J. S09001/15

2015 PA Super 151

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JAMES L. BEST, : No. 1628 WDA 2012

:

 Appellant :

Appeal from the Judgment of Sentence, June 5, 2012,

in the Court of Common Pleas of Bedford County

Criminal Division at No. CP-05-CR-0000033-2011

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ. 

OPINION BY FORD ELLIOTT, P.J.E.: FILED JULY 16, 2015

Appellant appeals the judgment of sentence imposed following his 

several driving under the influence (“DUI”) related convictions. Finding no 

error, we affirm.

On the evening of December 14, 2010, appellant was involved in a 

head-on collision with another vehicle on East Graceville Road in 

Breezewood. When Trooper Matthew J. Bonin approached appellant, 

appellant exhibited a strong odor of alcohol, slurred speech, and bloodshot, 

glassy eyes. (Notes of testimony, 3/6/12 at 170.) Bonin asked appellant 

how much he had had to drink, and appellant replied that he had consumed 

three or four beers. (Id. at 169-170.) Bonin testified that appellant 

admitted to him that he went into the opposite lane of travel, but that it was 

caused by him hitting a patch of ice. (Id. at 168-169.) According to Bonin, 
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appellant failed field sobriety tests. (Id. at 170-172.)1 Bonin then 

investigated appellant’s car. Bonin did not possess a search warrant at the 

time, but subsequently presented an application to a magisterial district 

judge and was granted a warrant. (See Application for Search Warrant and 

Authorization, 12/15/10.) In appellant’s vehicle, Bonin observed several 

open beer cans and a whisky flask. (Id. at 173.) When Bonin opened the 

flask, he observed a liquid that had an odor of alcohol. (Id. at 175-176.) 

Bonin also found a pipe and small amount of marijuana in the console of the 

vehicle. (Id. at 176-177.) Appellant refused chemical testing. (Id. at 191.) 

When Bonin later went to appellant’s home to serve an arrest warrant, he 

overheard appellant telling his mother that he had consumed five or 

six beers. (Id. at 193.) Bonin testified that it was his opinion that appellant 

was under the influence of alcohol, impaired, and incapable of safe driving. 

(Id. at 192.)

Appellant stipulated at trial that his license was suspended at the time 

of the accident, and that he had been designated as a “habitual offender” by 

the Pennsylvania Department of Transportation as a result of prior offenses. 

(Id. at 197-198.) No details were given to the jury as to the nature of those 

prior offenses.

 

1 A video of the tests recorded by a mobile video recorder in the police 

vehicle was played for the jury. (Id. at 186-187.)
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Testimony was also presented from the teenage occupants of the other 

vehicle. Kyle Frankenberry was driving and his girlfriend McKenna Sipes was 

in the passenger seat. (Id. at 113.) Frankenberry testified that just before 

the crash, he attempted to swerve to avoid the collision. (Id. at 113, 115.) 

Frankenberry was trapped in his vehicle after the crash and Sipes was 

unconscious. (Id. at 116.) Frankenberry was taken by ambulance to the 

hospital. (Id. at 117-118.) He remembered his dislocated leg being put 

back in place in his hip, but he did not recall the subsequent surgery. (Id.

at 118.) Frankenberry spent seven days at this hospital and then five 

additional days at another hospital. (Id. at 119.) Finally, Frankenberry 

described the ongoing ill effects that the accident has had on his life. (Id. at 

119-122.)

Sipes also testified. She remembered riding in the car that night, but 

almost nothing about the accident; her first memory was hearing one of the 

EMT’s talking to her in the car. (Id. at 144-148.) She did state that neither 

she nor Frankenberry had had anything to drink that night and that 

Frankenberry was driving normally. (Id. at 146-147.) Sipes was in the 

hospital for six days and had hip surgery. (Id. at 149.) Sipes also 

described the ill effects that the accident has had on her life. (Id. at 

149-153.)

Dr. Corey Schutt testified as to his treatment of both Frankenberry and 

Sipes for a dislocated hip and fractured pelvis. (Id. at 76-80.) He described 
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the injuries as serious and the surgery as intense. (Id. at 76-77.) Another 

trauma surgeon who treated the victims, Dr. Simon Lampard, also described 

the victims’ various injuries. (Id. at 86-100.)

On March 7, 2012, the jury found appellant guilty of (2) counts of 

aggravated assault by vehicle while DUI; (1) count of accidents involving 

death or personal injury while not properly licensed; (1) count DUI general 

impairment; (1) count of habitual offenders; (1) count of reckless driving; 

(1) count of restriction on alcoholic beverages; (1) count driving under 

suspension, DUI related; (1) count driving on roadways laned for traffic; 

(1) count careless driving; (1) count of possession of a small amount of 

marijuana for personal use; and (1) count of possession of drug 

paraphernalia.2 On May 7, 2012, the court imposed an aggregate sentence 

of 59 months’ to 20 years’ imprisonment. Post-sentence motions were 

denied on September 17, 2012, and a timely notice of appeal was filed on 

October 11, 2012.

Appellant raises the following issues on appeal:

I. APPELLANT CHALLENGES THE SUFFICIENCY 

OF THE EVIDENCE TO CONVICT HIM OF THE 

OFFENSES OF AGGRAVATED ASSAULT BY 

VEHICLE WHILE DUI, 75 Pa.C.S.A. § 3735.1, 

COUNTS 1 AND 2, AS THE EVIDENCE 

ADDUCED AT TRIAL FAILED TO PROVE: 

(a) CAUSATION, NAMELY, FAILED TO PROVE 

IN EACH COUNT THAT APPELLANT CAUSED 

 

2 75 Pa.C.S.A. §§ 3735.1(a); 3742.1(a); 3802(a)(1); 6503.1; 3736(a); 

3809(a); 1543(b)(1); 3309; 3714(a), respectively, and 35 P.S. § 780-

113(a)(31) and (a)(32), respectively.
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SERIOUS BODILY INJURY TO THE VICTIM IN 

EACH COUNT AND/OR THAT THE ALLEGED 

VIOLATION OF 75 Pa.C.S.A. § 3802 CAUSED 

SERIOUS BODILY INJURY TO THE VICTIM IN 

EACH COUNT; (b) INTENT, NAMELY, 

NEGLIGENCE, IN EACH COUNT, AS 

PROVIDED AT 18 Pa.C.S.A. § 302 (b) 

AND/OR (c) IN EACH COUNT, FOR THE 

NECESSARY LESSER-INCLUDED OFFENSE OF 

AN ALLEGED VIOLATION OF 75 Pa.C.S.A. 

