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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NICOLE NOELLE ELINSKY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1912 EDA 2017

Appeal from the Judgment of Sentence February 15, 2017

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

No(s): CP-15-CR-0002383-2015

COMMONWEALTH OF PENNSYLVANIA

v.

NICOLE NOELLE ELINSKY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1913 EDA 2017

Appeal from the Judgment of Sentence February 15, 2017

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

No(s): CP-15-CR-0002853-2015

COMMONWEALTH OF PENNSYLVANIA

v.

NICOLE NOELLE ELINSKY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1914 EDA 2017

Appeal from the Judgment of Sentence February 15, 2017

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

No(s): CP-15-CR-0001053-2016
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COMMONWEALTH OF PENNSYLVANIA

v.

NICOLE NOELLE ELINSKY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1915 EDA 2017

Appeal from the Judgment of Sentence February 15, 2017

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

No(s): CP-15-CR-0001143-2016

BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.: FILED JULY 17, 2018

Nicole Noelle Elinsky appeals from the aggregate judgment of sentence 

of three to six years incarceration, imposed following her convictions at four 

separate dockets for DUI-related offenses. At No. 2016-1053, Appellant 

challenges the denial of her suppression motion seeking application of North 

Dakota v. Birchfield, 136 S.Ct. 2160 (2016) (holding warrantless blood tests 

cannot be justified as a search incident to arrest). Appellant also challenges 

the discretionary aspects of her aggregate sentence. We affirm.1 

We briefly state the underlying facts. Appellant committed the first DUI 

on May 2, 2015 (No. 2015-2383). The officer asked for her consent to draw 

blood, which she declined. Appellant was informed of the consequences of 

____________________________________________

1 Appellant lodged a total of four notices of appeal, one at each criminal 

docket, which we have consolidated. 
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refusal, and continued to refuse. She was later charged with, inter alia, 

refusing blood testing. Regarding her next DUI, on May 10, 2015 (No. 2015-

2853), Appellant initially refused, but ultimately relented and consented to a 

blood draw, which resulted in DUI charges. 

As these cases proceeded on their course, Appellant was arrested for a 

third DUI, which occurred on December 26, 2015 (case 2016-1053). 

Appellant initially pleaded guilty to the two May DUIs on January 5, 2016, and 

sentencing was deferred pending a pre-sentence report. While awaiting 

sentencing, Appellant committed her fourth DUI, occurring March 14, 2016.2 

On June 23, 2016, the United States Supreme Court issued Birchfield. 

Due to that case, and other defects in the initial guilty pleas, Appellant’s guilty 

pleas to the May DUI charges were withdrawn and amended. Appellant 

pleaded guilty to amended charges on August 5, 2016. On that same date, 

Appellant also pleaded guilty to the March 14, 2016 DUI. Sentencing was 

deferred.

At the remaining case, relating to the December 26, 2015 DUI, Appellant 

filed a motion to suppress based on Birchfield, which the trial court denied 

following a hearing. On January 12, 2017, the parties proceeded to a 

____________________________________________

2 Appellant was informed of the consequences of refusal and consented to the 

blood draw. The Commonwealth agreed that the blood evidence was 

inadmissible. 
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stipulated non-jury trial, and the trial court found Appellant guilty of, inter 

alia, DUI with a BAC exceeding .16.

On February 15, 2017, the trial court sentenced Appellant at all four 

cases, and imposed an aggregate term of three to six years incarceration. 

Following the denial of post-sentence motions, Appellant filed timely notices

of appeal in all four cases, which we have consolidated. Appellant complied 

with the order to file a concise statement, and the trial court issued a thorough 

opinion. The matter is ready for review of Appellant’s claims:

I. Did the trial court err in denying Appellant’s motion to suppress

regarding the results of the blood test performed pursuant to a 

warrantless search of Appellant’s blood? Specifically, did the trial 

court err in finding that consent was given voluntarily for the 

warrantless blood draw and the use of the results obtained from 

the search?

