HomeMy WebLinkAboutCP-21-CR-0518-2007
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V.: NO. CP-21-CR-0518-2007
:
: CHARGE: 1. RECKLESSLY ENDANGERING
: ANOTHER PERSON
: 2. STALKING
: 3. RETALIATION AGAINST
: WITNESS OR VICTIM
: 4. SIMPLE ASSAULT
: 5. DRIVING UNDER THE
: INFLUENCE, GENERAL
: IMPAIRMENT WITH ACCIDENT
: 6. RECKLESS DRIVING
: (SUMMARY)
:
JOHN W. KICHMAN, JR. :
OTN: K414245-6 : AFFIANT: CHIEF JAMES STONER
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
By Ebert, Jr., J., August 1, 2008 –
PROCEDURAL HISTORY
1
On February 29, 2008 the Defendant was found guilty at a non-jury trial of (1)
23
Recklessly Endangering Another Person (M2), (2) Stalking (M1), (3) Simple Assault
4
(M2), (4) Driving Under the Influence (“DUI”), General Impairment with Accident
56
(M), (5) Retaliation Against Witness or Victim (F3), (6) Reckless Driving, a summary
78
offense, and not guilty of (7) Stop Signs and Yield Signs.
9
The Defendant was sentenced on March 11, 2008, to the following:
1
See Order of Court, Feb. 29, 2008.
2
18 Pa.C.S. § 2705
3
18 Pa. 2709.1(a) (1)
4
18 Pa.C.S. § 2701(a)(1)
5
75 Pa.C.S. § 3802(b)
6
18 Pa.C.S. § 4953
7
75 Pa.C.S. § 3736(a)
8
75 Pa.C.S. § 3323(b)
9
See Order of Court, Mar. 11, 2008.
Count 1 – Recklessly Endangering Another Person (M2):
1. Defendant shall pay the costs of prosecution,
2. Pay restitution to Carl Malinak in the amount of $57.06 and to Amica
in the amount of $2,829.02.
3. Shall undergo imprisonment in the State Correctional Institute for not
less than 7 months nor more than 18 months. This is a standard range sentence.
Count 2 – Stalking (M1):
1. Defendant shall pay the costs of prosecution,
2. Pay a fine of $300,
3. Shall undergo imprisonment in a State Correctional Institute for not
less than 8 months nor more than 18 months. This sentence shall run consecutive
to the sentence at Count 1. This is a standard range sentence.
4. Defendant shall have absolutely no contact with the victim, Patricia
Kichman.
Count 4 – Simple Assault (M2):
1. Defendant shall pay the costs of prosecution,
2. Pay restitution to Patricia Kichman in the amount of $500 and to State
Farm Insurance in the amount of $3,781.37.
3. Shall undergo imprisonment in a State Correctional Institute for not
less than 7 months nor more than 18 months. This is a standard range sentence. This
sentence shall run consecutive to the sentence at count 2.
Count 5 – Driving Under the Influence, General Impairment with Accident (M):
1. Defendant shall pay the costs of prosecution,
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2. Shall pay a mandatory minimum fine of $500, $50 CAT Fund
surcharge and $10 Emergency Relief Fund fine.
3. Shall attend and successfully complete the DUI alcohol safety class,
complete a drug and alcohol evaluation and any recommended treatment. He shall
surrender any operator’s license currently in his possession and
4. Shall undergo imprisonment in a State Correctional Institute for not
less than 2 months nor more than 6 months. This is a standard range sentence. This
sentence shall run consecutive to the sentence at Count 4.
Count 3 – Retaliation Against Witness or Victim (F3):
1. Defendant shall pay the costs of prosecution,
2. Submit to DNA testing,
3. Shall undergo imprisonment in a State Correctional Institute for a
period of not less than 24 months to 48 months. This sentence shall run concurrent to the
other sentences previously imposed. This is a standard range sentence.
Count 6 – Reckless Driving (summary):
1. Defendant shall pay the costs of prosecution,
2. Pay a fine of $200, at CAT Fund surcharge of $30 and an EMS fine of
$10.
