Com. v. Moore
| Decision Date | 18 November 1992 |
| Citation | 420 Pa.Super. 484,617 A.2d 8 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Roger A. MOORE. COMMONWEALTH of Pennsylvania v. Roger A. MOORE, Appellant. |
| Court | Pennsylvania Superior Court |
Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com.
Melaine S. Rothey, Pittsburgh, for Roger A. Moore.
Before ROWLEY, President Judge, and POPOVICH and CERCONE, JJ.
Both the Commonwealth and Roger A. Moore (hereinafter "defendant") have appealed the Judgment of Sentence imposed following a waiver trial in which the defendant was found guilty of the following offenses: homicide by vehicle and involuntary manslaughter, driving under the influence, recklessly endangering another person, driving while operator's privileges suspended, failure to drive on right side of highway, and reckless driving. In its appeal, the Commonwealth vehemently argues that the sentence imposed, although within the sentencing guidelines, is excessively lenient and "clearly unreasonable" under all the facts and circumstances of this case. The defendant has appealed his sentence on the basis of allegedly erroneous evidentiary rulings made by the trial court during his trial and on the theory that the evidence proffered by the Commonwealth was insufficient to sustain the defendant's conviction in several particulars. After a very careful review of the record and the law, we vacate the judgment of sentence and remand to the trial court for resentencing.
The facts giving rise to these cross-appeals follow. On December 24, 1990, Elizabeth Henry and her husband, Henry, went to Christmas Eve services at their church. When they returned home, they neglected to turn their car lights off. At about 9:20, Mrs. Henry realized their car lights were still on and she decided to take the car, a 1974 Dodge Dart, for a drive to recharge the battery.
Mrs. Henry was driving below the speed limit, at approximately 40 miles per hour, on Route 366 towards New Kensington when another vehicle, driven by a Michael Selerud, attempted to pass Mrs. Henry in a properly marked passing zone. Just as he was about to move his vehicle around Mrs. Henry's, he saw the defendant's "pick-up [truck] come around the bend in the road coming in ... [his] direction ... cross the center line and hit [Mrs. Henry's] car head on." (Reproduced Record, 105a, 106a, 114a). Mrs. Henry (hereinafter "victim") was killed instantly by blunt force trauma to her head and chest. Mr. Selerud braked his vehicle to a halt before impacting the victim's car. The defendant, whose driver's license had previously been suspended, was found lying on the front seat of his truck mumbling unintelligibly. An empty quart bottle of Colt .45 Malt Liquor, an empty quart bottle of Bacardi Rum, and a pint bottle of Bacardi Rum in a brown paper bag were also found on the passenger side floor of the defendant's truck. A case of beer had been thrown out of the bed of the defendant's truck on impact.
A Traffic Safety Training Specialist, Officer Sims, arrived at the scene at approximately 9:48 p.m. in response to a call for assistance from several officers who had come upon the accident minutes after it's occurrence. Officer Sims observed all three vehicles involved in the incident and spoke with the officers at the scene. He also talked to the defendant in the ambulance. As a result of his observations at the scene and his conversation with the defendant, Officer Sims "asked [another officer] to follow the ambulance to the hospital and obtain a blood alcohol sample." (Reproduced Record, 219a). The defendant's blood was tested at the Allegheny County Toxicology Department and a .15 blood alcohol content was revealed. Cocaine was also detected in the defendant's blood.
Despite a motion to suppress filed by the defendant, the trial court received the blood test as evidence. Also at trial, Officer Sims testified that based upon his discussion with the eye witness, Mr. Selerud, and the measurements taken at the scene, it was his opinion that a portion of the defendant's vehicle had already crossed the center yellow line before he started to brake and that his skid marks began some two hundred feet after a patch of ice in the roadway. Based on this evidence, the trial court, sitting as fact-finder, concluded that the defendant unintentionally caused Mrs. Henry's death while violating the Motor Vehicle Code (homicide by vehicle) in a reckless or grossly negligent manner (involuntary manslaughter). The court also concluded that he was guilty of driving under the influence of alcohol and of several related summary violations.
To aid the trial court in sentencing the defendant, an extensive pre-sentence report was compiled which indicated that the defendant "has violated most of the probations he has been granted in Westmoreland County," "has displayed a pattern of irresponsibility throughout his adult life," and "is in need of severe corrective measures before he causes another similar tragedy." (Reproduced Record, 399a-414a). The report also indicates that the defendant has abused alcohol and cocaine for some time, yet continues to deny any substance abuse problems. While awaiting trial on the charges relevant to this appeal, the defendant was arrested for possession of cocaine and drug paraphernalia in Westmoreland County. (Reproduced Record, 399a-414a).
In addition to the pre-sentence report entered into evidence for sentencing purposes, a copy of the defendant's driving record was proffered to the sentencing court. That record revealed that the defendant has had a long history of motor vehicle violations in this Commonwealth which, due to their summary nature, were not reflected in the defendant's prior record score. Totaling fifteen in number, the defendant's driving record is composed of seven moving violations, four driving without a license or under suspension violations, and four miscellaneous violations. Of course, said driving record also reveals the fact that the defendant was driving while under suspension at the time of the December 24, 1990 incident.
Before turning to the merits of the arguments presented herein, we must consider whether this appeal is properly before us. An appeal of the discretionary aspects of a sentence is not guaranteed as of right. Rather, "allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code]." 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Tuladziecki, 513 Pa. 508, 511-512, 522 A.2d 17, 19 (1987).
The Commonwealth has complied with the mandate of Tuladziecki and therefore, we must ascertain whether a substantial question has been raised as to the propriety of the defendant's sentence. In Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987), this Court noted that the determination of whether a particular issue constitutes a substantial question must be evaluated on a case-by-case basis but that it would "be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge's actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Id. at 201 n. 7, 535 A.2d at 119 n. 7.
In the instant appeal, the Commonwealth has raised a claim that the sentence imposed in this case was contrary to the fundamental norms underlying the sentencing process and was inconsistent with the Sentencing Code. We conclude that this claim is colorable. The 2119(f) statement filed by the Commonwealth enumerates several aggravating factors which indicate to us that the defendant's lack of intent may have been given unduly substantial weight by the court in fashioning the defendant's sentence while his pattern of overall irresponsibility and flagrant disregard for highway safety may not have been given enough weight. Therefore, we conclude that the Commonwealth presents us with a substantial question as to the suitability of the sentence imposed in this case.
A sentencing court has broad discretion in choosing the range of permissible confinements which best suits a particular defendant and the circumstances surrounding his crime. However, the choices must be "consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant." Commonwealth v. Devers, 519 Pa. 88, 92, 546 A.2d 12, 13 (1988) (emphasis added).
In Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985), we noted that:
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