II. Did the trial court abuse its discretion when it imposed an 

aggregate sentence of three (3) years to six (6) years on Criminal 

Docket Numbers CP-15-CR-1053-2016, CP-15-CR-1143-2016, 

CP-15-CR-2383-2015, and CP-15-CR-2853-2015? 

Appellant’s brief at 5.

The Birchfield issue applies only to Appellant’s charges at No. 2015-

1053. We apply the following standard of review. 

Our standard of review in addressing a challenge to the denial of 

a suppression motion is limited to determining whether 

the suppression court’s factual findings are supported by the 

record and whether the legal conclusions drawn from those facts 

are correct. Because the Commonwealth prevailed before 

the suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 
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remains uncontradicted when read in the context of the record as 

a whole. Where the suppression court’s factual findings are 

supported by the record, we are bound by these findings and may 

reverse only if the court’s legal conclusions are erroneous. Where, 

as here, the appeal of the determination of the suppression court 

turns on allegations of legal error, the suppression court’s legal 

conclusions are not binding on an appellate court, whose duty it 

is to determine if the suppression court properly applied the law 

to the facts. Thus, the conclusions of law of the courts below are 

subject to our plenary review.

Commonwealth v. Raglin, 178 A.3d 868, 871 (Pa.Super. 2018).

Additionally, where the voluntariness of consent to search is at issue, 

the following principles guide our review.

A search conducted without a warrant is deemed to be 

unreasonable and therefore constitutionally impermissible, unless 

an established exception applies. One such exception

is consent, voluntarily given. The central Fourth Amendment 

inquiries in consent cases entail assessment of the constitutional 

validity of the citizen/police encounter giving rise to the consent; 

and, ultimately, the voluntariness of consent. Where the 

underlying encounter is found to be lawful, voluntariness becomes 

the exclusive focus. 

Commonwealth v. Strickler, 757 A.2d 884, 888–89 (Pa. 2000) (citations 

and footnotes omitted). The voluntariness standard for consent is less 

stringent than the tests governing waiver of other constitutional rights. Id. 

at 889 n.3 (“[W]hile the waiver analysis appropriately applies to safeguard 

constitutional guarantees involving the preservation of a fair trial of criminal 

defendants, it does not pertain to the wholly different protections of the Fourth 

Amendment[.]”) (citations omitted). The test is objective in nature, with 
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some subjective considerations. Strickler, supra at 901 (“Additionally, 

although the inquiry is an objective one, the maturity, sophistication and 

mental or emotional state of the defendant (including age, intelligence and 

capacity to exercise free will), are to be taken into account.”) (citations 

omitted). 

The facts relevant to the Birchfield issue were set forth at the 

suppression hearing as follows. On December 26, 2015, Officer Matthew 

Grandizio responded to a reported accident in a parking lot. Officer Grandizio 

spoke to Appellant, who was driving one of the vehicles. The officer observed 

indicia of intoxication, and, following Appellant’s unsatisfactory performance 

on field sobriety tests, arrested her for DUI. Appellant was transported to the 

hospital in handcuffs, her blood was drawn, and testing revealed that her BAC 

level was .194. Officer Grandizio testified that upon arrest he advised 

Appellant of the process going forward, which included his request for a blood 

draw. Once they arrived at the hospital, the officer again informed her that 

he “need[ed] a sample of your blood.” N.T. Suppression, 12/20/16, at 16. 

Appellant did not balk, complain, or otherwise question the procedures, and 

consented to the blood draw. Critically, the officer did not read Appellant the 

then-standard implied consent form, which set forth the pre-Birchfield

understanding of the consequences attached to refusal, nor did he otherwise 

discuss with her the consequences of refusal. 
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Appellant also testified. She stated that she did not think she had a 

choice in the matter, due to her prior DUI arrests. As a result of those 

incidents, she was familiar with the implied consent form and the penalties for 

refusing. Furthermore, Appellant noted that she had, in fact, refused to 

provide a blood sample during a prior DUI arrest and was charged with refusal. 