The aggregate sentence in this case is 24 months to 60 months. Defendant was
given credit for 1 day time served. The Court gave the following reasons for this
sentence:
1. A lesser sentence would depreciate the seriousness of the crime.
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2. Defendant is an alcohol abuser whose criminal activities when under
the influence of alcohol manifest themselves in dangerous domestic violence incidents.
3. There were multiple victims, including school children, in this case.
Defendant’s inability to control his anger especially when under the influence of alcohol
poses a danger to society.
The Court noted on the record that but for the Defendant’s prior military service
and the Veteran’s Administration awarding him partial disability for Post Traumatic
Stress Disorder, it would have sentenced the Defendant in the aggravated range in Count
1, Count 3 and Count 4.
On April 18, 2008 the Defendant’s Post-Sentence Motion was denied by Order of
this Court. The Defendant then filed a Notice of Appeal on May 8, 2008.
Defendant raises the following issues on Appeal:
(1) The trial Court erred in finding sufficient evidence of guilt as to the
Witness Intimidation charge.
(2) The trial Court erred in failing to disqualify the district attorney’s
office, where there was a conflict of interest or appearance of a conflict of
interest.
(3) The trial Court erred in admitting the blood alcohol evidence where the
Commonwealth failed to lay sufficient foundation required by the PA
Code. Without this admission there is insufficient evidence of intoxication
for a DUI conviction and a new trial required.
(4) The trial Court abused its sentencing discretion by not taking into
account mitigating factors based on the mental handicap of the
10
Defendant.
This Opinion in support of the sentencing order of the Court is written
pursuant to PA.R.A.P. 1925(a).
10
See Concise Statement of Matters Appealed filed May 27, 2008.
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STATEMENT OF THE FACTS
Patricia Kichman and the Defendant are involved in a very contentious bifurcated
11
divorce which is still pending property settlement. Ms. Kichman testified that she filed
a harassment charge against the Defendant because he towed her car from her work
12
place, canceled the tags on her car, and filled her voice mail at work. Accordingly, Ms.
Kichman was the alleged victim of the criminal harassment charge and a party to the civil
divorce matter. Hearings on both these outstanding cases were scheduled to take place
13
on December 4, 2006.
On the morning of November 9, 2006 at approximately 7:00 a.m. Ms. Kichman
was on her way to work when she was forced off the roadway and onto the nearby curb to
14
avoid a head on collision with an on-coming SUV. The SUV was being driven by the
15
Defendant, John Kichman. After blocking Ms. Kichman’s way by stopping his car
across the center of the road, the Defendant got out of his car and approached Ms.
16
Kichman’s car and began banging on the window and yelling.
Ms. Kichman drove away and the Defendant jumped back into his vehicle and
began to pursue her around the blocks of a built up residential area. During his pursuit the
Defendant drove onto the lawns of surrounding houses in an attempt to catch Ms.
17
Kichman. Twice during the pursuit the Defendant crashed his SUV into Ms. Kichman’s
11
N.T. 32-34
12
N.T. 36, Commonwealth Exhibit No. 24
13
Commonwealth Exhibit No. 25
14
Notes of Tr., Feb. 29, 2008, at 17, (Hereinafter “N.T._”).
15
N.T. 32
16
N.T. 18-20, 48
17
N.T. 21
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car with enough force to “buckle the back doors” and cause $4,000 worth of damage to
18
her car.
With “tires squealing” the Defendant chased Ms. Kichman approximately three
times around the surrounding neighborhood streets striking Carl Malinak’s car two
19
times. During the chase one of the Defendant’s tires went flat and he was driving on
20
the tire’s rim. Ms. Kichman was eventually able to escape the Defendant’s pursuit and
21
drive back to her home. The local school bus driver, who was on route to pick up
children who were standing along the streets of the neighborhood, testified that at one
point the Defendant’s vehicle came within inches of her bus while there were children
22
inside. She also described the defendant’s driving as “speeding erratically out of
23
control” while pursuing Ms. Kichman.