§ 3802, AS PROVIDED AT 75 Pa.C.S.A. 

§ 3802(a)(1), THAT APPELLANT IMBIBED A 

SUFFICIENT AMOUNT OF ALCOHOL SUCH 

THAT HE WAS RENDERED INCAPABLE OF 

SAFE DRIVING, OPERATING OR BEING IN 

ACTUAL PHYSICAL CONTROL OF THE 

MOVEMENT OF THE VEHICLE.

II. APPELLANT CHALLENGES THE SUFFICIENCY 

OF THE EVIDENCE TO CONVICT HIM OF THE 

OFFENSE OF ACCIDENT INVOLVING DEATH 

OR PERSONAL INJURY WHILE NOT PROPERLY 

LICENSED, 75 Pa.C.S.A. § 3742.1(a), 

COUNT 3, AS THE EVIDENCE ADDUCED AT 

TRIAL FAILED TO PROVE: (a) CAUSATION, 

NAMELY, THAT APPELLANT CAUSED THE 

ACCIDENT TO OCCUR AND/OR THAT 

APPELLANT’S SUSPENDED/REVOKED 

OPERATING PRIVILEGE HAD ANY CAUSATIVE 

EFFECT UPON THE ACCIDENT; AND/OR 

(b) INTENT, NAMELY, NEGLIGENCE AS 

PROVIDED IN 18 Pa.C.S.A. § 302(b).

III. APPELLANT CHALLENGES THE SUFFICIENCY 

OF THE EVIDENCE TO CONVICT HIM OF THE 

OFFENSE OF POSSESSION OF A SMALL 

AMOUNT OF MARIJUANA, 35 P.S. § 780-113 

(a)(31)(i), COUNT 4, AS THE EVIDENCE 

ADDUCED AT TRIAL FAILED TO PROVE THAT 

APPELLANT POSSESSED, ACTUALLY OR 

CONTRUCTIVELY [sic], MARIJUANA.

IV. APPELLANT CHALLENGES THE SUFFICIENCY 

OF THE EVIDENCE TO CONVICT HIM OF THE 
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OFFENSE OF POSSESSION OF DRUG 

PARAPHERNALIA, 35 P.S. § 780-113(a)(32), 

COUNT 5, AS THE EVIDENCE ADDUCED AT 

TRIAL FAILED TO PROVIDE THAT APPELLANT 

POSSESSED, ACTUALLY OR 

CONSTRUCTIVELY, DRUG PARAPHERNALIA.

V. APPELLANT CHALLENGES THE SUFFICIENCY 

OF THE EVIDENCE TO CONVICT HIM OF THE 

OFFENSE OF DUI-GENERAL IMPAIRMENTREFUSAL, 75 Pa.C.S.A. § 3802(a)(1), AS THE 

EVIDENCE AT TRIAL FAILED TO PROVE: 

(a) THAT APPELLANT IMBIBED A SUFFICIENT 

AMOUNT OF ALCOHOL SUCH THAT HE WAS 

RENDERED INCAPABLE OF SAFE DRIVING, 

OPERATING OR BEING IN ACTUAL PHYSICAL 

CONTROL OF THE MOVEMENT OF THE 

VEHICLE; AND (b) THAT APPELLANT 

REFUSED TO SUBMIT TO CHEMICAL 

TESTING.

VI. APPELLANT CHALLENGED [sic] THE 

SUFFICIENCY OF THE EVIDENCE TO CONVICT 

HIM OF THE OFFENSE OF HABITUAL 

OFFENDERS, 75 Pa.C.S.A. § 6503.1, COUNT 

7, AS THE EVIDENCE ADDUCED AT TRIAL 

FAILED TO PROVE APPELLANT HAD 

ACCUMULATED THE REQUISITE NUMBER OF 

CONVICTIONS FOR SEPARATE AND DISTINCT 

OFFENSES DESCRIBED AND ENUMBERATED 

[sic] IN 75 Pa.C.S.A. 1542(b) WITHIN A FIVE 

(5) YEAR PERIOD.

VII. APPELLANT CHALLENGES THE SUFFICIENCY 

OF THE EVIDENCE TO CONVICT HIM OF THE 

OFFENSE OF RECKLESS DRIVING, 

75 Pa.C.S.A. § 3736(a), COUNT 8, AS THE 

EDVIDENCE [sic] ADDUCED AT TRIAL FAILED 

TO PROVE THAT APPELLANT ACTED WITH 

WANTON OR WILLFUL DISREGARD FOR THE 

SAFETY OF PERSONS OR PROPERTY.

VIII. APPELLANT CHALLENGES THE SUFFICIENCY 

OF THE EVIDENCE TO CONVICT HIM OF THE 
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OFFENSE OF RESTRICTION ON ALCOHOLIC 

BEVERAGES, 75 Pa.C.S.A. § 3809(a), COUNT 

9, AS THE EVIDENCE ADDUCED AT TRIAL 

FAILED TO PROVE THAT APPELLANT 

POSSESSED, ACTUALLY OR 

CONSTRUCTIVELY, AN OPEN BEVERAGE 

CONTAINER OR CONSUMED A CONTROLLED 

SUBSTANCE OR ALCOHOLIC BEVERAGE IN A 

MOTOR VEHICLE WHILE THE MOTOR 

VEHICLE WAS LOCATED ON A HIGHWAY IN 

THIS COMMONWEALTH.

IX. APPELLANT CHALLENGES THE SUFFICIENCY 

OF THE EVIDENCE TO CONVICT HIM OF THE 

OFFENSE OF DRIVING WHILE OPERATING 

PRIVILEGE IS SUSPENDED OR REVOKED, 

75 Pa.C.S.A. § 1543 (b)(1.1), COUNT 10, AS 

THE EVIDENCE ADDUCEDC [sic] AT TRIAL 

FAILED TO PROVE APPELLANT HAD ANY 

AMOUNT OF ALCOHOL OR CONTROLLED 

SUBSTANCE IN HIS BLOOD.