Therefore, while Appellant consented to the blood draw, she maintained that 

her “consent . . . was not voluntarily tendered as it was tainted by her 

knowledge of the enhanced penalties related to refusal to submit to chemical 

testing.” Motion to Suppress, 12/7/16, at 2. This argument is continued on 

appeal. 

The trial court opinion provides an extensive analysis, which the 

Commonwealth adopts. Commonwealth’s brief at 14. That analysis rests on 

two points. First, the court concluded that Appellant’s prior experience with 

the implied consent form, and the fact that she was previously charged with 

refusal, “tainted” her later interaction with Officer Grandizio, but that the 

passage of time served to purge the taint. Thus, “the police officer who 

initiated the blood draw request on December 26, 2015 did not exploit the 

prior illegality in order to obtain [Appellant]’s consent[.]” Trial Court Opinion, 

8/16/17, at 21. 

Next, the trial court concluded that the remaining question was whether 

Appellant validly consented to the search, and, examining the totality of the 
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circumstances, determined that her consent was not tainted by her knowledge 

of the implied consent warnings. We quote the trial court’s opinion: 

We note that there is no Pennsylvania case law directly on point 

supporting or opposing [Appellant]’s theory. However, analogizing

[Appellant]’s case to others in which subsequent searches are 

preceded by unconstitutional law enforcement conduct we note 

that there is authority for the proposition that taint from the prior 

unlawful conduct may dissipate and become so attenuated that a

subsequent valid search, or, in a different context, a subsequent 

valid confession after a first un-Mirandized interrogation, is not 

necessarily precluded simply because the [Appellant] was 

subjected previously to some improper government conduct.

We find that the passage of seven (7) months’ time, the fact of a 

different jurisdiction, a different officer, the absence of the 

offensive [implied consent] warnings, the fact that the 

“misconduct” at issue, the former provision of the [implied 

consent] warnings, was at the time a requirement of Pennsylvania 

law and not an error that arose by virtue of imprudent or improper 

actions of the police and that the police officer who initiated the 

blood draw request on December 26, 2015 did not exploit the prior

illegality in order to obtain [Appellant]’s consent, and that the 

[Appellant], as we will discuss below, gave her unqualified and 

volitional consent to the search are sufficient to demonstrate that 

the connection between the prior illegality (the provision of 

[implied consent] warnings seven (7) months earlier) and the 

challenged evidence has become so attenuated as to dissipate any 

taint that might, arguably, have otherwise existed and that, as we 

will discuss below, the BAC evidence at issue sub judice resulted 

from an intervening independent act of free will. 

Trial Court Opinion, 8/16/17, at 19-21.

The trial court then proceeded to examine whether Appellant’s consent 

was voluntary in light of the totality of the circumstances, summarizing its 

findings as follows:
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The factors that weigh in favor of concluding that [Appellant]’s 

consent was not voluntary include that she was in police custody 

when she was asked to consent to the blood test, that she was 

not advised of her right to refuse, and her prior experience with 

the [implied consent] warnings. The factors that weigh in favor of 

concluding that [Appellant]’s consent was voluntary include the 

fact that seven (7) months had passed since her last DUI 

experience; she was in a different jurisdiction from her earlier DUI 

experiences; she was interacting with different officers than she

had during her previous DUI experiences; the officers on 

December 26, 2015 did not read to [Appellant] the [implied 

consent] warnings or connect her refusal to any type of criminal 

or civil penalty; [Appellant] did not inquire about possible 

penalties linked to refusal or express to the officers in any way 

that she did not wish to consent or was hesitant about the 

process; the entire interaction between [Appellant] and the 

officers was cordial and polite with [Appellant] described by the 

officers as very cooperative and pleasant . . . .

. . . . 

