Com. v. Walker

• Decision Date: 29 September 1995
• Citation: 666 A.2d 301,446 Pa.Super. 43
• Parties: COMMONWEALTH of Pennsylvania v. Richard L. WALKER, Appellant.
• Court: Pennsylvania Superior Court

Page 301

666 A.2d 301

446 Pa.Super. 43

COMMONWEALTH of Pennsylvania v. Richard L. WALKER, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 15, 1994.

Filed Sept. 29, 1995.

Thomas R. Ceraso, Greensburg, for appellant.

Bradley K. Hellein, Assistant District Attorney, Kittanning, for Commonwealth, appellee.

Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.

FORD ELLIOTT, Judge:

This is an appeal from the judgment of sentence of January 25, 1994, entered in the Court of Common Pleas of Armstrong County. We affirm in part, vacate in part, and remand for resentencing.

Appellant pled guilty to driving "while under the influence of alcohol to a degree which renders the person incapable of safe driving[,]" ¹ and driving "while the amount of alcohol by weight in the blood of the person is 0.10% or greater[.]" ² These charges arose from a two-car collision in which two occupants of the other vehicle were severely injured. Following the accident, the investigating officer, Chief Roofner of the Gilpin Township Police Department, noticed a strong odor of alcohol on appellant's breath, and asked appellant to submit to a blood alcohol test. Appellant agreed. The test revealed that appellant had a blood alcohol content of .348%.

At the sentencing hearing, appellant argued that he should not be sentenced under the enhanced sentencing guideline applicable when serious bodily injury is involved. ³ In support of his argument, appellant relied upon this court's decision in Commonwealth v. Gallagher, 430 Pa.Super. 457, 634 A.2d 1147 (1993), for the proposition that in order to implement the enhanced sentencing guidelines under § 303.5, the court must find that the DUI violation was the cause of the resulting serious bodily injury. We agree with appellant's interpretation of the rule. It is in the application of this rule to the facts of the case before us that we disagree.

When reviewing whether the evidence supports application of a sentencing enhancement provision, this court has held that a preponderance of the evidence standard is appropriate and does not violate due process, since the provision that allows for the enhancement is not an element of the crime charged. Commonwealth v. McKeithan, 350 Pa.Super. 160, 162-170, 504 A.2d 294, 296-299 (1986). While McKeithan addressed a weapons enhancement provision, we see no distinction in the case before the court, since causing serious bodily injury is not an element of the crime with which appellant was charged. The trial court was therefore required to find by a preponderance of the evidence that appellant's driving while intoxicated caused the victims' injuries. A review of the evidence before the court and the trial court's findings is, therefore, appropriate.

Appellant maintained throughout the proceedings that the victims' car came into his lane of travel, and that, as it did so, appellant stopped his vehicle. (Notes of testimony, 1/25/94 at 27, Presentence Investigation Report [PIR], 11/17/93 at 4. ⁴ ) The probation officer who prepared the PIR, when asked for his assessment of appellant's version, stated:

My biggest problem with what Mr. Walker told me was that his blood alcohol level was .348. It's difficult for me to determine if he really knew what was happening that day....

Notes of testimony 1/25/94 at 28. In addition, the report from the Pennsylvania Highway Safety Program, appended to the PIR, indicates that a blood alcohol content [BAC] of .34% results in "an exhibition of major impairment of all physical and mental functions; irresponsible behavior; general feeling of euphoria; difficulty in standing, walking, talking, distorted perception and judgment. If BAC reaches .50% a coma develops and by .60% death can result." Clearly, there was evidence before the sentencing court that appellant's driving was impaired to a degree that rendered him incapable of operating his vehicle safely. Indeed, this is the precise language of 75 Pa.C.S.A. § 3731(a)(1), one of the sections of the Code to which appellant pled guilty. Section 3731(a)(1) provides:

(a) Offense defined.--A person shall not drive, operate or be in actual physical control of the movement of any vehicle:

(1) while under the influence of alcohol to a degree which renders the person incapable of safe driving.

Thus, by pleading guilty to this section, appellant has admitted that he was incapable of safe driving.

In addition, the PIR contains a statement from Officer Roofner, the first police officer to reach the scene of the accident, that "it [was] his opinion that the victim's vehicle did cross the center line in an attempt to avoid a head on collision with the defendant's vehicle which was in the wrong lane." (PIR, 11/17/93 at 2.)