X. APELLANT [sic] CHALLENGES THE 

SUFFICIENCY OF THE EVIDENCE TO CONVICT 

HIM OF THE OFFENSE OF DRIVING ON 

ROADWAYS LANED FOR TRAFFIC, 

75 Pa.C.S.A. § 3309(1), COUNT 11, AS THE 

EVIDENCE ADDUCED AT TRIAL FAILED TO 

PROVE THAT APPELLANT FAILED TO 

MAINTAIN THE VEHICLE AS NEARLY AS 

PRACTICABLE ENTIRELY WITHIN A SINGLE 

LANE AND/OR THAT APPELLANT MOVED 

FROM THE LAND WITHOUT FIRST 

ASCERTAINING THAT THE MOVEMENT COULD 

BE DONE SAFELY.

XI. APPELLANT CHALLENGES THE SUFFICIENCY 

OF THE EVIDENCE TO CONVICT HIM OF THE 

OFFENSE OF CARELESS DRIVING, 

75 Pa.C.S.A. § 3714, COUNT 12, AS THE 

EVIDENCE ADDUCED AT TRIAL FAILED TO 

PROVE THAT APPELLANT ACTED IN 

CARELESS DISREGARD FOR THE SAFETY OF 

PERSONS OR PROPERTY.
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XII. APPELLANT ASSERTS THAT THE JURY’S 

VERDICTS ON COUNTS 1, 2, AND 3 WERE 

AGAINST THE WEIGHT OF THE EVIDENCE 

INASMUCH AS NO CREDIBLE TESTIMONY 

WAS PRESENTED ON CAUSATION, 

APPELLANT’S INTENT, THE VICTIMS’ 

SERIOUS BODILY INJURIES, THE 

ALLEGATION THAT APPELLANT HAD IMBIBED 

A SUFFICIENT AMOUNT OF ALCOHOL TO 

RENDER HIM IN CAPABLE [sic] OF SAFE 

DRIVING OR OPERATION OF THE VEHICLE 

AND THE TESIMONY [sic] PRESENTED WAS 

NOT CREDIBLE.

XIII. APPELLANT ASSERTS THAT THE JURY’S 

VERDICT ON COUNT 5 WAS AGAINST THE 

WEIGHT OF THE EVIDENCE INASMUCH AS 

NO CREDIBLE TESTIMONY WAS PRESENTED 

AS TO APPELLANT’S POSSESSION, ACTUALLY 

OR CONSTRUCTIVELY, OF DRUG 

PARAPHERNALIA AND THE TESTIMONY 

PRESENTED WAS NOT CREDIBLE.

XIV. APPELLANT ASSERTS THE JURY’S VERDICT 

ON COUNT 7 WAS AGAINST THE WEIGHT OF 

THE EVIDENCE INASMUCH AS NO CREDIBLE 

TESTIMONY WAS PRESENTED THAT 

APPELLANT HAD ACCUMULATED THE 

REQUISITE NUMBER OF CONVICTIONS FOR 

SEPARATE AND DISTENCT [sic] OFFENSES 

DESCRIBED AND ENUMERATED IN 

75 Pa.C.S.A. § 1542(b) WITHIN A FIVE (5) 

YEAR PERIOD.

XV. APPELLANT ASSERTS THAT THE COURT’S 

VERDICT ON COUNT 6 WAS AGAINST THE 

WEIGHT OF THE EVIDENCE INASMUCH AS 

NO CREDIBLE TESTIMONY WAS PRESENTED 

THAT APPELLANT POSSESSED, ACTUALLY OR 

CONSTRUCTIVELY, MARIJUANA.

XVI. APPELLANT ASSERTS THAT THE COURT’S 

VERDICT ON COUNT 8 WAS AGAINST THE 
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WEIGHT OF THE EVIDENCE INASMUCH AS 

NO CREDIBLE TESTIMONY WAS PRESENTED 

THAT APPELLANT ACTED WITH A WANTON 

OR WILLFUL DISREGARD FOR THE SAFETY 

OF PERSONS OR PROPERTY.

XVII. APPELLANT ASSERTS THAT THE COURT’S 

VERDICT ON COUNT 9 WAS AGAINST THE 

WEIGHT OF THE EVIDENCE INASMUCH AS 

NO CREDIBLE TESTIMONY WAS PRESENTED 

THAT APPELLANT POSSESSED, ACTUALLY OR 

CONSTRUCTIVELY, AN OPEN ALCOHOLIC 

BEVERAGE CONTAINER OR CONSUMED A 

CONTROLLED SUBSTANCE OR ALCOHOLIC 

BEVERAGE IN A MOTOR VEHICLE WHILE THE 

MOTOR VEHICLE WAS LOCATED ON A 

HIGHWAY IN THIS COMMONWEALTH.

XVIII. APPELLANT ASSERTS THE COURT’S VERDICT 

ON COUNT 10 WAS AGAINST THE WEIGHT 

OF THE EVIDENCE INASMUCH AS NO 

CREDIBLE TESTIMONY [WAS] PRESENTED 

THAT APPELLANT HAD ANY AMOUNT OF 

ALCOHOL OR CONTROLLED SUBSTANCE IN 

HIS BLOOD.

XIX. APPELLANT ASSERTS THAT THE COURT’S 

VERDICT ON COUNT 11 WAS AGAINST THE 

WEIGHT OF THE EVIDENCE INASMUCH AS 

NO CREDIBLE TESTIMONY WAS PRESENTED 

THAT APPELLANT FAILED TO MAINTAIN THE 

VEHICLE AS NEARLY AS PRACTICABLE 

ENTIRELY WITHIN A SINGLE LANE AND/OR 

THAT APPELLANT MOVED FROM THE LANE 

WITHOUT FIRST ASCERTAINING THAT THE 

MOVEMENT COULD BE DONE SAFELY.

XX. APPELLANT ASSERTS THAT THE COURT’S 

VERDICT ON COUNT 12 WAS AGAINST THE 

WEIGHT OF THE EVIDENCE INASMUCH AS 

NO CREDIBLE TESTIMONY WAS PRESENTED 

THAT APPELLANT ACTED IN CARELESS 

DISREGARD FOR THE SAFETY OF PERSONS 

OR PROPERTY.
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XXI. AS SET FORTH IN PARAGRAPHS 17, 18 AND 

19 OF THE OMNIBUS PRE-TRIAL MOTION 

FOR RELIEF, FILED OF RECORD ON MARCH 1, 

2012, WHICH ARE INCORPORATED HEREIN 

BY REFERENCE, AND RENEWED AT TRIAL, 

APPELLANT WAS PREJUDICED BY THE 

EVIDENCE OF HIS PRIOR RECORD INCIDENT 

TO THE PROOF OF COUNTS 3 7 AND 10 IN 

THE TRIAL OF THE UNSEVERED COUNTS 1, 

2, 4, 5 AND 6, AND THE COURT ABUSED ITS 

DISCRETION IN FAILING TO GRANT 

SEVERANCE.