The factors demonstrating that [Appellant]’s consent to the DUI 

blood test on December 26, 2015 was voluntary far outweigh the 

limited factors relied upon by the [Appellant] to suggest that her 

consent was involuntary. Consequently, we conclude, as we did at 

the close of the Suppression Hearing held on December 20, 2016, 

that the Commonwealth had met its burden to prove by clear and 

convincing evidence that [Appellant]’s consent to the chemical 

test of her blood for DUI purposes on December 26 2015 was 

voluntarily given under the totality of the circumstances. 

Accordingly, we denied [Appellant]’s suppression motion. 

Trial Court Opinion, 8/16/17, at 33-34 (paragraph break added).

Our standard of review requires that we accept the trial court’s 

credibility determinations. The trial court accepted her testimony that her 

consent in this instance was motivated by knowledge of the consequences for 

refusing, and balanced that knowledge against other factors. 
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Preliminarily, we disagree with the trial court’s analysis regarding “taint” 

and whether that taint was purged by, inter alia, the passage of time and the 

fact that a different officer was involved. A taint analysis necessarily involves 

an act that was unlawful. Here, the trial court refers to the prior warnings as 

the relevant unlawful act that tainted the later interactions, but the fact is that 

the warnings were not unlawful when issued. Thus, Appellant’s knowledge of 

the legal consequences if she were to refuse on the day of her arrest was not 

“tainted” by her prior experience; her knowledge was objectively correct. 

Therefore, the court erred when it stated that “the police officer who initiated 

the blood draw request on December 26, 2015 did not exploit the prior 

illegality[.]” Trial Court Opinion, 8/16/17, at 21. Since there was no prior 

illegality to exploit, this type of taint analysis is inappropriate.3

Simultaneously, the fact that Officer Grandizio did not inform Appellant 

of the consequences of refusal on the day in question is highly relevant, as 

there is a temporal element involved. In Commonwealth v. Haines, 168 

A.3d 231 (Pa.Super. 2017), we remanded for an evidentiary hearing where 

the record was unclear as to whether the appellant consented before or after 

being told the penalties for refusing:

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3 We note that Appellant’s suppression motion uses the word “taint,” but in 

the context of arguing that her consent was coerced because she knew what 

would happen if she refused the request. Appellant did not refer to taint in 

the legal sense discussed by the trial court.
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We agree that if Haines validly consented before being informed 

that he faced enhanced criminal penalties for failure to do so, then 

his consent would not be tainted by the warning and the blood 

test results would be admissible. See Birchfield, 136 S.Ct. at 

2185–86. If, however, he did not consent until after Sergeant 

Dehoff informed him that he would face enhanced criminal 

penalties if he refused to consent, then the trial court did not 

necessarily err in granting his motion to suppress the test results. 

Id.

Id. at 236 (emphasis in original). 

The trial court herein effectively applied Haines by finding that 

Appellant validly consented before any mention of the enhanced penalties that 

would apply if she refused. However, the critical distinction is that, in this 

case, Appellant already knew the consequences of refusal.4 The trial court 

largely dispensed with the need to address that wrinkle by applying a purge 

analysis, which we have rejected supra. Thus, we are required to answer a 

question not addressed by Haines: Does Birchfield apply if the arrestee has 

explicit knowledge5 of the consequences for refusal and consented as a result 

of that knowledge, despite the fact the officer did not directly threaten those 

same penalties? 

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4 There is no indication in Haines that the driver was previously read an 

implied consent form or, like Appellant herein, had been charged with more 

severe offenses due to a prior refusal.

5

It is more accurate to state that Appellant was aware of the probable 

consequences, not the definitive. It is possible, for example, that the officer 

would have requested a breath test instead of a blood test.
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We find that Appellant’s consent was voluntary within the meaning of 

the Fourth Amendment. Birchfield did not foreclose a finding that a 

consensual blood draw was constitutionally valid even when the warnings were 

issued. The case referred to a partially inaccurate warning form which advised 

the driver that his license could be suspended if he refused. The High Court 

remanded for a hearing to determine if his consent was voluntarily given. 