Corporal Tamanosky first interacted with the Defendant upon arrival at the scene
24
and noticed distinct indicia of intoxication. The defendant had “bloodshot” and “glassy”
25
eyes and a noticeable odor of alcohol. The Corporal, based on his nine and a half years
26
of experience, made the determination that the Defendant was incapable of safe driving.
During the field sobriety tests administered to the Defendant, Officer Gelnett noted that
he was unable to follow the simple directions such as not moving his head during the
horizontal gaze nystagmus test or taking the proper number of steps during the walk and
18
N.T. 23, 25, 31; Commonwealth Exhibit No. 5
19
N.T. 45, 80, 81
20
N.T. 53, 80
21
N.T. 31
22
N.T. 89
23
N.T. 88
24
N.T. 95
25
Id.
26
N.T. 96
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27
turn test. The Defendant was then transported to the Cumberland County Booking
28
Center for the purpose of criminal processing. The Defendant stated that he had five to
six, 12 to18 ounce beers the night prior at 11:00 p.m., but all the officers testified that the
29
Defendant still had the odor of alcoholic beverage well up to 8:30 a.m. The Defendant
30
submitted to a breathalyzer test at the Booking Center. The result of the test was that the
Defendant’s blood alcohol content was 0.07% within two hours of his horrific vehicle
31
chase of the victim. During his interview with Booking Agent Charles Rhinehart, the
Defendant was specifically asked “In your opinion are you under the influence of an
32
alcoholic beverage now?” The Defendant answered yes.
DISCUSSION
I. Sufficiency of the Evidence to Support the Retaliation Against Witness,
Victim or Party Conviction.
With regard to the charge of Retaliation against Witness, Victim or Party, the
Commonwealth had the burden of proving beyond a reasonable doubt that the Defendant
“harmed another by any unlawful act or engage[d] in a course of conduct …which
threaten[ed] another in retaliation for anything lawfully done in the capacity of witness,
33
victim or a party in a civil matter.” In order for the charge to be a felony in the third
degree, the Commonwealth must prove beyond a reasonable doubt that the Defendant
27
N.T. 109-11
28
N.T. 126
29
N.T. 95, 113, 123, 132
30
N.T. 126
31
N.T. 127
32
Commonwealth’s Exhibit No. 22
33
18 Pa.C.S.A. § 4953(a)
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retaliated by committing conduct listed in § 4952(b)(1) through (5), in regards to
34
intimidation of a witness or victim.
On a challenge to the sufficiency of evidence the law is well settled. All the
evidence and all reasonable inferences drawn therefrom must be viewed in the light most
favorable to the Commonwealth, as the verdict winner. Commonwealth v. Chmiel, 889
A.2d 501, 516-517 (Pa. 2005). Under the felony grading requirements under
§ 4952(b)(1) through (5), the Commonwealth does not need to prove that an actual threat
occurred Commonwealth v. Brachbill, 555 A.2d 82, 84-85 (Pa. 1989), or that there was
“actual intimidation” of a victim as long as there is enough circumstantial evidence for an
inference beyond a reasonable doubt that the Defendant’s mens rea was to intimidate the
victim. Commonwealth v. Collington, 615 A.2d 769, 770 (Pa. Super. 1992).
The Commonwealth presented ten witnesses that were able to testify about the
Defendant’s vehicle chasing Ms. Kichman’s vehicle around the neighborhood and the
carnage he caused. During this chase the Defendant collided into the back of Ms.
