# Commonwealth v. Grays

> Superior Court of Pennsylvania · July 25, 2017 · 2017 Pa. Super. 245

URL: https://www.frixlaw.com/law-library/cases/4189274

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Roegester GRAYS, Appellant
- **Court:** Superior Court of Pennsylvania
- **Decided:** July 25, 2017
- **Citations:** 2017 Pa. Super. 245; 167 A.3d 793; 2017 Pa. Super. LEXIS 572; 2017 WL 3139993
- **Precedential status:** Published
- **Opinion:** Opinion by Stevens
- **Judges:** Shogan, Moulton, Stevens
- **Cited by:** 174 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4189274

## How later opinions describe it (automated extraction)

- finding the evidence sufficient to support aggravated assault by vehicle and aggravated assault by vehicle while DUI convictions where the victim’s injuries — a wrist injury, a bowel perforation, and other injuries which created a significant potential of infection and septic …
- finding no merger of homicide by vehicle and homicide by vehicle while DUI for sentencing purposes where defendant was convicted of numerous laws relating to the use of his vehicle in addition to DUI
- rejecting sufficiency challenge where child victim of vehicle accident suffered “a growth plate injury to his wrist” requiring casting and a perforated bowel which required surgery and “created a significant risk of infection and ultimately septic shock,” which could lead to d…

## Opinion text

J-A11038-17

2017 PA Super 245

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROEGESTER GRAYS :
:
Appellant : No. 1249 MDA 2016

Appeal from the Judgment of Sentence January 7, 2016
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000787-2013

BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED JULY 25, 2017

Appellant, Roegester Grays, appeals from the judgment of sentence

entered in the Court of Common Pleas of Bradford County following his

conviction by a jury on two counts of homicide by vehicle while driving under

the influence of alcohol (“homicide by vehicle-DUI”), one count of

aggravated assault by vehicle while driving under the influence (“aggravated

assault by vehicle-DUI”), two counts of homicide by vehicle, one count of

aggravated assault by vehicle, two counts of driving under the influence-

general impairment and high rate (“DUI”), and one count of possession of a

controlled substance.1 After a careful review, we affirm.

____________________________________________

*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3735(a), 3735.1(a), 3732(a), 3732.1, 3802(1), 3802(b),
and 35 P.S. § 780-113(a)(31), respectively. Appellant was also convicted by
(Footnote Continued Next Page)
J-A11038-17

The relevant facts and procedural history are as follows: On March 1,

2013, at approximately 5:00 p.m., Appellant, who was driving a Chevrolet

Avalanche (“Avalanche”) westbound on Route 328, collided head-on with a

Chevrolet Suburban (“Suburban”), which was traveling eastbound on Route

328 and being driven by Ryan English. As a result of the crash, Mr. English

and his wife, Karen English, were killed instantly, and their thirteen-year-old

son, C.M.,2 and four-year-old son, L.E., were injured. Their ten-year-old

son, G.E., was not injured.

Appellant was arrested and charged with numerous crimes. On

November 21, 2013, he filed a lengthy counseled, pre-trial motion seeking,

inter alia, to suppress his blood alcohol content (“BAC”) from blood that was

drawn on March 1, 2013, at 9:20 p.m., after he was arrested by

Pennsylvania State Police Trooper John J. Youngblood, 3 to suppress the

_______________________
(Footnote Continued)

the trial court of the following summary violations: meeting vehicle
proceeding in opposite direction, disregard traffic lane, careless driving,
reckless driving, and limitation on driving left side of road (75 Pa.C.S.A. §§
3302, 3309(a), 3714, 3736(a), and 3306, respectively).
2
Mr. English was C.M.’s stepfather, and Mrs. English was his biological
mother. N.T., 11/17/15, at 9.
3
In his motion, Appellant averred this post-arrest BAC should be suppressed
since (1) the BAC was the product of an illegal arrest by Trooper Youngblood
since the arrest was made outside of the officer’s jurisdiction; (2) Trooper
Youngblood lacked probable cause to arrest Appellant; (3) there was no
proper chain of custody with regard to the blood drawn at 9:20 p.m.; and
(4) the blood was drawn more than two hours after the collision in violation
of 75 Pa.C.S.A. § 3802.