The PIR also includes the results of an interview between the probation officer conducting the presentencing investigation and Linda Colanduoni, the victim who suffered the worst injuries, including injuries to her head. According to the PIR, Ms. Colanduoni told the probation officer that as she and her husband and child came around the bend, "the [appellant's] car was in their lane.... [T]he accident happened so fast that she does not know exactly what happened next however, her husband did try to avoid the collision.... [S]he places the blame for this accident solely on [appellant]." (PIR, 11/17/93 at 2-3.) In addition, in a letter to the court from Ms. Colanduoni, appended to the PIR and made a part of the record, Ms. Colanduoni stated: "On July 15, 1992 my family and I were inolved [sic] in an accident caused by a drunk driver. His name is Richard Walker.... I will never forgive Mr. Walker for what he has done to my entire family.... The entire episode Mr. Walker caused is an outrage.... I feel for what he has caused me alone ... should cause him the fullest punishment the law allows." (PIR addendum, 1/15/93.) At the sentencing hearing, however, Ms. Colanduoni testified that she told the probation office she had no recollection as to how the accident occurred. (See notes of testimony, 1/25/94 at 17-18.) Ms. Colanduoni also indicated at the hearing that her memory of other events was deteriorating as a result of her head injuries. Id. It was, of course, within the province of the sentencing court to believe all, part, or none of Ms. Colanduoni's testimony. Commonwealth v. Hlatky, 426 Pa.Super. 66, 75-77, 626 A.2d 575, 580 (1993), alloc. denied, 537 Pa. 663, 644 A.2d 1200 (1994). It was, therefore, within the court's discretion to give more weight to Ms. Colanduoni's prior recollection of the accident than to her testimony at the sentencing hearing.

Based upon the foregoing evidence before the court, the sentencing judge found as follows:

I find that you [appellant] were intoxicated that night ... and that your intoxication caused your driving to be faulty, and that your driving was a substantial factor in the causing of this accident. I don't believe that it was the sole factor; that there are other factors. I'm finding that it is a substantial factor.

Notes of testimony, 1/25/94 at 73-74.

The facts in the instant case are thus clearly distinguishable from the facts in Commonwealth v. Gallagher, supra. Gallagher pled guilty to Driving Under the Influence. ⁵ He was then sentenced under the enhanced guidelines found at 204 Pa.Code § 303.5(b) to six to twenty-three months in prison because of the serious bodily injury sustained by a passenger in his car. In vacating the sentence and remanding for resentencing, this court held that, where Gallagher's blood alcohol content was .13 per cent, and where the trial judge stated that he "[could] not make a definite finding as to what causation was as far as this accident was concerned," Gallagher, supra at 462, 634 A.2d at 1150, there was not enough evidence of record to find that Gallagher's drinking caused the accident.

Having found that the enhanced sentencing guidelines were appropriately applied by the trial court, we next address appellant's contention that he was improperly sentenced within the aggravated range of the enhanced guidelines. In order to challenge a discretionary aspect of his sentence, appellant must have met the requirements of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and Pa.R.A.P. Rule 2119(f). Although appellant failed to include a concise statement of the reasons for challenging the discretionary aspects of his sentence prior to addressing the merits of the claims, he did, however, include in his "Statement of Questions Involved" a "Petition for Allowance of Appeal Relating to the Discretionary Aspects of Sentencing." Despite the fact that the Commonwealth failed to object to the lack of a concise statement, this court may still quash the appeal for non-compliance if it determines that its review of appellant's claim is significantly hampered by the lack of a concise statement. Commonwealth v. Smicklo, 375 Pa.Super. 448, 454-456, 544 A.2d 1005, 1009 (1988); Commonwealth v. Murphy, 405 Pa.Super. 452, 455 n. 5, 592 A.2d 750, 751 n. 5, (1991); Commonwealth v. Ousley, 392 Pa.Super. 549, 573 A.2d 599 (1990). It is clear in the case before the court that appellant has raised at least one substantial question by challenging whether the same factors that triggered the enhancement guidelines in the first place can also be used to sentence in the aggravated range. As review on appeal is not substantially impaired, we shall address the merits of appellant's challenge.

Discretionary aspects of sentencing are reviewed on appeal for a manifest abuse of discretion. See Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985). It is clear in the instant case that appellant has not demonstrated a manifest abuse of discretion on the part of the trial court. Appellant attempts to rely upon Commonwealth v. Moore, 420 Pa.Super. 484, 617 A.2d 8 (1992), which held that the same mitigating factor that determined a defendant's offense gravity score could not be used in deciding to...