J.S43017-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 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 affirm 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 guilty to the accidents 

involving death count, and the summary count was dismissed after 

sentencing. As to accidents involving death, the Sentencing Guidelines 

recommended a standard minimum range term of imprisonment of three to 
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twelve months with an addition 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 the trial court 

impose a mandatory minimum sentence of one year based on mitigating 

factors. N.T., 8/2/13, at 11-14. Appellant stressed the accidental nature of 

the collision, which occurred while the victim was “walking along” a major 

thoroughfare at 2:53 a.m. on July 4, 2012. Appellant also emphasized that 

he had no prior record, that his guilty plea evinced his taking responsibility 

for the accident, and that he expressed remorse to the family of the victim. 

The Commonwealth recommended the statutory maximum sentence.1

 Id.

at 15-20. The Commonwealth reminded the court of the victim’s family’s 

testimony regarding the agony of caring for the victim before his death 

nearly 8 months after the accident2and 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 grade 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 trial court relied upon 

it when sentencing. 

2 The victim’s family, through the victim’s sister, asked the trial court to 

impose a maximum sentence “as any time [Appellant] spent incarcerated is 

nothing compared to what Tommy [the victim] and my family experienced 

and will for a lifetime.” Id. at 8. 
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The trial court, when fashioning its sentence, found that Appellant’s 

“action of leaving the scene was callous and inhumane,” that he “took overt 

actions to avoid detection and prosecution,” and that his 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 apprehend Appellant, 

that “[s]ociety has also suffered greatly[.]” Id. at 26-27. 

The court 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 imposition 

of stiff penalties, that is penalties that have real, not semiimaginary consequences. 

 

Id. 

 Following a review of the record, I find a proper evidentiary basis for 

the court to reject Appellant’s claims of remorse based on 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 agree that Appellant’s 

conduct after the accident was callous. Lastly, it is undisputed 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 rehabilitation lacks proper 

evidentiary support. Appellant pleaded guilty, had no prior record, and was 
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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 departing 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 judgment of 

sentence and remand for resentencing.