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physical evidence seized by the police from his vehicle, and to suppress pre-

arrest statements Appellant made to Trooper Youngblood at the Arnot Ogden

Medical Center (“Arnot Ogden”) Emergency Room in New York.

Following a hearing held on January 7, 2014,4 by order and opinion

filed on April 1, 2014, the trial court granted Appellant’s motion to suppress

Appellant’s post-arrest BAC from the blood drawn at 9:30 p.m. upon request

of Trooper Youngblood; however, the trial court denied Appellant’s motion to

suppress the evidence obtained from the search of his vehicle and the

evidence gained by the police at Arnot Ogden prior to Appellant’s arrest.

Trial Court Order, filed 4/1/14.

On July 25, 2014, Appellant filed an additional pre-trial omnibus

motion in which he sought, inter alia, to suppress and/or preclude the

Commonwealth from introducing Appellant’s medical records from Arnot

Ogden, particularly Appellant’s pre-arrest BAC from blood drawn at 5:30

p.m. on March 1, 2013, by order of Appellant’s treating physician, Joseph

Haluska, M.D., at the Arnot Ogden Emergency Room. Specifically, Appellant

contended the medical records were obtained via an improperly issued and

served subpoena, in violation of Appellant’s doctor-patient privilege, and

____________________________________________

4
Appellant has not provided this Court with the notes of testimony from this
hearing.

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inadmissible as there was no “paper trail” establishing blood was actually

drawn by order of Dr. Haluska. The trial court denied Appellant’s motion.

On January 16, 2015, Appellant filed a motion in limine seeking to

preclude the Commonwealth from admitting into evidence Appellant’s pre-

arrest BAC from the blood drawn and tested by order of Dr. Haluska. In this

motion, Appellant asserted his pre-arrest BAC should be precluded as the

Arnot Ogden laboratory was not a fully licensed and approved Pennsylvania

facility for testing purposes. The matter proceeded to a hearing on May 26,

2015, and by order entered on July 13, 2015, the trial court denied

Appellant’s January 16, 2015, motion in limine.

On August 10, 2015, Appellant filed another motion in limine in which

he again sought to preclude his pre-arrest BAC from the blood drawn and

tested by order of Dr. Haluska. In this motion, Appellant contended that the

introduction of his pre-arrest BAC would violate his due process rights as the

Commonwealth failed to preserve a sample of Appellant’s blood, thus

precluding Appellant from independently testing his blood. The trial court

denied Appellant’s motion in limine with regard to his request to preclude

the introduction of his pre-arrest BAC.

On November 16, 2015, the matter proceeded to a jury trial at which

the parties stipulated that the death of Mr. and Mrs. English was caused by

trauma incurred during the motor vehicle collision at issue. N.T., 11/16/15,

at 32. With regard to the collision, Rita Dennison testified that she resides

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in a rural area near Route 328, and on March 1, 2013, she was at home with

her brother, who was visiting and making plans to assist her with mowing

her lawn. Id. at 34. She indicated that, in an effort to show her brother her

property lines, she and her brother were looking out of her kitchen window,

which faced Route 328, when she saw an Avalanche “zooming” down the

road, passing all of the cars that were going with the normal flow of traffic.

Id. at 35. Mrs. Dennison continued to watch the Avalanche and, as it

crested up the hill, she noted that the Avalanche was still passing vehicles,

even though the road was lined for no passing in that area of the road. Id.