While that remand did not involve a criminal sanction, that instruction 

implicitly rejects the notion that even actually invalid warnings are 

automatically coercive. 

Additionally, we have addressed subjective beliefs as it bears upon 

consent in related circumstances involving post-Birchfield DUIs. In

Commonwealth v. Miller, --- A.3d ----, 2018 WL 2057002 (Pa.Super. 2018), 

we examined a claim wherein the defendant asserted that he had been 

previously been arrested for DUI, and therefore believed that he would face 

increased criminal penalties for refusal. The officer informed Miller of the

correct post-Birchfield consequences. The trial court granted suppression, 

and we reversed, determining that the consent was voluntarily given:

Second, Appellee avers that he subjectively believed he would 

face increased criminal penalties if he refused a blood draw. 

Appellee avers that the last time he was arrested for DUI, prior to 

the Supreme Court of the United States' decision in Birchfield,

he was read the DL–26 form. [T]he DL–26 form included a 

warning that failure to submit to a blood draw would subject a 

defendant to enhanced criminal penalties. Appellee, therefore, 
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argues that the trial court properly considered his subjective belief 

that enhanced criminal consequences attached to the refusal to 

consent to a blood draw.

Appellee's argument fails in light of our Supreme Court's decision 

in Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 

(2000). In Strickler, our Supreme Court explained that, while a 

defendant's subjective belief regarding his or her ability to refuse 

to consent to a search may be considered as part of the totality of 

the circumstances, it is the police officer's express warnings which 

are most important when evaluating subjective belief. See id. at 

901. In other words, incorrect subjective beliefs that are 

contradicted by a police officer's actual statements to a defendant 

diminishes the weight a trial court may place on the defendant's 

errant subjective belief.

Id. at *2.

This case differs from Miller in two material respects. First, the blood 

draw in this case occurred pre-Birchfield. Second, it involves Appellant’s 

subjective knowledge of the consequences, owing to Appellant’s own history, 

which involved prosecution for refusal. However, we believe those are 

distinctions without a difference. In Miller, we stated that the police officer’s 

conduct is the primary focus, and we find that the same is true here. Officer 

Grandizio asked Appellant to provide a blood sample, and she agreed. He did 

not threaten or coerce her by informing her of enhanced criminal penalties in 

the event she declined consent. While it is true that the machinery of the 

State stood poised to impose additional penalties, the officer did not threaten 

or coerce Appellant. See Commonwealth v. Ennels, 167 A.3d 716, 724 

(Pa.Super. 2017) (“Birchfield makes plain that the police may 
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not threaten enhanced punishment for refusing a blood test in order to obtain 

consent; whether that enhanced punishment is (or can be) ultimately imposed 

is irrelevant to the question whether the consent was valid.”) (second 

emphasis in original, citation omitted). We find that the primary focus must 

be on what the officer said and did.

Relatedly, we note that Appellant’s outcome would effectively reward 

persons such as herself, who have previously run afoul of the law. See Miller, 

supra at *3 (“Repeat DUI offenders, owing to past legal transgressions, are 

not entitled to a benefit that would be unavailable to first-time DUI 

offenders.”). A first-time offender who consents before being told the 

consequences has no valid Birchfield claim. Haines. Prior violations of the 

law do not, of course, diminish Appellant’s Fourth Amendment protections, 

but injecting subjective considerations into the voluntariness inquiry 

necessarily provides little guidance for a police officer requesting consent. 

