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NON-PRE CE DENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. PACURIE HUYNH,

Appellant No. 2872 EDA 2013

Appeal from the Judgment of Sentence entered August 2 , 2013, in the Court of Common Pleas of Delaware County, Criminal Division, at No(s): CP- 23

- CR -0001195-2013 BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD*, JJ. DISSENTING STATEMENT BY FITZGERALD, J.: FILED AUGUST 20, 2014 I respectfully dissent from the majority’s decision to a ffirm the judgment of sentence because, in my view, the record did not support the finding that Appellant was a “menace to society” and was not amenable to rehabilitation. As these factors were integral to the trial court’s decision to impose a statutory maximum sentence of three and a half to seven years, I would remand this matter for resentencing. Instantly, the Commonwealth charged Appellant with one count of accidents involving death and one count of failing to give information or render aid, a summary offense. Appellant pleaded gui lty to the accidents involving death count, and the summary count was dismi ssed after sentencing. As to accidents involving death, the Senten cing Guidelines recommended a standard minimum range term of imprisonm ent of three toJ.S43017- 14

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twelve months with an add ition of up to six months for “aggravating factors.” Moreover, Appellant was subject to a mandatory minimum

sentence of twelve months. See 75 Pa.C.S. § 3742(b)(3). At the sentencing hearing, Appellant requested that t he trial court impose a mandatory minimum sentence of one year based on mitigating factors. N.T., 8/2/13, at 11-14. Appellant stressed th e accidental nature of the collision, which occurred while the victim was “walkin g along” a major thoroughfare at 2:53 a.m. on July 4, 2012. Appella nt also emphasized that he had no prior record, that his guilty plea evinced h is taking responsibility for the accident, and that he expressed remorse to the family of the victim. The Commonwealth recommended the statutory maximum sen tence. 1 Id.

at 15-20. Th e Commonwealth reminded the court of the victim’s fam ily’s testimony regarding the agony of caring for the victi m before his death nearly 8 months after the accident 2 and Appellant’s attempts to conceal his responsibility for the accident for 236 days.

1 The Commonwealth also noted that after Appellant committed the underlying offense, the General Assembly increased the g rade of the offense from a third-degree felony to a second- degree felony and argued, “It just shows . . . the difference of how serious this case is.” N .T. at 19 -20. Although the Commonwealth’s argument is fraught with ex post facto concerns, there is no indication in the record that the t rial court relied upon it when sentencing.

2 The victim’s family, through the victim’s sister, aske d the trial court to impose a maximum sentence “as any time [Appellant] spent incarcerated is nothing compared to what Tommy [the victim] and my f amily experienced and will for a lifetime.” Id. at 8.J.S43017- 14

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The trial court, when fashioning its sentence, found th at Appellant’s “action of leaving the scene was callous and inhumane,” tha t he “took overt actions to avoid detection and prosecution,” and that hi s expression of

remorse was “insincere.” Id. at 24- 26 . The court also determined that “the impact upon the victim’s family has been crushing” and, when discussing the law enforcement resources used to investigate and apprehe nd Appellant, that “[s]ociety has also suffered greatly[.]” Id. at 26-27.

The cou rt concluded that Appellant “is a menace to society and he is not readily amenable to rehabilitation,” and reasoned :

Society as a whole needs to know that killers will not be permitted to consciously leave a human being lying in the street to die and then just walk away with minimum punishment. Society’s only protection is by the imposit ion of stiff penalties, that is penalties that have real, not semiimaginary consequences.

Id. Following a review of the record, I find a proper e videntiary basis for the court to reject Appellant’s claims of remorse based o n his failure to take responsibility for the accident at an earlier time and his affirmative attempt

to hide his involvement in the accident. I further a gree that Appellant’s conduct after the accident was callous. Lastly, it is und isputed that the victim and the victim’s family suffered in agony. In my view, however, the court’s further conclusion that Appellant was a menace to society and was not amenable to rehabilitat ion lacks proper evidentiary support. Appellant pleaded guilty, had no prior record, and wasJ.S43017- 14

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employed. Accordingly, I discern no basis supporting the conclusion that Appellant posed a continuing threat to society or was beyond rehabilitation. While the trial court cited other proper reasons for d eparting from the Sentencing Guidelines, I cannot conclude that the trial court’s reliance upon the unsupported finding that Appellant poses a threat to society and is not amenable to rehabilitation was harmless in light of its decision to impose the statutory maximum sentence. Thus, I would vacate the ju dgment of sentence and remand for resentencing.