She indicated the Avalanche was traveling west and passing cars on a

double lined road. Id. at 36. Mrs. Dennison testified that, just after the

Avalanche left her sight, she “heard an awful crash, it sounded like an

explosion.” Id. She did not investigate the source of the noise, but when

her husband returned home shortly thereafter, she informed him of the

noise, and he left on his four-wheeler to investigate. Id. at 37.

Mrs. Dennison’s brother, Hugh B. Cunningham, confirmed he was

visiting Mrs. Dennison on the day of the accident, and as they were looking

out of her kitchen window, he noticed a large vehicle “hauling butt” and

passing other vehicles in a no-passing zone. Id. at 58. He indicated that,

as Mrs. Dennison moved to look out of the other kitchen window, she said

“[he’s] so fast he’s going up the hill[,]” and then he heard “an explosion.”

Id.

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Mrs. Dennison’s husband, Joe Dennison, confirmed that he drove his

four-wheeler to the top of the hill near his house on Route 328 and several

firefighters had already arrived on the scene. Id. at 63. He observed an

Avalanche on the left side of the road and another vehicle, which was upside

down, covered with a tarp. Id.

Anthony Amentler testified that, on the day in question, he was driving

a pick-up truck loaded with hay on Route 328 East and, as he turned a

corner, a Suburban was traveling in the same direction ahead of him. Id. at

70. He testified that the two vehicles were traveling at a “normal speed.”

Id. He indicated that, as they started up a hill, the Suburban was about five

car lengths in front of him when he suddenly noticed a large vehicle, later

identified as an Avalanche, coming towards them “on the wrong side of the

road.” Id. at 71. Mr. Amentler clarified that all four tires of the Avalanche

were over the double yellow line “on the wrong side” of the road. Id. at 80.

He testified the Suburban stayed in its lane of travel and was hit “pretty

much head-on” by the opposing Avalanche. Id. at 72. The Suburban

“flipped up in the air and ended up on the other side of the road[,]” and the

Avalanche “spun back into the guardrails.” Id. Mr. Amentler indicated he

was able to avoid the collision, traveled to the top of the hill, pulled his truck

to the side of the hill, stopped an oncoming westbound vehicle, and asked

the driver to call 911. Id. at 73.

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Mr. Amentler testified he then ran down the hill to the crash site and

heard the sound of children crying from inside the Suburban, which was

upside down. Id. at 74. He looked inside the back passenger area and saw

a child hanging upside down in a car seat. Id. With the assistance of other

motorists, he removed the children from the Suburban, but he was unable to

assist the driver (Mr. English) or the front seat passenger (Mrs. English) as

he “couldn’t get into that compartment” of the vehicle. Id.

Mr. Amentler then ran to check on the driver of the Avalanche, later

identified as Appellant, and found him still seated in the driver’s seat. Id. at

75. Appellant had blood coming out of the bridge of his nose and was

complaining of pain to his nose. Id. Mr. Amentler was unable to open the

Avalanche’s front door, so he opened the back door and a beer can fell out

of the vehicle. Id. At this point, since Appellant did not seem to be hurt too

badly, Mr. Amentler decided it was best to let the authorities take over with

regard to the Avalanche and Appellant. Id.

Mr. Amentler testified he went back to assisting the children, one of

whom was obviously severely injured. Id. at 76. Ambulances and

firefighters responded to the scene, and Mr. Amentler remained to speak to

the Pennsylvania State Police, who arrived within half an hour of the crash.

Id. He noted that, from the time the accident occurred until the police

arrived, neither vehicle involved in the accident moved. Id. at 77.

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C.M. confirmed that he was in the Suburban on the day in question

with his siblings, as well as his puppy, PJ, who perished in the accident, and

the family’s adult black Labrador Retriever, Lila. N.T., 11/17/15, at 11.