Officer Grandizio had no duty to challenge Appellant’s consent, yet, according 

to Appellant’s argument, he was required to tell her the consequences of 

refusal, despite her consent, to ensure that some subjective belief on her part 

did not motivate her consent. In this respect, the United States Supreme 

Court has rejected the notion that the prosecution must establish that the 

subject of a search knew he had a right to refuse. The Court noted the 

problems with this approach:
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[It] would, in practice, create serious doubt whether consent 

searches could continue to be conducted. There might be rare 

cases where it could be proved from the record that a person in

fact affirmatively knew of his right to refuse—such as a case where 

he announced to the police that if he didn't sign the consent form, 

‘you (police) are going to get a search warrant; or a case where 

by prior experience and training a person had clearly and 

convincingly demonstrated such knowledge. But more commonly 

where there was no evidence of any coercion, explicit or implicit, 

the prosecution would nevertheless be unable to demonstrate that 

the subject of the search in fact had known of his right to refuse 

consent.

Schneckloth v. Bustamonte, 412 U.S. 218, 229–30 (1973) (footnote 

omitted). The same point applies herein: the prosecution would never be

able to demonstrate that Appellant validly consented to a blood draw. It may 

well be that her prior knowledge is why she consented, but there are other 

possibilities. Perhaps she sought to curry favor with the officer, or perhaps 

she felt remorse at having committed so many DUIs in such a short timespan 

and was willing to accept the consequences. The officer did not know why she 

agreed, and the Fourth Amendment did not require him to elicit an 

explanation. We find that her prior knowledge is not dispositive, and is merely 

one factor to consider.6 We agree with the trial court’s analysis with respect 

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6 Unlike the reasonable person test for purposes of the seizure inquiry, which 

presupposes an innocent person and is an objective inquiry, the consent test 

asks whether Appellant herself felt compelled to consent. Thus, the test 

permits subjective considerations, as noted supra. See Commonwealth v. 

Strickler, 757 A.2d 884, 901 (Pa. 2000) (maturity, sophistication, mental or 
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to the balance of the totality of the circumstances, and adopt its analysis as 

our own, which is summarized. See Trial Court Opinion, 8/16/17, at 29-36.

We thus agree with the balance of the trial court’s analysis, set forth supra, 

regarding the totality of the circumstances inquiry. We therefore agree that 

her consent was voluntary. 

We now address Appellant’s challenge to the discretionary aspects of 

her sentence. Such appeals are not of right, and an appellant must invoke 

our jurisdiction by satisfying a four-part test. We examine: 

____________________________________________

emotional state, age, intelligence, among other considerations). Those 

subjective factors, however, are at least objective in nature in the sense their 

existence can be measured and considered. We quote the following 

observation from the United States Court of Appeals for the Tenth Circuit: 

But even assuming some subjective characteristics are relevant to 

the validity of Mr. Zapata's consent, we reject the notion that his 

attitude toward police, from whatever source, can constitute such 

a relevant subjective characteristic. While such attributes as the 

age, gender, education, and intelligence of the accused have been 

recognized as relevant, see Schneckloth v. Bustamonte, 412 

U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973), an 

intangible characteristic such as attitude toward authority is 

inherently unverifiable and unquantifiable.

United States v. Zapata, 997 F.2d 751, 759 (10th Cir. 1993) (some citations 

omitted). 

That Appellant had prior experience with the enhanced penalties form is 

objectively provable, but the effect it had on her thinking is inherently 

unverifiable. We therefore find that her knowledge is but one factor in the 

totality of the circumstances analysis.
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(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. Radecki, 180 A.3d 441, 467 (Pa.Super. 2018) (citation 

omitted, alterations in original).

Appellant filed a timely notice of appeal, preserved her claim in a motion 

to reconsider, and her brief included a separate statement. We find, however, 

that Appellant has failed to present a substantial question. Her statement 

reads: 

The sentence fashioned by the court does not address Appellant's

rehabilitative needs as required by 42 Pa.C.S.A. §9721(b). 

Although the court certainly considered the protection of the 

public, the court did not address Appellant's rehabilitative needs 

as required by 42 Pa.C.S.A. §9721(b). Other than incarceration, 

the court's sentence does not confront the alcoholism at the core 

of the criminal offenses. The court's sentence does not meet 

Appellant's treatment and rehabilitative needs.

