that incarceration 

was necessary because Appellant appeared for a court proceeding, nine 

months after the incident at issue, under the influence of alcohol and 

cocaine. Id. at 15, 20. Although this was also the reason for the 

revocation of his bond, it was also proper for the trial court to consider as a 

factor under Section 9721, since the episode underscored the continuing 

danger Appellant posed to society. 

Next, Appellant “contends that the sentence imposed by the trial court 

was the product of partiality, bias or ill-will toward [] Appellant, as indicated 

vis-à-vis the court’s remarks about [his] socioeconomic status.” Appellant’s 

Brief, at 22. Citing specific statements made by the trial court at 

sentencing, Appellant maintains the sentencing court “indicated its belief 

that [] Appellant, due to his financial position, inhibited the Commonwealth’s 

ability to prosecute its case and held this against [him,]” “simply because 

[he] employed the services of an expert witness[.]” Id. at 22-23. 

At the start, we recognize that the trial court, in fact, commented 

directly on Appellant’s ability to retain a private defense expert. N.T., 

4/7/2016, at 14. However, the trial court made the comments in response 
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to the Commonwealth’s recitation of reasons for withdrawing the most 

serious offense against Appellant, the aggravated assault charge. See id. at 

12-14. While we find that remarking upon Appellant’s ability to retain an 

expert was intemperate,3 we conclude the trial court’s comments did not 

show bias in sentencing Appellant. On this issue, the trial court also made 

intemperate remarks to the Commonwealth, saying it “lacked common 

sense” and was “toothless in [its] prosecution.” Id. at 14. In balancing the 

entire exchange between the parties and the trial court, we conclude that 

the trial court was merely commenting on the fact that it believed that 

standard range sentences for DUI and REAP were too lenient in this matter, 

because Appellant struck the pedestrian victim who later died. Id. at 12. 

The trial court simply did not punish Appellant based upon his socioeconomic status.

____________________________________________

3 Although a judge’s remark may be characterized as intemperate in nature, 

that remark alone cannot establish bias or partiality. See Corbin v. 

Cowan, 716 A.2d 614, 619 (Pa. Super. 1998). We remind the trial court 

that “[a] judge should not employ hostile or demeaning words in opinions or 

in written or oral communications with lawyers, parties or witnesses.” Pa. 

Code of Civility, Art. I (5). A trial court judge should not comment “upon 

race, sex, gender, religion, national origin, ethnicity, disability, age, sexual 

orientation, marital status, socioeconomic status, or political affiliation, and 

shall not permit court staff, court officials, or others subject to the judge's 

direction and control to do so.” Pa. Code of Judicial Conduct Rule 2.3(B). 

Moreover, “[a] judge shall be patient, dignified, and courteous to litigants, 

jurors, witnesses, lawyers, court staff, court officials, and others with whom 

the judge deals in an official capacity[.]” Pa. Code of Judicial Conduct Rule 

2.8. 
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Finally, Appellant contends that the trial court “double counted” two 

sentencing factors that were already contemplated by the sentencing 

guidelines when imposing his aggravated sentence. Appellant’s Brief, at 

26-28. Appellant claims that the sentencing court erred in considering his 

BAC when fashioning an aggravated sentence since the Motor Vehicle Code 

already imposes an enhanced mandatory minimum punishment for 

individuals whose BAC levels are in violation of the highest of three 

sentencing tiers. Id. at 27-28. Appellant also argues that he “was doubly 

punished for the same act – violating the conditions of his bond” when “the 

trial court revoked [his] bond and remanded him to jail, released him from 

jail, and then, because of the violation, sentenced him to jail, again.”4 Id. at 

28.

When deciding whether a court has improperly based an aggravated 

sentence on a factor that is already considered by the sentencing guidelines, 

we have stated:

[T]he guidelines were implemented to create greater consistency 

and rationality in sentencing. The guidelines accomplish the 

above purposes by providing a norm for comparison, i.e., the 

standard range of punishment, for the panoply of crimes found 

in the crimes code and by providing a scale of progressively 

greater punishment as the gravity of the offense increases....

____________________________________________

4 As set forth above in our discussion pertaining to Appellant’s rehabilitative 

needs, we conclude that the trial court permissibly considered Appellant’s 

intoxication at a prior proceeding as warranting incarceration. 
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The provision of a “norm” also strongly implies that deviation 

from the norm should be correlated with facts about the crime 

that also deviate from the norm for the offense, or facts relating 

to the offender's character or criminal history that deviates from 

the norm and must be regarded as not within the guidelines 

contemplation. Given this predicate, simply indicating that an 

offense is a serious, heinous or grave offense misplaces the 

proper focus. The focus should not be upon the seriousness, 

heinousness or egregiousness of the offense generally speaking, 

but, rather, upon how the present case deviates from what 

might be regarded as a “typical” or “normal” case of the offense 

under consideration.

Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa. Super. 2006) (citation 

omitted). Moreover, “[a]n aggravated range sentence [is] justified to the 

extent that the individual circumstances of [the defendant's] case are 

atypical of the crime for which [the defendant] was convicted, such that a 

more severe punishment is appropriate.” Id. The Fullin Court affirmed an 

aggravated range sentence because the trial court justified the sentence by 

opining on “the extreme indifference for the consequences of [the 

defendant's] actions and because of the extreme nature of the harm to the 

victim.” Id. at 849 (citation omitted).

We conclude that the trial court did not “double-count” sentencing 

factors when fashioning Appellant’s term of incarceration. The trial court 

justified Appellant’s aggravated sentences because this case did not involve 

the typical or normal case of DUI or REAP. Furthermore, Appellant was 

intoxicated, over three times the legal limit, when he struck the victim with 

such force that “she went 50 feet from the point of impact” and then 

Appellant’s car “skidded 22 feet.” Id. at 8. The trial court further 
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recognized that Appellant was so intoxicated that he did not render aid and 

could not retrieve his information when police arrived. Id. at 14. 

Furthermore, the victim ultimately died. This clearly was not a typical DUI 

or REAP case. As such, under the facts of this matter, Appellant’s aggregate 

sentence of six months to one year of imprisonment, followed by 18 months 

of probation, was reasonable. Accordingly, we discern no abuse of discretion 

in sentencing Appellant.5 

DUI (general impairment – incapable of safe driving) conviction 

vacated. Judgment of sentence, as amended, affirmed. 

____________________________________________

5

 Finally, we recognize that Appellant’s convictions for DUI (general 

impairment – incapable of safe driving) and DUI (general impairment –

accident resulting in death of another person) arose from a single criminal 

act in violation of the same criminal statute. This Court recently held that 

such a scenario constitutes a violation of the protection against double 

jeopardy under the United States and Pennsylvania Constitutions. See 

Farrow, 2017 WL 3185316. This is so despite the fact that Appellant’s DUI 

– general impairment convictions merged for sentencing purposes because 

of the “significant collateral consequences” including, inter alia, 

“unwarranted enhancement of [] prior record score (or prior DUI offense 

history) in subsequent criminal proceedings and unjustified impediments to 

restoration of [] driving privileges.” Id. at *8. Hence, we vacate Appellant’s 

conviction for DUI (general impairment – incapable of safe driving) pursuant 

to 75 Pa.C.S.A. § 3802(a)(1) as set forth at count 5 of the criminal 

information. Id. Because we can vacate the DUI (general impairment –

incapable of safe driving) conviction without disturbing the overall 

sentencing scheme, we need not remand. See Commonwealth v. 

Lomax, 8 A.3d 1264, 1268 (Pa. Super. 2010) (citation omitted).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/29/2017