J-S06037-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PATRICK R. RAMIREZ,

Appellant No. 2156 MDA 2014

Appeal from the Judgment of Sentence November 3, 2014

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0000361-2014

BEFORE: PANELLA, J., MUNDY, J., AND STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 28, 2016

Appellant Patrick R. Ramirez appeals from the judgment of sentence 

entered by the Honorable Tina Polachek Gartley of the Court of Common 

Pleas of Luzerne County after a jury convicted Appellant of Driving Under the 

Influence of Alcohol or Controlled Substance (DUI), Accidents Involving 

Death or Personal Injury, Careless Driving, and Fail to Stop and Give/Render 

Aid.1 Appellant claims the trial court abused its discretion in imposing a 

sentence in the aggravated range of the sentencing guidelines without 

providing its rationale on the record. After careful review, we affirm.

On September 8, 2013, Appellant, along with his close friends Shane 

Stewart (“the victim”), Derek Marsh, and Stuart Thompson, became 

____________________________________________

1 18 Pa.C.S. § 3802(a)(1) (General Impairment/Incapable of Safe Driving), 

18 Pa.C.S. § 3802(a), 75 Pa.C.S. § 9714(a), 75 Pa.C.S. §3744(a).
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intoxicated after socializing at several bars in Wilkes-Barre in their 

employer-provided truck. In the early hours of the morning, the men 

decided to go to McDonald’s on Kidder Street to eat. While in the parking 

lot, the victim was revving the truck’s engine and squealing the tires. After 

the victim and Appellant engaged in an argument, the victim got out of the 

truck and Appellant moved to the driver’s seat and began to drive towards 

the drive-through window. 

At some point, the victim ran towards the truck and attempted to 

jump onto the moving vehicle as it hit and bounced over a curb. The victim 

fell off the vehicle and landed on the road in the parking lot. An eyewitness, 

Shannon McAndrew, ran towards Appellant’s vehicle to tell him that he hit 

the victim. Appearing not to believe that the victim was injured, Appellant 

approached the victim and asked him to get up. Ms. McAndrew noticed that 

Appellant was impaired as his speech was slurred and slow and he stumbled 

as he walked. Once Appellant observed blood coming from the victim’s 

mouth and nose, Appellant fled the scene of the accident in the truck. Ms. 

McAndrew told police that Appellant ran back to the truck, jumped several 

curbs, and sped out of the parking lot at a high rate of speed before driving 

over the median on the main road. 

Bystanders attended to the victim and called emergency personnel. 

The victim died as a result of his injuries. Officers apprehended Appellant in 

a hotel room that he was sharing with the victim and their friends. Appellant 

refused to take a blood alcohol test.
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A jury convicted Appellant of the aforementioned offenses, but 

acquitted him of Homicide by Vehicle While Driving under the Influence and 

Accidents Involving Death/Injury - Not Properly Licensed. The trial court 

sentenced Appellant to twenty-four to forty-eight months imprisonment on 

the Accidents Involving Death/Personal Injury count, a concurrent term of 

ninety days to six months imprisonment on the DUI count, and fines on the 

remaining counts. Appellant filed a motion to modify his sentence, which 

the trial court subsequently denied. This timely appeal followed.

Appellant’s sole claim on appeal is that the trial court abused its 

discretion in imposing an aggravated range sentence without placing its 

reasons on the record for the deviation. Appellant challenges the 

discretionary aspects of his sentence for which there is no automatic right to 

appeal. 42 Pa.C.S. § 9781(b). 

In order to appeal the discretionary aspects of a sentence, the

defendant must set forth in his brief a statement of the reasons 

relied upon for allowance of appeal, and such statement must 

precede the defendant's argument on the merits. Pa.R.A.P. 

2119(f). Further, the defendant's statement must raise a 

substantial question as to whether the court properly considered 

the sentencing guidelines.

Commonwealth v. Downing, 990 A.2d 788, 792 (Pa. Super. 2010). In 

this case, Appellant has included in his appellate brief a statement of the 

reasons relied upon for allowance of appeal pursuant to Rule 2119(f). 

Moreover, we have previously determined that an appellant raises a 

substantial question when he alleges that the trial court failed to state 
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sufficient reasons on the record when imposing an aggravated range 

sentence. Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super. 

2006). Thus, we may proceed to review the merits of Appellant’s claim.

It is well-settled that “[s]entencing 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.” Commonwealth v. 

Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015). Section 9781 of the 

Judicial Code requires this Court to vacate a sentence and remand for 

resentencing if the sentencing court imposed a sentence that is outside of 

the sentencing guidelines and the sentence is unreasonable. 42 Pa.C.S.A. § 

9781(c)(3). In addition, Section 9781 provides, 

... In reviewing the record the appellate court shall have regard 

for:

(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 presentence investigation.

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

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d). 

While the sentencing court is required to consider the applicable 

ranges set forth in the sentencing guidelines, the sentencing guidelines are 

advisory, and when justified, a court acts well within its discretion to 

sentence outside the recommended ranges. Commonwealth v. Sheller, 
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961 A.2d 187 (Pa. Super. 2008). A trial court is permitted to impose a 

sentence outside the ranges set forth in the sentencing guidelines if the 

court demonstrates its awareness of the sentencing guidelines and states its 

reasons for deviating from the guidelines on the record. Commonwealth v. 

Bowen, 55 A.3d 1254, 1263–64 (Pa. Super. 2012). 

At Appellant’s sentencing hearing, the Commonwealth presented the 

impact testimony of the victim’s mother, Betty Stewart. In response, 

defense counsel called Appellant’s mother and sister as witnesses. Both 

women gave statements that Appellant was a good man that made a 

mistake. However, both women acknowledged “justice has to be done for 

Shane” (the victim). N.T. Sentencing, 11/3/14, at 13-14. Appellant also 

called expert witness Ned Delaney, a licensed psychologist, who found 

Appellant does not exhibit any personality disorders but noted Appellant had 

“incidents of alcohol abuse from time to time.” N.T. at 11. Appellant took 

the stand, taking responsibility for his actions and admitting the victim was 

his best friend.

At the conclusion of the hearing, the trial judge indicated that she had 

reviewed the presentence investigation report and all the testimony given at 

the hearing. The trial judge emphasized that this was not Appellant’s first 

DUI conviction and noted that Appellant was not only intoxicated, but driving 

without a license. Emphasizing that a lesser sentence would “depreciate the 

seriousness of this crime,” the trial court observed that Appellant fled the 
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scene after finding his best friend dying on the ground and refused to take a 

blood test upon his apprehension.

Based on our review of the record, we find that the trial court 

considered all relevant factors and provided adequate reasons for sentencing 

Appellant outside of the sentencing guidelines. As noted above, the trial 

court had the benefit of a pre-sentence investigation report. Prior to 

imposing sentence, the trial court stated that it had considered the 

sentencing guidelines and the nature of this particular crime. The trial judge 

further noted on the record that she was deviating from the guidelines for 

the several reasons, suggesting that Appellant’s “minimal consequences” for 

his first DUI conviction did not successfully help rehabilitate Appellant or 

dissuade him from driving under the influence on another occasion. The trial 

judge emphasized that Appellant tried to avoid legal consequences for his 

actions even when he had caused the fatal injuries of his best friend. 

Accordingly, we conclude that the trial court did not abuse its discretion in 

imposing its aggravated range sentence. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/28/2016