Appellant’s brief at 16. 

This cursory statement does not meet the applicable standard. We 

determine whether a substantial question exists on a case-by-basis. The 

appellant must advance “a colorable argument that the sentencing judge's 

actions were either: (1) inconsistent with a specific provision of the Sentencing 

Code; or (2) contrary to the fundamental norms which underlie the sentencing 
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process.” Radecki, supra at 468 (citation omitted). The invocation of 

talismanic phrases cannot satisfy the substantial question requirement. 

Appellant herein claims that the trial court failed to consider her rehabilitative 

needs, but such a claim does not present a substantial question. See 

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013). Additionally, 

Appellant alleges that a litany of mitigating factors warranted a lesser 

sentence. However, “This Court has held on numerous occasions that a claim 

of inadequate consideration of mitigating factors does not raise a substantial 

question for our review.” Commonwealth v. Matroni, 923 A.2d 444, 455 

(Pa.Super. 2007) (quoting Commonwealth v. Bullock, 868 A.2d 516, 529 

(Pa.Super. 2005)). We therefore find that Appellant has failed to present a 

substantial question.

Even if we were to find a substantial question, it is clear that Appellant 

is not entitled to relief. She asserts that the trial court did not consider her 

rehabilitation needs and did not “confront the alcoholism at the core of the 

criminal offenses.” Appellant’s brief at 37. She notes the traumatic 

circumstances of her childhood, sexual abuse inflicted upon her at age 

fourteen, and physical ailments requiring multiple surgeries. These facts were 

presented to the trial court, which clearly weighed them in fashioning its 

sentence:

I have to consider her rehabilitative needs. I have to consider the
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guidelines. I obviously have to consider the mandatory provisions 

that all these cases have. And then I have to consider the factors 

in the sentencing code and balance the background, character and 

circumstances of this defendant with the circumstances of the 

crime, whether there is a need to incarcerate her to prevent future 

offenses by her, as well as the possibility of her rehabilitation. I 

considered and read the PSI. I read everything that defense 

counsel provided me.

It's a very unusual case to have this many DUIs coming from one 

person at one time. It's a rarity in my time on the bench. In doing 

the balancing, I'm going to stay within the standard range of the 

guidelines. I imagine I could easily find aggravation due to the 

circumstances here. I also I imagine, if I did the balancing,

considering her difficult life, as I did read, and how that has 

impacted her, it’s obvious it had a negative impact on her. But 

what’s been exhibited here is she’s dangerous to the community 

and herself, repetitive drinking and driving pattern established 

here. Whether she’s successful in rehabilitation, time will tell. She 

obviously made efforts as evidenced by what was provided to the 

Court by defense counsel. She’s severely in need of treatment. 

She committed some of these offenses while on bail, while 

awaiting sentencing. I think it indicates the degree of her 

problems. Her life at the time here seemed to be out of control. 

She was spinning wildly. The pattern here is dangerous to the 

community.

N.T., Sentencing, 2/15/17, at 34-36.

The trial court did not doubt that Appellant’s history was partially to 

blame for her repeated drinking. However, there was a clear need to balance 

her rehabilitative needs against the safety of the community. As the 

Commonwealth noted, Appellant had been convicted of a total of seven DUI 

offenses at the time of sentencing. Appellant repeatedly endangered her life 

and the lives of others by continuing to drink and drive, and she committed 
J-S10004-18

J-S10005-18

J-S10006-18

J-S10007-18

- 20 -

two DUIs while awaiting sentencing on other DUIs. It is clear that the trial 

court considered Appellant’s arguments as warranting a lesser sentence, and 

we have no license to reweigh its balancing. We would find no abuse of 

discretion.

Judgment of sentence affirmed. 

Judge Nichols joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/18
Circulated 06/29/2018 03:22 PM