J-S09024-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TIMOTHY MACK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1438 EDA 2023

Appeal from the Judgment of Sentence Entered March 10, 2023

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

No(s): CP-51-CR-0005715-2021

BEFORE: PANELLA, P.J.E., NICHOLS, J., and BECK, J.

MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 4, 2024

Appellant Timothy Mack appeals from the judgment of sentence 

imposed after he pled guilty to Driving Under the Influence (DUI) and related 

offenses. Appellant raises claims concerning both the legality and the 

discretionary aspects of his sentence. Following our review, we vacate 

Appellant’s sentence for DUI and affirm the judgment of sentence in all other 

respects.

The trial court summarized the underlying facts of this matter as follows:

On April 10th of 2021, at approximately 9:38 p.m., [Appellant] 

was driving a red Chrysler minivan on Ellsworth Street in the City 

and County of Philadelphia. Ellsworth is a one-lane, one-way 

street with parking on both sides. As he approached 18th Street, 

he struck two parked cars and knocked the driver’s [side] mirrors 

off. He then went to the intersection of Ellsworth and 18th Streets 

and struck the complainant, Kris McKinnon, who was walking her 

[friend’s] dog and crossing Ellsworth Street. Her body landed 

approximately 60 feet from the point of impact. After striking the 

complainant, [Appellant] crashed into two parked cars moving 
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both of the cars onto the sidewalk. When officers arrived on the 

scene a few minutes later, the red minivan was unoccupied. 

Witnesses told the officers that two males had exited the van and 

ran away. Officers found the complainant lying in the middle of 

the street bleeding from the head. She was taken to Jefferson 

Hospital in critical condition. 

Approximately 35 minutes later, [Appellant] and his brother, Azim 

Simpson, walked up to Officer Kane and stated they were in the 

car that had crashed. [Appellant] told the officer that he had been 

driving. Mr. Simpson also told the officer that [Appellant] had 

been driving. Officer Kane noticed an odor of alcohol coming from 

both of them. Both [Appellant] and Mr. Simpson were taken to 

[Accident Investigation Division (“AID”)] Headquarters to be 

interviewed. Officer Dunbar interviewed [Appellant]. After he was 

given his Miranda[1] warnings, [Appellant] told the officer that he 

was driving the red van involved in the accident. It was his 

brother’s car and he had driven it a couple times. He did not 

remember the crash. He remembered driving on Ellsworth Street 

and the next thing he remembered was waking up to the airbags 

deployed in his face. He realized he hit someone and got out of 

the car, but did not check on the person. He stated he didn’t have 

a chance to. Officer Dunbar noticed that [Appellant] appeared 

sluggish, with red eyes, slow movements, also an odor of 

marijuana coming from his person. [Appellant] was arrested for 

driving under the influence and was seen by AID Officer Zirilli who 

read to [Appellant] his DL-26[B] Warnings and asked [Appellant]

to consent to a blood draw. [Appellant] gave his consent and two 

[t]ubes of blood were drawn and placed on a property receipt and 

submitted to the drug [lab] for analysis. 

If this matter went to trial Dr. Richard Cohen, an expert in 

pharmacology and toxicology, would tell this court he examined 

the blood drawn from [Appellant] and authored the toxicology 

report and found 10 nanograms of marijuana constituent, 77

nanograms of marijuana metabolite, 34 nanograms of 

methamphetamine, and 34 nanograms of Oxycodone in 

[Appellant’s] blood. Dr. Cohen concluded to a reasonable degree 

of medical certainty that [Appellant] was a recent user of 

marijuana, methamphetamine, and Oxycodone and [had] taken 

them concomitantly or in close time to one another in significant 

dosage amounts and was under the influence of those agents and 

____________________________________________

1 Miranda v. Arizona, 384 U.S. 436 (1966).
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was not capable of safely operating a motor vehicle on this 

highway. AID Officer Beardsmith interviewed Mr. Simpson, who 

told officers that his brother, [Appellant], was driving his van at 

the time of the accident. When he got out of the van, he saw the 

girl that was struck. He and his brother went to their mother’s 

home, but his sister drove them back to the scene. 