XXII. AS SET FORTH IN PARAGRAPHS 7, 8 AND 9 

OF THE OMNIBUS PRE-TRIAL MOTION, FILED 

OF RECORD ON MARCH 1, 2012, WHICH ARE 

INCOPORATED [sic] HEREIN BY REFERENCE, 

AND RENEWED AT TRIAL, THE COURT ERRED 

BY OMITTING TO PROPERLY RULE ON THE 

SUPPRESSION MOTION FOR THE VEHICLE 

SEARCH AND TO SUPPRESS THE EVIDENCE 

OF SUCH SEARCH AND THE FRUITS 

THEREOF, INASMUCH AS THE WARRANTLESS 

SEARCH OF THE VEHICLE WAS NOT SUPPORT 

[sic] BY EXIGENCY OR OTHER SUFFICIENT 

BASIS; INCLUDING, WITHOUT LIMITATION, 

THE OFFICER’S OBSERVATION OF A SINGLE 

BLUE PILL.

XXIII. AS SET FORTH IN PARAGRAPHS 7, 8, 9, 11, 

13 AND 14 OF THE OMNIBUS PRE-TRIAL 

MOTION, FILED OF RECORD ON MARCH 1, 

2012, WHICH ARE INCORPORATED HEREIN 

BY REFERENCE, AND RFENEWED [sic] AT 

TRIAL, THE COURT ERRED BY OMITTING TO 

PROPERLY RULE ON THE SUPPRESSION 

MOTION FOR THE SEARCH WARRANT AND TO 

SUPPRESS THE EVIDENCE OF SUCH SEARCH 

AND THE FRUITS THEREOF, INASMUCH AS 

THE SEARCH WARRANT’S AFFIDAVIT 

DEPENDED UPON TAINTED INFORMATION 

AND FAILED TO STATE PROBABLE CAUSE.
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XXIV. AS SET FORTH IN PARAGRAPHS 15 AND 16 

OF THE OMNIBUS PRE-TRIAL MOTION, FILED 

OF RECORD ON MARCH 1, 2012, WHICH ARE 

INCORPORATED HEREIN BY REFERNCE [sic], 

AND RENEWED AT TRIAL, THE COURT ERRED 

BY OMITTING TO PROPERLY RULE ON THE 

SUPPRESSION MOTION FOR THE 

STATEMENTS AND TO SUPPRESS THE 

EVIDENCE OF SUCH STATEMENTS AND THE 

FRUITS THEREOF, INASMUCH AS, UNDER 

THE TOTALITY OF THE CIRCUMSTANCES, THE 

ORAL STATEMENTS WERE CUSTODIAL, AND 

OBTAINED WITHOUT MIRANDA WARNINGS, 

AND INVOLUNTARY.

XXV. THE COURT ERRED BY DENYING 

APPELLANT’S REQUEST BOTH AT TRIAL TO 

RE-OPEN THE CASE TO ALLOW APPELLANT 

TO PRESENT A MATERIAL WITNESS BY 

DENYING APPELLANT’S POST-SENTENCE 

REQUEST FOR A NEW TRIAL BASED UPON 

SAID ISSUE.

XXVI. THE COURT ERRED BY PERMITTING THE 

COMMONWEALTH TO AMEND THE CRIMINAL 

INFORMATION TO INCLUDE AN ADDITIONAL 

COUNT OF AGGRAVATED ASSAULT BY 

VEHICLE WHILE DUI, A COUNT OF 

POSSESSION OF SMALL AMOUNT, AND A 

COUNT OF POSSESSION OF DRUG 

PARAPHERNALIA AS SAID AMENDMENTS 

CAUSED PREJUDICE TO DEFENDANT.

XXVII. THE COURT ABUSED ITS DISCRETION AND 

ERRED BY MISCALCULATING APPELLANT’S 

PRIOR RECORD SCORE WITH RESPECT TO 

APPELLANT’S PRIOR CONVICTIONS 

INASMUCH AS APPELLANT ASSERTS THAT 

THIS PRIOR RECORD SHOULD HAVE BEEN 

CALCULATED AS A ONE (1), AND BY FAILING 

TO GIVE PROPER CONSIDERATION TO 

APPELLANT’S REHABILITATIVE NEEDS.

Appellant’s brief at 7-16.
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Before addressing the multitude of issues raised on appeal, we find it 

necessary to reiterate former Justice Sandra Newman’s admonishment to all 

appellate advocates who labor under the misguided belief that raising as 

many issues as possible constitutes effective appellate advocacy:

The approach to appellate advocacy embarked on by 

present counsel for Appellant brings to mind the 

words of the Honorable Ruggero J. Aldisert of the 

United States Court of Appeals for the Third Circuit:

With a decade and a half of federal 

appellate court experience behind me, I 

can say that even when we reverse a 

trial court it is rare that a brief 

successfully demonstrates that the trial 

court committed more than one or two 

reversible errors. I have said in open 

court that when I read an appellant’s 

brief that contains ten or twelve points, a 

presumption arises that there is no merit 

to any of them . . . [and] it is [this] 

presumption . . . that reduces the 

effectiveness of appellate advocacy.

Aldisert, “The Appellate Bar: Professional 

Competence and Professional Responsibility-A View 

From the Jaundiced Eye of the Appellate Judge,” 

11 Cap. U.L. Rev. 445, 458 (1982) (emphasis in 

original). 

Though much quoted by members of the judiciary, 

this passage often “rings hollow,” as demonstrated 

by the present case. While we certainly understand 

the duty of the attorney to be a zealous advocate, 

we pose that conduct such as what we presently 

encounter does not advance the interests of the 

parties and, if anything, is a disservice to the client. 

See, e.g., United States v. Hart, 693 F.2d 286, 

287 (3d Cir.1982) (“[b]ecause of the inordinate 

number of meritless objections pressed on appeal, 

spotting the one bona fide issue was like finding a 
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needle in a haystack”); also Commonwealth v. 