35
Kichman’s vehicle twice causing her back doors to buckle. When Ms. Kichman was
stopped, the Defendant ran up to her window banging and yelling words to the effect
36
“Patti, why are you doing this to me…” Whether or not the Defendant was referring to
the harassment charge or the divorce proceedings is inconsequential considering both
37
actions were being lawfully pursued by Ms. Kichman. Given the fact that the
Defendant was not supposed to be having any contact with the victim, these two things
were the only matters pending between them. Clearly, it is reasonable to infer that the
34
18 Pa.C.S.A. § 4953(b)
35
N.T. 23
36
N.T. 30, 45, 53
37
N.T. 35-36
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Defendant was angry about these two matters and wanted to harm the victim/party by
smashing her car. There is no question that the Defendant employed force and violence
against Patricia Kichman. 18 Pa.C.S.A. § 4952 (b) (1) (i). Accordingly, the crime of
Retaliation Against a Victim or Party was clearly proven beyond a reasonable doubt.
II. Request for Disqualification of the District Attorney’s Office.
Less than 20 hours before the trial of this case was scheduled to begin, the
Defendant filed a Motion to Disqualify the District Attorney’s Office at 2:05 p.m. on
February 28, 2008. The Court immediately ordered the Commonwealth to answer the
motion and their Answer was filed at 4:20 p.m. on February 28, 2008.
Again, these charges stem from an incident which took place on
November 9, 2006. The Defendant was arraigned on April 3, 2007, and the case was set
down for trial for June 11, 2007. The case was then continued by the Defendant until
September 10, 2007, for jury trial. On September 11, 2007, the Defendant waived his
right to a jury trial and the matter was then set for non-jury trial to begin on December 4,
2007. Defendant’s current trial counsel entered his appearance on November 28, 2007.
On November 29, 2007, the Defendant again requested a continuance of the non-jury trial
which was then set for February 29, 2008.
In a totally unrelated matter, the Defendant had been subpoenaed to appear before
the county investigating grand jury on November 28, 2007. The Defendant was not the
th
target of the investigation but did exercise his 5 amendment privilege against self
incrimination. After being advised of his rights by President Judge Bayley, the
Defendant was then released from his subpoena and has not been re-subpoenaed.
Defendant, acting pro se, filed a civil Petition for Transcripts captioned John W. Kichman
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v. District Attorney John Dailey at 07-7731 of the Civil Term in the Office of the
Cumberland County Prothonotary on December 27, 2007. The Petition made absolutely
no allegation about any wrongdoing on the part of the District Attorney’s Office. The
Commonwealth answered the Petition for Transcripts on January 15, 2008.
At no time during the three months following the aborted Grand Jury appearance,
during which time the Defendant was represented by the same attorney he had at trial,
was any motion filed by the Defendant requesting to disqualify the District Attorney’s
Office. For some unknown reason, on February 28, 2008, one day before the trial, at
11:39 a.m., even though his initial petition for transcripts was still pending, he filed
another document bearing the same title “Petition for Transcripts,” but in this copy he
made allegations that the District Attorney’s Office had committed criminal offenses
against him. President Judge Edgar Bayley, supervising Judge of the Cumberland
County Grand Jury, dismissed this petition without hearing on March 4, 2008.
On February 29, 2008, the Commonwealth appeared for trial, having subpoenaed
15 witnesses who were present for trial. This Court finds on the record presented, that
the Defendant did not have any genuine or apparent conflict of interest with the
Cumberland County District Attorney’s Office. This Court further finds that the
Defendant’s real objective was to once again delay trial of an offense which had occurred
more than 15 months previously. This conclusion is borne out by the fact that in the
Defendant’s initial “Petition for Transcripts,” he makes absolutely no mention of any
wrongdoing by the District Attorney’s Office. This grand jury encounter was known to
the Defendant for months prior to his trial and he took no action whatsoever to raise any
wrongdoing or conflict until the very eve of trial.
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A mere allegation or appearance of impropriety is insufficient to establish an
actual conflict of interest as to a District Attorney’s Office. Commonwealth v. Sims, 799
A.2d 853 (Pa. Super. 2002). A trial Court’s decision on disqualification and conflict of
interest is reviewed on an abuse of discretion standard. Id. The Defendant in this case
had more than sufficient time to properly raise any argument he had regarding
disqualification of the District Attorney’s Office. He failed to do so and at the last
minute made unsupported allegations against the District Attorney’s Office in order to
obtain yet another continuance at the expense of and inconvenience to 15 innocent
witnesses who were subpoenaed and present to testify in the Commonwealth’s case.