The complainant in this matter, Kris McKinnon, age 32, was taken 

to Jefferson Emergency Room, where she was found to be 

suffering from an epidural [] hematoma, which is a blood clot in 

the brain. CAT scans also showed rapid bleeding in the brain, part 

of her skull was removed to relieve the pressure on the brain. The 

bleeding in the brain was stopped. She also suffered from multiple 

skull fractures, fracture[s] of the C-spine, of the pelvis, of the right 

knee. She was in a minimally conscious state for months, only 

emerged from that state at the end of 2021. She’s gone to 

Jefferson Hospital several times for complications caused from the 

traumatic brain injury including infection to the central nervous 

system in the brain. To this day, she cannot take care of herself. 

She’s been in the hospital, rehab, or assist[ed] living facilities ever 

since this incident and she is unable to communicate in any way. 

If this matter had gone to trial, prison calls made by [Appellant]

would have been introduced, in which [Appellant] asks family 

members how the lady is doing. [Appellant’s] wife in the prison 

call said [Appellant] must have fallen asleep behind the wheel 

when he hit the lady and the cars. [Appellant] agreed that’s 

probably what happened. He also told his uncle to try to find out 

if the lady is conscious because he wanted to send her a basket 

or something. He has another conversation with his grandmother 

where she said it’s an accident, it’s not like you hurt this woman 

on purpose and [Appellant] agreed. Another conversation with 

[Appellant’s wife] where she says if he listened to her in the first 

place, he wouldn’t have been driving the car and wouldn’t be in 

this position. [Appellant] agreed. [Appellant’s] wife then yelled 

at him for taking Percocet while driving.

Trial Ct. Op., 8/16/23, at 2-3.

On December 19, 2022, Appellant pled guilty to aggravated assault by 

vehicle while DUI, accidents involving death or personal injury, DUI, simple 
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assault, and recklessly endangering another person (REAP).

2

 Sentencing was 

deferred for a pre-sentence investigation (PSI) report and a mental health 

evaluation. 

On March 10, 2023, the trial court sentenced Appellant to an aggregate 

term of five to eighteen years of incarceration. Specifically, the trial court 

imposed consecutive terms of incarceration as follows: three to ten years for 

aggravated assault by vehicle while DUI, one to two years for REAP, one to 

six years for accident involving death or personal injury, with a concurrent 

sentence of one to six months’ incarceration for DUI.3

Appellant filed a motion for reconsideration, which the trial court denied. 

Appellant subsequently filed a timely notice of appeal and a court-ordered 

Pa.R.A.P. 1925(b) statement. The trial court issued an opinion addressing 

Appellant’s claims.

On appeal, Appellant raises the following issues for review:

1. Did the [trial] court err by imposing a manifestly excessive and 

unreasonable sentence of five to eighteen years’ incarceration 

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2 75 Pa.C.S. § 3735.1(a), 75 Pa.C.S. § 3742(a), 75 Pa.C.S. § 3802(d)(2); 18 

Pa.C.S. 2701(a), and 18 Pa.C.S. § 2705, respectively.

3 At the time of sentencing, Appellant’s prior record score (PRS) was a zero. 

With the exception of the sentence for REAP, all of Appellant’s individual 

sentences were within the sentencing guidelines. 

With respect to REAP, the guidelines set forth a standard minimum sentence 

of restorative sanctions to three months, plus or minus three months for 

mitigating or aggravating circumstances. Appellant’s one-to-two-year 

sentence exceeded the aggravated minimum guideline range by eight months, 

but did not exceed the two-year statutory maximum for a second-degree 

misdemeanor.
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where the sentence was based solely on the severity of the 

complainant’s injuries and the [trial] court ignored the 

significant mitigation presented at the sentencing hearing?

2. Did the [trial] court violate the Sentencing Code by imposing a

sentence above the aggravated range of the sentencing 

guidelines without stating its reasons for an upward departure 

either at the sentencing hearing or in a contemporaneous 

written statement?

3. Did the [trial] court impose an illegal sentence by failing to 

merge the charge of driving under the influence, 75 Pa.C.S. §

3802(d)(2), with the charge of aggravated assault by vehicle 

while driving under the influence, 75 Pa.C.S. § 3735.1? 

Appellant’s Brief at 3.