Ellis, 534 Pa. 176, 626 A.2d 1137, 1140 (1993) 

(“[w]hile criminal defendants often believe that the 

best way to pursue their appeals is by raising the 

greatest number of issues, actually, the opposite is 

true: selecting the few most important issues 

succinctly stated presents the greatest likelihood of 

success”). As observed by Justice Robert H. 

Jackson:

Legal contentions, like the currency, 

depreciate through over-issue. The mind 

of an appellate judge is habitually 

receptive to the suggestion that a lower 

court committed an error. But 

receptiveness declines as the number of 

assigned errors increases. Multiplicity 

hints at lack of confidence in any one . . . 

[E]xperience on the bench convinces me

that multiplying assignments of error 

will dilute and weaken a good case

and will not save a bad one.” 

Jackson, “Advocacy Before the United States 

Supreme Court,” 25 Temple L.Q. 115, 119 (1951) 

(emphasis supplied). See also Smith v. Murray, 

477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 

(1986) (“Th[e] process of winnowing out weaker 

arguments on appeal and focusing on those more 

likely to prevail, far from being evidence of 

incompetence, is the hallmark of effective appellate 

advocacy”); Jones v. Barnes, 463 U.S. at 745, 751-

52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) 

(observing that “[e]xperienced advocates since time 

beyond memory emphasized the importance of 

winnowing out weaker arguments on appeal and 

focusing on one central issue if possible, or at most 

on a few key issues”); Buehl v. Vaughn, 166 F.3d 

163, 174 (3d Cir.1999) (commenting that “[o]ne 

element of effective appellate strategy is the 

exercise of reasonable selectivity in deciding which 

arguments to raise”). Though we are mindful of the 

ramifications of our decisions in capital cases, no 

circumstance gives carte blanche for the borderline 
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abuse of the legal system as represented by the 

conduct of Appellant’s present attorney in this 

matter.

Commonwealth v. Robinson, 864 A.2d 460, 479-480 n.28 (Pa. 2004), 

cert. denied, Robinson v. Pennsylvania, 546 U.S. 983 (2005).

This form of appellate advocacy is a disservice to court and client alike. 

It not only creates a presumption that there are no issues of merit, it also 

invites cursory review. With these thoughts in mind, we turn to the issues 

on appeal.

In his first eleven issues, appellant challenges the sufficiency of the 

evidence as to each of his twelve convictions. Our standard of review is as 

follows:

The standard we apply in reviewing the sufficiency of 

the evidence is whether viewing all the evidence 

admitted at trial in the light most favorable to the 

verdict winner, there is sufficient evidence to enable 

the fact-finder to find every element of the crime 

beyond a reasonable doubt. In applying [the above] 

test, we may not weigh the evidence and substitute 

our judgment for the fact-finder. In addition, we 

note that the facts and circumstances established by 

the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder 

unless the evidence is so weak and inconclusive that 

as a matter of law no probability of fact may be 

drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proving 

every element of the crime beyond a reasonable 

doubt by means of wholly circumstantial evidence. 

Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually 

received must be considered. Finally, the [finder] of 

fact while passing upon the credibility of witnesses 
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and the weight of the evidence produced, is free to 

believe all, part or none of the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014), quoting 

Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa.Super. 2014) (citations 

omitted; bracketed material in original).

In Issue I, appellant challenges the sufficiency of the evidence as to 

aggravated assault by vehicle while DUI. This offense is defined as follows:

(a) Offense defined.--Any person who 

negligently causes serious bodily injury to 

another person as the result of a violation of 

section 3802 (relating to driving under 

influence of alcohol or controlled substance) 

and who is convicted of violating section 3802 

commits a felony of the second degree when 

the violation is the cause of the injury.

75 Pa.C.S.A. § 3735.1(a).

McKenna Sipes testified that Kyle Frankenberry was driving normally, 

and Frankenberry testified that he had to swerve to try to avoid colliding 

with appellant’s vehicle. Trooper Bonin testified that appellant admitted 

entering the opposite lane of travel. From this, jurors could conclude that 

Frankenberry was driving his vehicle in the appropriate lane and that 

appellant had negligently entered Frankenberry’s lane of travel. Bonin also 

testified that appellant was under the influence of alcohol and incapable of 

safe travel at the time of the accident. Finally, both Frankenberry and Sipes 

described the continuing effects their injuries have had on their lives, 

including ongoing pain when standing. Both also described their inability to 
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perform athletically as they had in the past. The Vehicle Code describes 

serious bodily injury as follows:

“Serious bodily injury.” Any bodily injury which 

creates a substantial risk of death or which causes 

serious, permanent disfigurement or protracted loss 

or impairment of the function of any bodily member 

or organ.

75 Pa.C.S.A. § 102.

The injuries described by Frankenberry and Sipes amount to 

protracted impairment of their ability to stand and perform athletically. 

Therefore, the jury could have concluded that appellant was driving under 

the influence, that his inebriation caused him to drive negligently, and that 

his negligence resulted in serious bodily injury to two separate victims. 

There was sufficient evidence to support two separate counts of aggravated 

assault by vehicle while DUI.

In Issue II, appellant challenges the sufficiency of the evidence as to 

accidents involving death or personal injury while not properly licensed. This 

offense is defined as follows:

(a) Offense defined.--A person whose operating 

privilege was disqualified, canceled, recalled, 

revoked or suspended and not restored or who 

does not hold a valid driver’s license and 

applicable endorsements for the type and class 

of vehicle being operated commits an offense 

under this section if the person was the driver 

of any vehicle and caused an accident resulting 

in injury or death of any person.

75 Pa.C.S.A. § 3742.1(a).
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From our previous discussion, there was evidence from which the jury 

could conclude that appellant caused the accident at issue and that the 

victims suffered personal injury. Appellant stipulated at trial that his license 

was suspended at the time of the accident. Therefore, the evidence was 

sufficient to support appellant’s conviction for accidents involving death or 

personal injury while not properly licensed.

In Issue III, appellant challenges the sufficiency of the evidence as to 

possession of a small amount of marijuana for personal use. Appellant’s 

argument in this regard questions whether there was any amount of 

marijuana found and whether possession was adequately proven. 

Trooper Bonin testified that the pipe contained a small amount of marijuana. 