It has been stated that where there is “… no pecuniary or personal interest in
seeing appellant prosecuted, and that appellant’s conviction would not affect the pending
civil suits or criminal complaints,” disqualification is not warranted. Commonwealth v.
Stafford, 749 A.2d 489, 494-95 (Pa. Super. 2000). Even if there is animosity toward the
38
Defendant, animosity by itself does not require replacement.
The Defendant had ample time to file a timely motion raising any conflict of
interest alleging that the District Attorney’s Office acted with prejudice toward the
Defendant. He did not do so. It is not enough that the District Attorney’s Office, in this
instance, was attempting to have the Defendant provide testimony as a witness in a
criminal investigation. The outcome of this case in no way affects the Defendant’s status
as a witness in another criminal investigation. In this case, disqualification of the District
Attorney’s Office was not warranted.
38
Id.
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III. Sufficiency of the evidence to support the Driving Under the Influence
conviction.
A. Foundation Necessary for Admission of Breath Test Result
The Defendant in this case was found guilty at Count 5 of the charge of Driving
Under the Influence, General Impairment with Accident, 75 Pa.C.S.A. § 3802 (a) (1),
3804 (b), the information alleged that the Defendant did “drive after imbibing enough
alcohol to render said person incapable of safe driving and was involved in an accident
resulting in damage to a vehicle or other property.”
At trial, Exhibit #20, an intoxilyzer breath test ticket was admitted into evidence
over the Defendant’s objection. The breath test showed that the Defendant had a .070
blood alcohol content (herein after BAC) at 8:23 a.m. on November 9, 2006. This was
approximately one and a half hours after Defendant’s criminal driving episode began.
While the record is not absolutely clear, it appears that the basis for the Defendant’s
objection to this exhibit was that the Commonwealth did not place into evidence the 30
day accuracy inspection certificate or the annual calibration certificate for the intoxilyzer
machine used for this test.
The Commonwealth however did present the testimony of Booking Agent Charles
P. Rhinehart, Jr., who administered the breathalyzer test to the Defendant. The Booking
Agent utilized an Intoxilyzer 5000 EN2, Serial Number 68-012204 for the test. The
Court took judicial notice of the fact that this Intoxilyzer 5000 is an approved device for
measurement of blood alcohol content from a breath sample and is listed as an approved
device for this purpose in the Pennsylvania Bulletin dated August 7, 2004, Volume 34,
No. 32, Page 4204.
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The Defendant’s breath sample was tested at the Cumberland County Booking
Center. The Court is aware that this facility is a professionally staffed booking center at
the Cumberland County Prison which has been in operation in excess of 10 years. It
operates on a 24 hour a day, 7 day a week schedule. While it is true that the certificates
of accuracy inspection and annual calibration were not placed into evidence, Booking
Agent Rhinehart testified that the 30 day accuracy test and the annual calibration test had
been completed for the Intoxilyzer used to test the Defendant. Nothing in the record
refutes this testimony and the Court found the witness to be credible. Accordingly, the
Court accepted this testimony as evidence that the equipment used to test the Defendant’s
breath had been properly tested for accuracy and calibration. It has been held that proper
calibration can be established by presenting the testimony of the officer administering the
test. Courts have held that there is no specific requirement for documentary evidence as
to accuracy and calibration. See, Com., Dept. of Transp. v. Pestock, 584 A.2d 1075
(Pa.Cmwlth. 1990), Pappas v. Com. Dept. of Transp., 669 A.2d 504 (Pa.Cmwlth. 1996).
Accordingly, the test result was properly admitted.
B. Other Evidence of Driving Under the Influence.
Even if the blood alcohol test result was improperly admitted into evidence, there
were numerous other pieces of both direct and circumstantial evidence that proved the
Defendant was guilty of the charge of Driving Under the Influence, General Impairment
with Accident. The test result in question showed Defendant’s blood alcohol
approximately one and a half hours after his criminal episode to be .07 BAC. Obviously,
this is lower than the .08 BAC at which point a person is per se guilty of the charge of
driving under the influence.