Discretionary Aspects of Sentence

Appellant’s first two claims relate to the discretionary aspects of his 

sentence. First, Appellant argues that the trial court failed to consider 

mitigating factors, such as Appellant’s “unstable and troubled childhood, his 

acceptance of responsibility, his remorse, and his need for rehabilitation.” Id.

at 16. Instead, Appellant claims that the trial court “focused exclusively on 

the impact of [Appellant’s] actions on the victim” which resulted in a 

“manifestly excessive and unreasonable sentence.” Id. Appellant also argues 

that the trial court abused its discretion by imposing a sentence of one to two 

years’ incarceration for REAP “because the sentence was well above the 

aggravated range of the sentencing guidelines and the lower court did not cite 

any aggravating circumstances to justify the departure.” Id. at 22. 

Therefore, Appellant requests that we vacate his sentence and remand the 

matter for resentencing. Id. at 24.
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“[C]hallenges to the discretionary aspects of sentencing do not entitle 

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987, 

991 (Pa. Super. 2016) (citations omitted). Before reaching the merits of such 

claims, we must determine: 

(1) whether the appeal is timely; (2) whether Appellant preserved 

his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P. 

2119(f)] concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of 

sentence; and (4) whether the concise statement raises a 

substantial question that the sentence is inappropriate under the 

sentencing code. 

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations 

omitted).

“To preserve an attack on the discretionary aspects of sentence, an 

appellant must raise his issues at sentencing or in a post-sentence motion. 

Issues not presented to the sentencing court are waived and cannot be raised 

for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247, 

1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a) 

(stating that “[i]ssues not raised in the trial court are waived and cannot be 

raised for the first time on appeal”).

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d 

1086, 1090 (Pa. Super. 2017) (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.” Commonwealth v. Grays, 167 A.3d 

793, 816 (Pa. Super. 2017) (citation omitted).

Here, the record reflects that Appellant preserved his sentencing claims

by raising them in his post-sentence motion, filing a timely notice of appeal 

and a court-ordered Rule 1925(b) statement, and including a Rule 2119(f) 

statement in his brief. See Corley, 31 A.3d at 296. Further, Appellant’s 

claims each raise a substantial question for our review. See Commonwealth 

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

excessive sentence claim—in conjunction with an assertion that the court 

failed to consider mitigating factors—raises a substantial question” (citation 

omitted)); See Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 

2001) (stating that “[a] claim that the sentencing court imposed an 

unreasonable sentence by sentencing outside the guidelines presents a 

‘substantial question’ for our review”). Therefore, we will review the merits 

of Appellant’s claims.

Our well-settled 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.
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Additionally, our review of the discretionary aspects of a sentence 

is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and 

(d). Subsection 9781(c) provides:

The appellate court shall vacate the sentence and remand 

the case to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within the 

sentencing guidelines but applied the guidelines 

erroneously;

(2) the sentencing court sentenced within the sentencing 

guidelines but the case involves circumstances where the 

application of the guidelines would be clearly 

unreasonable; or

(3) the sentencing court sentenced outside the 

sentencing guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the 

sentence imposed by the sentencing court.

42 Pa.C.S. § 9781(c).

In reviewing the record, 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 [PSI].

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Raven, 97 A.3d at 1253-54 (citation omitted).

“When imposing a sentence, the sentencing court must consider the 

factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public, 

[the] gravity of [the] offense in relation to [the] impact on [the] victim and 

[the] community, and [the] rehabilitative needs of the defendant[.]” 
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Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation 

omitted and formatting altered). “A sentencing court need not undertake a 

lengthy discourse for its reasons for imposing a sentence or specifically 

reference the statute in question, but the record as a whole must reflect the 

sentencing court’s consideration of the facts of the crime and character of the 

offender.” Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012) 

(citations omitted). Additionally, the trial court “must consider the sentencing 

guidelines.” Fullin, 892 A.2d at 848 (citation omitted). 

However, “where the trial court is informed by a PSI [report], it is 

presumed that the court is aware of all appropriate sentencing factors and 

considerations, and that where the court has been so informed, its discretion 

should not be disturbed.” Commonwealth v. Edwards, 194 A.3d 625, 638 

(Pa. Super. 2018) (citation omitted and formatting altered).