That is sufficient to prove that appellant possessed some amount of 

marijuana. We also find that the evidence supported a finding of 

constructive possession by appellant:

Constructive possession is a legal fiction, a pragmatic 

construct to deal with the realities of criminal law 

enforcement. Constructive possession is an 

inference arising from a set of facts that possession 

of the contraband was more likely than not. We 

have defined constructive possession as conscious 

dominion. We subsequently defined conscious 

dominion as the power to control the contraband and 

the intent to exercise that control. To aid 

application, we have held that constructive 

possession may be established by the totality of the 

circumstances.

Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa.Super. 2014), quoting 

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super.2012), appeal 
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denied, 63 A.3d 1243 (Pa. 2013) (internal quotation marks and citation 

omitted).

The marijuana was found in the center console of appellant’s vehicle, 

which is immediately beside and well within the reach of appellant. 

Moreover, appellant was the only person in the vehicle. Clearly, appellant, 

and only appellant, had conscious dominion over the marijuana. There was 

sufficient evidence to support appellant’s conviction for possession of a small 

amount of marijuana for personal use.

In Issue IV, appellant challenges the sufficiency of the evidence as to 

possession of drug paraphernalia. Appellant questions whether appellant 

possessed the marijuana pipe that was found. For the reasons previously 

stated, we find that the evidence was sufficient to conclude that appellant 

constructively possessed the marijuana pipe. Thus, there was sufficient 

evidence to support appellant’s conviction for possession of drug 

paraphernalia.

In Issue V, appellant challenges the sufficiency of the evidence as to 

DUI general impairment. Trooper Bonin testified as to the indications that 

appellant was under the influence of alcohol and that he was of the opinion 

that appellant was incapable of safe driving. This is sufficient to support 

appellant’s conviction for DUI general impairment. Appellant’s argument 

points to equivocating testimony by Bonin or to other evidence that 

appellant may not have been under the influence. As such, the argument 
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goes to the weight of the evidence and not the sufficiency. It is well settled 

that in reviewing the sufficiency of the evidence, an appellate court may not 

weigh the evidence and substitute its judgment for the fact-finder. 

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014), 

appeal denied, 95 A.3d 275 (Pa. 2014). Finally, to the extent that 

appellant’s issue questions whether he refused chemical testing, Bonin 

testified that he refused and then signed a document to that effect.

In Issue VI, appellant challenges the sufficiency of the evidence as to 

habitual offenders. Appellant has abandoned this issue on appeal.

In Issue VII, appellant challenges the sufficiency of the evidence as to 

reckless driving. Reckless driving is defined as follows:

(a) General rule.--Any person who drives any 

vehicle in willful or wanton disregard for the 

safety of persons or property is guilty of 

reckless driving.

75 Pa.C.S.A. § 3736(a).

The testimony of Frankenberry and Sipes, as well as Bonin’s testimony 

that appellant admitted entering the opposite lane of travel, is sufficient to 

support appellant’s conviction for reckless driving.

In Issue VIII, appellant challenges the sufficiency of the evidence as to 

restriction on alcoholic beverages. This offense is defined as follows:

(a) General rule.--Except as set forth in 

subsection (b), an individual who is an 

operator or an occupant in a motor vehicle 

may not be in possession of an open alcoholic 

beverage container or consume a controlled 
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substance as defined in the act of April 14, 

1972 (P.L.233, No.64), known as The 

Controlled Substance, Drug, Device and 

Cosmetic Act, or an alcoholic beverage in a 

motor vehicle while the motor vehicle is 

located on a highway in this Commonwealth.

75 Pa.C.S.A. § 3809(a) (footnote omitted).

Trooper Bonin testified that appellant had several open beer cans in 

his car. Bonin also testified that he opened the whiskey flask and that it 

contained a liquid with an odor of alcohol. This was sufficient evidence to 

support appellant’s conviction for restriction on alcoholic beverages.

In Issue IX, appellant challenges the sufficiency of the evidence as to 

driving under suspension, DUI related. Appellant has abandoned this issue 

on appeal.

In Issue X, appellant challenges the sufficiency of the evidence as to 

driving on roadways laned for traffic. This offense is defined as follows:

Whenever any roadway has been divided into two or 

more clearly marked lanes for traffic the following 

rules in addition to all others not inconsistent 

therewith shall apply:

(1) Driving within single lane.--A vehicle 

shall be driven as nearly as practicable 

entirely within a single lane and shall not 

be moved from the lane until the driver 

has first ascertained that the movement 

can be made with safety.

75 Pa.C.S.A. § 3309.
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The testimony of Frankenberry and Sipes, as well as Bonin’s testimony 

that appellant admitted entering the opposite lane of travel, is sufficient to 

support appellant’s conviction for driving on roadways laned for traffic.

In Issue XI, appellant challenges the sufficiency of the evidence as to 

careless driving. Careless driving is defined as follows:

(a) General rule.--Any person who drives a 

vehicle in careless disregard for the safety of 

persons or property is guilty of careless 

driving, a summary offense.

75 Pa.C.S.A. § 3714(a).

Again, the testimony of Frankenberry and Sipes, as well as Bonin’s 

testimony that appellant admitted entering the opposite lane of travel, is 

sufficient to support appellant’s conviction for careless driving.

In Issues XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, and XX, appellant 

contends that various of his convictions are against the weight of the 

evidence.3 We note our standard of review:

A motion for a new trial based on a claim that the 

verdict is against the weight of the evidence is 

addressed to the discretion of the trial court. 

Commonwealth v. Widmer, 560 Pa. 308, 319, 744 

A.2d 745, 751-52 (2000); Commonwealth v. 

Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 

(1994). A new trial should not be granted because 

of a mere conflict in the testimony or because the 

judge on the same facts would have arrived at a 

different conclusion. Widmer, 560 Pa. at 319-20, 

744 A.2d at 752. Rather, “the role of the trial judge 

is to determine that ‘notwithstanding all the facts, 

 

3 Appellant has abandoned on appeal the weight of the evidence claims 

raised at Issues XIV and XVIII.
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certain facts are so clearly of greater weight that to 

ignore them or to give them equal weight with all the 

facts is to deny justice.’” Id. at 320, 744 A.2d at 

752 (citation omitted). It has often been stated that 

“a new trial should be awarded when the jury’s 

verdict is so contrary to the evidence as to shock 

one’s sense of justice and the award of a new trial is 

imperative so that right may be given another 

opportunity to prevail.” Brown, 538 Pa. at 435, 648 

A.2d at 1189.