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In this case, there is absolutely no doubt that the Defendant was driving the
vehicle in question. He was observed driving by numerous witnesses. Additionally,
there is no question that the Defendant was involved in an “accident” which damaged a
vehicle or property. The evidence presented shows that the Defendant intentionally
rammed the victim’s vehicle and also ran into an innocent bystander’s vehicle twice. The
only remaining question then was, did the Defendant drive after imbibing enough alcohol
to render him incapable of safe driving? The law regarding a challenge to the sufficiency
of the evidence is well settled and was outlined in Section I of this opinion. We will now
review the evidence and all reasonable inferences that may be drawn therefrom in the
light most favorable to the Commonwealth as the verdict winner.
In order to establish that a motorist charged with driving under the influence is
unable to safely operate a vehicle, the prosecution must prove that the alcohol imbibed
substantially impaired the normal mental and physical faculties required to operate the
vehicle safely. Commonwealth v. Montini, 712 A.2d 761 (Pa. Super. 1998). It has been
stated that the manner in which the Defendant was driving can evidence a diminution or
enfeeblement of his ability to exercise proper judgment. Commonwealth v. Kerry, 906
A.2d 1237 (Pa. Super. 2006). One must remember that the Commonwealth does not have
to prove that the “substantial impairment” of the Defendant as a result of his drinking
alcohol was so severe as to cause “extreme condition of disability.” Id.
In this case, the Commonwealth, even without the inclusion of the Intoxilyzer
5000 blood alcohol content, was able to prove through direct and circumstantial evidence
that the Defendant was incapable of driving in a safe manner as a result of intoxication.
At trial, the Court found as fact the following:
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a.The Defendant stopped his vehicle across the center of a lane
for oncoming traffic obstructing the victim’s vehicle from
39
proceeding.
b.The Defendant rammed the back of the victim’s car twice
40
causing the back doors of the victim’s car to buckle.
c.The Defendant drove erratically through residential yards,
eventually deflating his tire. He continued to drive on the rim of
41
his wheel.
d.The driving of the Defendant was described as “speeding
erratically out of control” coming within inches of a school bus
42
carrying children.
e.The Defendant hit the same car at an intersection twice as he
circled the block. These conditions could have been avoided by
43
a sober driver.
f.Corporal Tamanosky noticed an odor of alcoholic beverages on
the Defendant’s breath, bloodshot and glassy eyes, and a
demeanor suggesting intoxication. In the Corporal’s
experienced opinion the Defendant was incapable of safe
44
driving.
39
N.T. 48
40
N.T. 23
41
N.T. 53
42
N.T. 88-89
43
N.T. 75
44
N.T. 95-96
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g.Officer Gelnett testified the Defendant had bloodshot and glassy
eyes, unsteady and swaying on his feet, and was unable to
45
follow simple instructions for the field sobriety test.
h.Officer Barnes detected a strong smell of alcohol on the
46
Defendant’s breath.
i.The Defendant admitted to Booking Agent Rhinehart at the
booking center that he was still under the influence of an
47
alcoholic beverage while being interviewed.
j.This entire unprovoked, erratic, and irrational episode which
took place at 7:00 a.m. in the morning in a quiet residential
neighborhood can only be attributed to a diminution or
enfeeblement of the Defendant’s ability to exercise sound
judgment induced by alcohol abuse.
There is no question that based on the above, this Court was presented with
sufficient evidence to prove beyond a reasonable doubt that the Defendant was Driving
§
Under the Influence of Alcohol in violation of 3802 (a) (1) of the Vehicle Code.
IV. Discretionary Aspects of the Defendant’s Sentence.
Sentencing is a matter vested in the sound discretion of the sentencing Court and
its judgment will not be disturbed absent an abuse of discretion. Commonwealth v.
Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001). The Court is afforded this broad
discretion in sentencing because the trial Court is in the best position to determine the
proper penalty for a particular offense based upon an evaluation of the individual
45
N.T. 109-13
46
N.T. 123
47
Commonwealth’s Exhibit 22
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circumstances before it. Commonwealth v. Mouzon, 812 A.2d 617, 620 (Pa. 2002),
citing Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa.1990). Absent a finding that
the sentencing Court manifestly abused its discretion, the Appellate Court will not
substitute its judgment for that of the sentencing Court. Commonwealth v. Hoag, 665
A.2d 1212, 1213-14 (Pa. Super.1995). The defendant must show that the sentence
imposed either exceeded the statutory limits or that it was manifestly excessive in order
to successfully prove abuse of discretion. Commonwealth v. Martin, 611 A.2d 731, 735
(Pa. Super. 1992).
In this case, the Defendant’s sentence on each count was within the standard
range of the Pennsylvania Sentencing Guidelines. Four of the sentences were run
consecutive to each other. The sentence with regard to Retaliation against Witness or
Victim was run concurrent with all of the other sentences. Initially we take note of the
general rule in Pennsylvania that in imposing a sentence, the Court has discretion to
determine whether to make it concurrent or consecutive to another sentence then being
imposed and the question of imposing a consecutive rather than concurrent sentence
does not present a substantial question regarding the discretionary aspects of the
sentence. Commonwealth v. Hoag, 665 A.2d 1212 (Pa. Super. 1995). In setting a
sentence, the Court has discretion not only to deviate from the guideline ranges but also
to run a sentence concurrently with or consecutive to other sentences being imposed.
Commonwealth v. Mouzon, 828 A.2d 1126 (Pa. Super. 2003).
In this case the Defendant maintains that the Court abused its sentencing
discretion by not taking into account mitigating factors based on the mental handicap of
the Defendant. An examination of this record shows that between the time period of
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November 2006 until March 11, 2008, the Defendant in this case never provided any
records or expert testimony regarding his “mental handicap.” It was the Court, sua
sponte, which contacted the Cumberland County Veterans Affairs Office to obtain any
records regarding the Defendant’s partial military disability based on Post Traumatic
Stress Disorder. Even without any documentary proof or expert testimony, the Court did
take into account testimonial evidence of the Defendant’s prior military service and his
partial disability for Post Traumatic Stress Disorder. The Court specifically noted on the
record that “but for [this evidence], it would have sentenced the Defendant in the
aggravated range in Count 1, Count 2 and Count 4.” In short, the Defendant did receive
consideration of these mitigating factors.
However, considering the multiple victims involved and the future danger to the
public posed by the Defendant, further mitigation of the sentence would only depreciate
the seriousness of the crimes he committed. Even though it was not required to do so
because the Defendant’s sentence on each count was within the standard range, the Court
specifically outlined the reasons for its sentence at the time of sentencing. As noted in
Commonwealth v. Wright, 600 A.2d 1289 (Pa. Super. 1991), a sentencing Court does not
have to state why it chose not to sentence within the mitigated range of the Pennsylvania
sentencing guidelines. In this case the mitigating factors were considered, but the Court
found that they in essence only reduced an aggravated case to a standard range case.
Accordingly, there was no error with regard to sentencing.
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CONCLUSION
We reject the Defendant’s argument that this Court (1) erred in finding sufficient
evidence of guilt as to the Witness Intimidation charge; (2) erred in failing to disqualify
the District Attorney’s Office; (3) erred in admitting the blood alcohol evidence based on
an improper foundation or in finding sufficient evidence of intoxication to support a
Driving Under the Influence conviction; or (4) abused its discretion when sentencing
based on the Defendant’s mental handicap. Accordingly we uphold the order sentencing
him to an aggregate term of twenty-four (24) to sixty (60) months in prison.
By the Court,
M. L. Ebert, Jr., J.
Jaime Keating, Esquire
First Assistant District Attorney
Karl Rominger, Esquire
Attorney for Defendant
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