When applying the sentencing guidelines, this Court has explained that

the sentencing court is required to consider the sentence ranges 

set forth in the sentencing guidelines, but it [is] not bound by the 

sentencing guidelines. The court may deviate from the 

recommended guidelines; they are merely one factor among 

many that the court must consider in imposing a sentence. A 

court may depart from the guidelines if necessary, to fashion a 

sentence which takes into account the protection of the public, the 

rehabilitative needs of the defendant, and the gravity of the 

particular offense as it relates to the impact on the life of the 

victim and the community. When a court chooses to depart from 

the guidelines[,] however, it must demonstrate on the record, as 

a proper starting point, [its] awareness of the sentencing 

guidelines. Further, the court must “provide a contemporaneous 

written statement of the reason or reasons for the deviation from 

the guidelines.” 42 Pa.C.S. § 9721(b). 
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Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (some 

citations omitted and formatting altered). However, “all that a trial court must 

do to comply with [these] procedural requirements is to state adequate 

reasons for the imposition of sentence on the record in open court.” 

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014)

(citations omitted). 

The balancing of the sentencing factors is the sole province of the 

sentencing court, which has the opportunity to observe the defendant and all 

witnesses firsthand. See Commonwealth v. Kurtz, 294 A.3d 509, 536 (Pa. 

Super. 2023), appeal granted on other grounds, 306 A.3d 1287 (Pa. 2023). 

In conducting appellate review, this Court “cannot reweigh sentencing factors 

and impose judgment in place of sentencing court where lower court was fully 

aware of all mitigating factors[.]” Id. (citation omitted). 

“Generally, Pennsylvania law affords the sentencing court discretion to 

impose its sentence concurrently or consecutively to other sentences being 

imposed at the same time or to sentences already imposed. [An a]ppellant is 

not entitled to a ‘volume discount’ on his multiple convictions by the imposition 

of concurrent sentences.” Commonwealth v. Brown, 249 A.3d 1206, 1216 

(Pa. Super. 2021) (citations omitted and formatting altered).

Here, at sentencing, the trial court heard arguments from both parties, 

along with extensive testimony from the victim’s family members and 

Appellant. See N.T. Sentencing Hr’g, 3/10/23, at 1-107. After a brief recess, 

the trial court explained:
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In coming up with a sentence for [Appellant], the court has 

considered his [PSI report] along with the mental health 

evaluation and the court has considered the protection of the 

public, the gravity of this offense as it relates to the impact on the 

life of the victim and on the community as shown through her 

family and friends. The court has considered [Appellant’s] 

rehabilitative needs and sentencing guidelines. The court has 

considered the fact that [Appellant] did accept responsibility by 

pleading guilty and that as per his [PSI report], the challenges 

that he had while growing up, in addition to his mental health 

difficulties. The court has considered the Commonwealth’s 

sentencing memorandum, the 85 pages of victim impact letters, 

and the testimony from the family and friends here today in the 

courtroom. I think [the victim] is lucky to have the support and 

friendship of everyone in this courtroom. I believe it was [the 

victim’s uncle] who talked about the court having to struggle to 

determine what is an appropriate sentence in this case, and this 

is, in fact, a struggle today. [Appellant’s] decision to drive while 

high on drugs that night impacted so much. It impacted the family 

and friends of [the victim], businesses, friendships, and it has an 

impact financially.

Id. at 109.

In its Rule 1925(a) opinion, the trial court further explained:

[T]he record demonstrates that the court considered all the 

pertinent factors and circumstances of this case, and thoroughly 

explained its rationale prior to imposing sentence.

Specifically, in addition to [Appellant’s] PSI report, mental health 

evaluation, the Commonwealth’s sentencing memorandum and 

the Sentencing Guidelines, the court duly considered the 

protection of the public, the gravity of the offenses as it relates to 

the impact on the community, the catastrophic impact on the 

victim including the 85 pages of letters from the victim’s family 

members and their extensive testimony at sentencing, the 

character and condition of [Appellant], his family background and 

upbringing, as well as [Appellant’s] acceptance of responsibility 

and need for rehabilitation.[fn1] See N.T. [Sentencing Hr’g] at 3-

112. 

[fn1] While [Appellant] ultimately accepted responsibility for 

his actions by pleading guilty, he did so after unsuccessfully 
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litigating a motion to suppress his statement to police, and 

further, after initially fleeing the scene of the accident 

without checking on [the victim] who lay bleeding and 

unresponsive in the street.

Indeed, contrary to [Appellant’s] contention, the court explicitly 

considered all the appropriate factors prior to imposing sentence

. . . [See] N.T. [Sentencing Hr’g] at 108-109.