An appellate court’s standard of review when 

presented with a weight of the evidence claim is 

distinct from the standard of review applied by the 

trial court:

Appellate review of a weight claim is a 

review of the exercise of discretion, 

not of the underlying question of 

whether the verdict is against the 

weight of the evidence. Brown, 648 

A.2d at 1189. Because the trial judge 

has had the opportunity to hear and see 

the evidence presented, an appellate 

court will give the gravest consideration 

to the findings and reasons advanced by 

the trial judge when reviewing a trial 

court’s determination that the verdict is 

against the weight of the evidence. 

Commonwealth v. Farquharson, 467 

Pa. 50, 354 A.2d 545 (Pa.1976). One of 

the least assailable reasons for granting 

or denying a new trial is the lower court’s 

conviction that the verdict was or was 

not against the weight of the evidence 

and that a new trial should be granted in 

the interest of justice.

Widmer, 560 Pa. at 321-22, 744 A.2d at 753 

(emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013).
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In these issues, appellant revisits the various evidence presented on 

each conviction and how certain evidence mitigates against conviction. 

However, as noted in Clay, this court does not reweigh the evidence; but 

rather, this court only reviews how the trial court has analyzed the weight of 

the evidence. Consequently, we will not discuss the various evidence as to 

each conviction, but will only review the trial court’s review.

In its opinion, the trial court identified the correct standard by which it 

was to assess the weight of the evidence (“when the jury’s verdict is so 

contrary to the evidence as to shock one’s sense of justice”), and then 

concluded that the jury’s verdict was consistent with the evidence. (Trial 

court opinion, 9/17/12 at 3.) We find that the trial court acted within its 

discretion.

In Issue XXI, appellant argues that the trial court erred in failing to 

sever from his trial the counts pertaining to accidents involving death or 

personal injury while not properly licensed, habitual offenders, and driving 

under suspension, DUI related, because proof of these crimes requires 

revealing to the jury that appellant has committed prior bad acts. Our 

standard of review states, “[w]hether to join or sever offenses for trial is 

within the trial court’s discretion and will not be reversed on appeal absent a 

manifest abuse thereof, or prejudice and clear injustice to the defendant.” 

Commonwealth v. Armstrong, 74 A.3d 228, 233 (Pa.Super. 2013), 

appeal denied, 84 A.3d 1061 (Pa. 2014).
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We find no prejudice or clear injustice to appellant. Appellant’s license 

suspension and habitual offender status were presented to the jury by way 

of stipulation, and no detail of any of appellant’s prior offenses was revealed. 

As for the driving under suspension, DUI related, which would improperly 

reveal to the jury that appellant had previously committed DUI, this was a 

summary offense tried separately by the court.

In Issue XXII, appellant asserts that the trial court erred in failing to 

suppress the fruits of Trooper Bonin’s warrantless vehicle search which 

appellant contends was not supported by exigency or other basis.

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 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 . . . 

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.
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Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014), quoting 

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations 

omitted), cert. denied, Jones v. Pennsylvania, 562 U.S. 832 (2010).

We find that Trooper Bonin had probable cause to search appellant’s 

car. Appellant had just been involved in a vehicular accident and appeared 

to be under the influence of alcohol. As this implicated the violation of 

several offenses, Bonin had probable cause to search the car for further 

evidence of DUI. Our supreme court recently decided that Pennsylvania’s 

automobile exception to the warrant requirement was in accord with current 

federal jurisprudence; that is, that only probable cause and no exigency 

beyond the inherent mobility of a motor vehicle is required to permit a 

warrantless vehicle search. Commonwealth v. Gary, 91 A.3d 102 (Pa. 

2014).4 The trial court properly declined to suppress the evidence here.

In Issue XXIII, appellant argues that the search warrant that was 

subsequently granted for his car was not supported by probable cause and 

the evidence should have been suppressed. Our analysis of the preceding 

issue leads us to conclude that there is no merit here.

 

4 The decision in Gary was decided by a six-justice court. In an Opinion 

Announcing the Judgment of the Court, former Justice McCaffery, speaking 

for former Chief Justice Castille and Justice Eakin, adopted the federal 

automobile exception for warrantless vehicle searches. Chief Justice Saylor 

wrote a Concurring Opinion that joined the lead Opinion in adopting the 

federal rule, but expressed concerns with the adoption of a bright line rule. 

Justice Todd wrote a Dissenting Opinion that was joined by Justice Baer. 

Former Justice Orie Melvin did not participate.
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In Issue XXIV, appellant claims that his on-the-scene statement to 

Trooper Bonin that he had three or four beers and his later statement to his 

mother that he had five or six beers should have been suppressed as he was 

in custody at the time of each statement and had not been given Miranda

warnings.5

Statements made during custodial interrogation are 

presumptively involuntary, unless the accused is first 

advised of her Miranda rights. Commonwealth v. 

DiStefano, 782 A.2d 574, 579 (Pa.Super. 2001), 

appeal denied, 569 Pa. 716, 806 A.2d 858 (2002). 

Custodial interrogation is “questioning initiated by 

law enforcement officers after a person has been 

taken into custody or otherwise deprived of [her] 

freedom of action in any significant way.” Miranda

[v. Arizona], supra [384 U.S. 436] at 444, 86 S.Ct 

[1602] at 1612, 16 L.Ed.2d [694] at 706 [(1966)]. 

“[T]he Miranda safeguards come into play whenever 

a person in custody is subjected to either express 

questioning or its functional equivalent.” 

Commonwealth v. Gaul, 590 Pa. 175, 180, 912 

A.2d 252, 255 (2006), cert. denied, 552 U.S. 939, 

128 S.Ct. 43, 169 L.Ed.2d 242 (2007).

Commonwealth v. Kunkle, 79 A.3d 1173, 1179-1180 (Pa.Super. 2013) 

appeal denied, A.3d (Pa. April 22, 2015), quoting 

Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008).