Thus, the record demonstrates that the court duly considered all 

relevant factors and circumstances prior to imposing a sentence 

tailored to this particular defendant. Accordingly, [Appellant’s]

claim is without merit.

[Appellant] also faults the court for “imposing a minimum 

sentence for aggravated assault while DUI that was at the top of 

the aggravated range of the sentencing guidelines, and for 

imposing minimum sentences for [REAP] and accidents involving 

death or personal injury that were above the aggravated range of 

the sentencing guidelines.” This claim fails. 

At the outset it must be observed that the court imposed 

sentences within the guideline ranges for both aggravated assault 

while DUI and accidents involving death or personal injury. 

Specifically, with regard to aggravated assault while DUI, the 

guidelines recommended a minimum term of 12-24 months +/-

12, and the court imposed a minimum sentence within that 

framework (36 months). Likewise, as to accidents involving death 

or personal injury, the guidelines recommended a minimum term 

of RS-9 months +/- 3, and the court imposed a minimum sentence 

within that framework (12 months). 

As such, the court only “departed” from the guidelines with 

respect to [Appellant’s] sentence for REAP -- i.e., whereas the 

guidelines recommended a minimum term of RS-1 +/- 3 months, 

the court imposed a minimum term of 12 months’ incarceration. 

As noted above, however, the guidelines are not binding, they are 

merely advisory in nature. See Commonwealth v. Walls, 926 

A.2d [957,] 964-965 [(Pa. 2007)] (“[W]e reaffirm that the 

guidelines have no binding effect, create no presumption in 

sentencing, and do not predominate over other sentencing factors 

-- they are advisory guideposts . . . they recommend, however, 

rather than require a particular sentence.”); Commonwealth v. 

Yuhasz, 923 A.2d [1111,] 1118 [(Pa. 2007)] (court may deviate 

from the recommended guidelines as they are “merely one factor 
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among many that the court must consider in imposing a 

sentence”). 

Moreover, as previously discussed, the court painstakingly 

considered all the pertinent factors and circumstances of this case, 

and provided ample reasons for its sentence, which it carefully 

tailored to [Appellant]. See N.T. 3/10/23 at 3-112. Accordingly, 

[Appellant’s] contention that the court abused its discretion in 

fashioning its sentence is wholly refuted by the record.

Trial Ct. Op. at 7-10 (some formatting altered, some footnotes omitted).

Based on our review of the record, we discern no abuse of discretion by 

the trial court. See Raven, 97 A.3d at 1253. The record reflects that the 

trial court ordered a PSI report, which it reviewed prior to sentencing. See

N.T. Sentencing Hr’g at 4, 108. Therefore, we presume that the trial court 

was aware of the mitigating factors and considered them when imposing 

Appellant’s sentence. See Edwards, 194 A.3d at 638; see also Kurtz, 294 

A.3d at 536. Additionally, the trial court explicitly considered the appropriate 

sentencing factors and explained the reasons for imposing Appellant’s 

sentence. We will not re-weigh those factors on appeal. See Kurtz, 294 A.3d 

at 536; Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) 

(explaining that the appellate court cannot reweigh sentencing factors and 

impose its judgment in place of sentencing court where lower court was fully 

aware of all mitigating factors). 

Further, all of Appellant’s individual sentences were within the 

sentencing guidelines except for REAP, and as stated, the trial court 

thoroughly explained its considerations of the guidelines and relevant 

sentencing factors in crafting the sentence imposed. Therefore, we have no 
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basis to conclude that Appellant’s sentence was unreasonable. See 

Antidormi, 84 A.3d at 760; see also Raven, 97 A.3d at 1254. Accordingly, 

Appellant is not entitled to relief.

Legality of Sentence

Appellant argues that the trial court imposed an illegal sentence because 

his convictions for DUI and aggravated assault by vehicle while DUI should 

have merged for sentencing purposes. Appellant’s Brief at 25. Appellant also 

contends that although he completed his six-month sentence for the DUI 

charge, “other parts of his sentence for DUI have not yet been completed.”

Id. at 25. Specifically, he reiterates that “he was ordered to pay a $1,000 

fine, complete a drug and alcohol assessment, attend alcohol highway safety 

school, serve a 12-month driver’s license suspension, and submit to 1 year of 

driving with an ignition interlock device.” Id. at 25-26. Therefore, Appellant 

contends that “he continues to suffer direct criminal consequences” and the 

trial court erred in concluding that his claim was moot. Id. at 26.

The Commonwealth responds that Appellant’s claim is moot because he 

has “served his six-month sentence for DUI, as he was sentenced over ten 

months ago, and his DUI sentence was ordered to run concurrent with his 

other sentences” and “[n]o additional conditions were imposed for his DUI 

sentence.” Commonwealth’s Brief at 16-17.

The issue of whether convictions merge for sentencing purposes 

implicates the legality of a sentence. See Commonwealth v. Baldwin, 985 
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A.2d 830, 833 (Pa. 2009). Therefore, our standard of review is de novo and 

our scope of review is plenary. See id.

Our Supreme Court has explained that Section 9765 of the Sentencing 

Code “prohibits merger unless two distinct facts are present: 1) the crimes 

arise from a single criminal act; and 2) all of the statutory elements of one of 

the offenses are included in the statutory elements of the other.” Id. (citing 

42 Pa.C.S. § 9765). “Where crimes merge for sentencing purposes, the court 

may sentence the defendant only on the higher graded offense.” 42 Pa.C.S. 

§ 9765. “To determine whether offenses are greater and lesser-included 

offenses, we compare the elements of the offenses.” Commonwealth v. 

Watson, 228 A.3d 928, 941 (Pa. Super. 2020) (citations omitted). “If both 

crimes require proof of at least one element that the other does not, then the 

sentences do not merge.” Id. (citations omitted). Further, it is well settled 

that a DUI conviction merges with aggravated assault by vehicle while DUI for 

sentencing purposes. See Commonwealth v. Schmohl, 975 A.2d 1144, 

1150 (Pa. Super. 2009). 

However, our Supreme Court has held that the criminal doctrine of 

merger was not applicable in the civil arena of operating privilege suspensions, 

and thus Department of Transportation (DOT) could impose multiple license 

suspensions on a driver, and there is no merger of the collateral 

consequences. See Bell v. Commonwealth, Dep’t of Transp., Bureau of 

Driver Licensing, 96 A.3d 1005 (Pa. 2014).
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Finally, this court has held that when a defendant completes a sentence, 

he is no longer subject to any direct criminal or civil consequences thereto, 

and thus any challenge to the sentence is incapable of review and moot. See

Schmohl, 975 A.2d at 1150; see also Commonwealth v. King, 786 A.2d 

993, 996-97 (Pa. Super. 2001).

Here, the trial court concluded that Appellant’s claim was moot because 

he was no longer serving his sentence for DUI. Specifically, the trial court 

explained:

[Appellant] contends that the court imposed an illegal sentence 

for DUI, which should have merged with his sentence for 

aggravated assault while DUI. While the court is constrained to 

agree with [Appellant], the court submits that the issue has been 

rendered moot. 

At sentencing, counsel noted that DUI should merge with 

aggravated assault while DUI for sentencing purposes, however, 

the parties were satisfied with the court’s sentence of 1 to 6 

months’ incarceration because it was run concurrently and thus 

did not upset the overall sentencing scheme: 

THE COURT: So count 7 you’re saying should be merged? 

MR. KRANTZ [COUNSEL FOR DEFENDANT]: I would argue, 

yes. 

THE COURT: Do you have any argument on that, Ms. 

Chung?

MS. CHUNG [ASSISTANT D.A.]: Your Honor, since it was to 

run concurrent anyway, I have no argument, no. 

THE COURT: But isn’t that like a mandatory 72 hours 

minimum? 

MR. KRANTZ: Your Honor, I believe you said that the DUI 

was concurrent with the REAP, but that was consecutive to 

the aggravated assault while DUI. So I believe that would 

make the sentence on the DUI run consecutively to the 
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aggravated assault while DUI, which I believe it merges. For 

the simple assault and DUI, I would ask Your Honor to 

whatever sentence you make, to make it run 

concurrent with the aggravated assault while DUI 

because I believe it merges. 

THE COURT: All right. So count 7, the DUI is one month to 

six months concurrent. 

N.T. [Sentencing Hr’g] at 110-111 (emphasis added). 