First, appellant was not in custody at the time he made his statement 

at the accident scene. Trooper Bonin had just arrived at the accident scene 

and was not even aware yet that any crime had occurred when he asked 

appellant how much he had had to drink. Second, it is unclear from the 

 

5 Miranda v. Arizona, 384 U.S. 436 (1966).
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testimony whether Trooper Bonin had yet arrested appellant when he made 

the second statement to his mother at their residence, but there was no 

reason to suppress the second statement either. Appellant was not 

responding to a question from Bonin or any other police officer, but either 

made the statement spontaneously, or made it upon inquiry from his 

mother. (Notes of testimony, 3/6/12 at 193-194.) Thus, even if appellant 

was in custody at the time, he was not being subjected to police 

interrogation. The statements were properly not suppressed.

In Issue XXV, appellant contends that the trial court erred in failing to 

permit the record to be re-opened so that the defense could present an 

unsubpoened defense witness who appeared at court after the record had 

been closed. This witness was Tim College who would have testified that on 

the day of the accident appellant met him at a bar where they each 

consumed one beer and then went to College’s residence where they each 

consumed another beer. (Notes of testimony, 3/7/12 at 197-198.) 

Apparently, appellant was with Mr. College until 4:30 p.m., and the accident 

occurred at 7:30 p.m. (Id. at 198.)

“Under the law of this Commonwealth a trial court has the discretion to 

reopen a case for either side, prior to the entry of final judgment, in order to 

prevent a failure or miscarriage of justice.” Commonwealth v. Baldwin, 8 

A.3d 901, 903 (Pa.Super. 2010), affirmed, 58 A.3d 754 (Pa. 2012), quoting 

Commonwealth v. Tharp, 575 A.2d 557, 558-559 (Pa. 1990). We find no 
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abuse of discretion in the trial court’s choice not to re-open the record. 

College’s testimony carried little exculpatory value because he could not 

account for appellant’s activity between 4:30 and 7:30, a three-hour period 

during which appellant had sufficient time to consume a large amount of 

alcohol.

In Issue XXVI, appellant asserts that the trial court erred in permitting 

the Commonwealth to amend the criminal information to add a second count 

of aggravated assault by vehicle while DUI, possession of a small amount of 

marijuana, and possession of drug paraphernalia.

Relief is only proper where the amendment 

prejudices the defendant. See [Commonwealth v. 

Sinclair, 897 A.2d 1218 (Pa.Super.2006)] at 1223. 

A court must consider a number of factors in 

determining whether an amendment results in 

prejudice:

(1) whether the amendment changes the 

factual scenario supporting the charges; 

(2) whether the amendment adds new 

facts previously unknown to the 

defendant; (3) whether the entire factual 

scenario was developed during a 

preliminary hearing; (4) whether the 

description of the charges changed with 

the amendment; (5) whether a change in 

defense strategy was necessitated by the 

amendment; and (6) whether the timing 

of the Commonwealth’s request for 

amendment allowed for ample notice and 

preparation.

Commonwealth v. Veon, 109 A.3d 754, 768 (Pa.Super. 2015), quoting 

Sinclair.
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We see no prejudice to appellant. The order amending the criminal 

information was dated September 29, 2011, and was entered October 4, 

2011. Trial did not begin until March 6, 2012; thus, appellant had over five 

months to prepare for these new charges. Moreover, as to the most serious 

charge, aggravated assault by vehicle while DUI, appellant was already on 

notice that he had to prepare a defense to an initial count of this offense, 

and any defense to this additional count would likely be nearly identical to 

the initial count. We see no merit here.

In Issue XXVII, appellant contends that the trial court miscalculated 

his prior record score and that his sentence is excessive by failing to give 

proper consideration to his rehabilitative needs. Preliminarily, we observe 

that appellant has abandoned on appeal the issue pertaining to the 

calculation of his prior record score; hence, we are reviewing the 

discretionary aspects of appellant’s sentence only.

Such a challenge must be considered a petition for 

permission to appeal. Commonwealth v. Hoch, 

936 A.2d 515, 518 (Pa.Super. 2007). The Rules of 

Appellate Procedure mandate that, to obtain review 

of the discretionary aspects of a sentence, the 

appellant must include in his brief a Concise 

Statement of Reasons Relied Upon for Allowance of 

Appeal. See Pa.R.A.P. 2119(f). This statement 

must “raise a substantial question as to whether the 

trial judge, in imposing sentence, violated a specific 

provision of the Sentencing Code or contravened a 

‘fundamental norm’ of the sentencing process.” 

Commonwealth v. Flowers, 950 A.2d 330, 331 

(Pa.Super. 2008).

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.Super. 2011).
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Appellant has included in his brief the requisite concise statement in 

which he asserts that the sentence imposed was so manifestly excessive as 

to constitute too severe a punishment. We note that this has been held to 

raise a substantial question. Id. Thus, we will review the discretionary 

aspects of appellant’s sentence.

The trial court announced at sentencing that it had a pre-sentence 

report. (Notes of testimony, 5/7/12 at 3.) As such, the court is presumed 

to have considered all relevant sentencing factors:

Where pre-sentence reports exist, we shall continue 

to presume that the sentencing judge was aware of 

relevant information regarding the defendant’s 

character and weighed those considerations along 

with mitigating statutory factors. A pre-sentence 

report constitutes the record and speaks for itself. 

In order to dispel any lingering doubt as to our 

intention of engaging in an effort of legal purification, 

we state clearly that sentencers are under no 

compulsion to employ checklists or any extended or 

systematic definitions of their punishment procedure. 

Having been fully informed by the pre-sentence 

report, the sentencing court’s discretion should not 

be disturbed. This is particularly true, we repeat, in 

those circumstances where it can be demonstrated 

that the judge had any degree of awareness of the 

sentencing considerations, and there we will 

presume also that the weighing process took place in 

a meaningful fashion. It would be foolish, indeed, to 

take the position that if a court is in possession of 

the facts, it will fail to apply them to the case at 

hand.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

Thus, there is no merit to appellant’s assertion that the court did not 

consider his rehabilitative needs in imposing his sentence. Moreover, the 
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trial court stated that because of positive factors in appellant’s behalf, it 

would not impose an aggravated range sentence. (Notes of testimony, 

5/7/12 at 58.) However, the court also reviewed appellant’s horrendous 

driving record, which included at least one prior DUI, and concluded that any 

sentence less than one at the top of the standard range would depreciate 

the seriousness of the victims’ injuries and the offenses involved. (Id. at 

58-59.) As such, we find no abuse of discretion in appellant’s sentence.

Accordingly, having found no merit to the issues on appeal, we will 

affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/16/2015