The court nonetheless recognizes that [Appellant’s] DUI conviction 

should have merged with his conviction for aggravated assault 

while DUI for sentencing purposes. See Commonwealth v. 

Tanner, 61 A.3d 1043, 1047 (Pa. Super. 2013) (DUI merges with 

aggravated assault while DUI for sentencing purposes). However, 

“[u]nder Pennsylvania law, if Appellant completed the aggregate 

maximum term of imprisonment [for the merged offense of DUI] 

while his appeal was pending . . . his challenge to the legality of 

his sentence for [the DUI] conviction would be moot and incapable 

of review.” Commonwealth v. Schmohl, 975 A.2d 1144, 1149 

(Pa. Super. 2009) (citing Commonwealth v. King, 786 A.2d 

993, 996-997 (Pa. Super. 2001) (finding merger issue waived and 

moot where the sentence of imprisonment on the allegedly 

merged crime was completed during the course of the appeal)). 

While the Schmohl Court ultimately did not deem the issue moot 

because it was unable to determine whether the appellant was still 

serving his sentence for DUI -- in the instant case, there is no 

question that [Appellant] has been in custody well beyond the six 

month maximum term imposed for DUI. As such, [Appellant’s]

challenge to the legality of his sentence is moot and unreviewable 

on appeal. See King, 786 A.2d at 996-997. 

Moreover, even if [Appellant’s] legality challenge were not moot, 

the appropriate relief would be to vacate only his DUI sentence 

without remanding for resentencing because such disposition 

would have no effect on the Court’s overall sentencing scheme. 

Compare Schmohl, 975 A.2d at 1151 (vacating defendant’s 

merged sentence for DUI without remanding for resentencing 

where the merged sentence was run concurrently and therefore 

did not disturb the overall sentencing scheme) with

Commonwealth v. Tanner, 61 A.3d 1043, 1048 (Pa. Super. 

2013) (vacating defendant’s sentence for DUI and remanding for 

resentencing where the DUI sentence was ordered to be served 
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consecutively and therefore disturbed the trial court’s overall 

sentencing scheme) (citation omitted). 

In sum, given that [Appellant’s] sentence for DUI was run 

concurrently and he already has served the maximum term of 

confinement for same, the court submits that [Appellant’s] legality 

challenge is moot. See King, [786 A.2d at 996-997].

Nonetheless, inasmuch as the Superior Court were to determine 

otherwise, this court would recommend that its sentence for DUI 

be vacated and that its remaining judgments of sentence be 

affirmed.

Trial Ct. Op. at 10-13 (some formatting altered).

Following our review of the record, we agree with the trial court that 

Appellant’s convictions for DUI and aggravated assault by vehicle while DUI 

should have merged for sentencing purposes. See Schmohl, 975 A.2d at 

1150. Therefore, we are constrained to vacate Appellant’s sentence for DUI. 

However, because the trial court imposed Appellant’s DUI sentence concurrent 

to his sentence for aggravated assault by vehicle while DUI, our disposition 

does not upset the trial court’s overall sentencing scheme, nor does it affect 

Appellant’s aggregate sentence. Therefore, it is not necessary to remand this 

matter for resentencing. See Commonwealth v. Thur, 906 A.2d 552, 569-

70 (Pa. Super. 2006).

Further, although we conclude that merger applies to Appellant’s 

underlying criminal sentences, our conclusion does not affect the imposition 

of administrative penalties associated with his underlying convictions. See 

Bell, 96 A.3d at 1020 (explaining that the doctrine of merger does not apply 

to administrative penalties imposed by PennDOT). Therefore, we disagree 

with the trial court’s conclusion that Appellant’s sentencing claim is moot. See 
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Schmohl, 975 A.2d at 1150; Commonwealth v. Rohde, 402 A.2d 1025, 

1027 (Pa. 1979) (explaining that “[i]f the possibility of criminal consequences 

is sufficient to avoid mootness in subsequent criminal actions, . . . the same 

possibilities should have the same effect on the mootness issue where social 

and civil consequences are involved” (citation omitted)). 

In sum, we vacate Appellant’s sentence for DUI, and we affirm 

Appellant’s convictions and judgment of sentence in all other respects. 

Judgment of sentence affirmed in part, and vacated in part as to the 

sentence for DUI. Jurisdiction relinquished.

Date: 9/04/2024