C.M. testified that Mr. English was driving, Mrs. English was in the front

passenger seat, he was on the left side of the back passenger seat, L.E. was

in a car seat on the right side of the back passenger seat, and G.E., as well

as Lila, were in the third row. Id. at 8, 12. C.M. indicated that he

remembered seeing a truck coming towards the family’s Suburban and it

was “driving on [their] side of the lane.” Id. After the collision, the

Suburban was “upside down” and all three boys, who were wearing seat

belts or secured in a car seat, were dangling upside down. Id. at 13. C.M.

did not see or hear any noise coming from his stepfather or mother. Id. at

14. C.M. testified that he crawled out of the Suburban, and by the time he

exited, a man was holding L.E.; G.E. was also out of the Suburban and so

was the dog, Lila. Id. at 15-16.

C.M. testified that he had pain in his stomach area and an ambulance

took him to a hospital. Id. at 17. He underwent surgery on his abdomen

and he suffered a broken arm, which required a cast and physical therapy.

Id. at 18. C.M. was in the hospital, and he was reunited with the family

dog, Lila, after he was released. Id. at 19. He indicated that L.E. suffered a

broken leg, which required a cast. Id. at 20.

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Michael Kipferl, a postal employee, testified that he was traveling

behind Mr. Amentler’s pick-up truck, which was directly behind the English’s

Suburban, when he saw a vehicle “coming around the corner in [their]

lane...and [strike] the Suburban head-on.” Id. at 44. He indicated that the

Suburban tried to go to the left in an attempt to get in the other lane, but it

was hit head-on, resulting in it “barrel rolling” onto its roof and landing in

the ditch. Id. at 45. Mr. Kipferl immediately stopped his vehicle, ran to the

driver of the Avalanche, determined the driver was conscious, and then ran

to the Suburban to check on its occupants. Id. He saw three children

dangling from their safety restraints and assisted at least one of them out of

the Suburban. Id. at 46. There was no movement from Mr. English or Mrs.

English. Id.

Michael Frawley testified that he did not observe the accident, but

came upon it as a gentleman was removing children from the Suburban. Id.

at 53-54. Since it was cold outside, he placed two of the children in his

vehicle to await the arrival of emergency personnel. Id. at 54. He noted

that he saw Appellant in the Avalanche, as well as beer cans lying on the

driver’s side floor and outside on the ground. Id. at 56, 60-61, 63. He

denied seeing a large or medium-sized animal running around the accident

scene, although he later learned that the English family had a black Labrador

Retriever, which was in the Suburban at the time of the accident. Id. at 69-

71.

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Jeremy Sheive testified that he is a volunteer firefighter, and he

responded to the accident scene. Id. at 80-81. He went directly to the

Suburban, and he was informed that three children had escaped but that

two adults were still inside. Id. at 82. He began to extricate the front seat

adults and discovered that they were already deceased. Id. at 84-85.

Jeffrey L. Sweet, Jr., testified that he is an ambulance driver, and he

transported Appellant to the nearest hospital, Arnot Ogden. Id. at 91. He

indicated it took approximately twenty-five to thirty minutes to reach Arnot

Ogden, and upon arrival, Appellant was taken directly to the Emergency

Room. Id. at 94-95.

The paramedic working with Mr. Sweet, Ashley Adams Prosser,

testified that her records reveal they began transporting Appellant from the

scene at 5:14 p.m. and arrived at Arnot Ogden at 5:28 p.m. Id. at 102. Ms.

Prosser testified she did not draw blood from Appellant, but she

unsuccessfully attempted to insert an IV to administer pain medicine for his

obviously fractured ankle. Id. at 102-06. She indicated that Appellant

signed a consent form permitting him to be transported by the ambulance to

the hospital. Id. at 107. She noted that, during the transport, Appellant

told her a few times that he had swerved to miss hitting a black dog and,

upon hindsight, he wished he had hit the dog instead of attempting to miss

it. Id. at 109.

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Pennsylvania State Police Trooper David Kittle testified that he

received a radio dispatch for a crash on Route 328, and he arrived at the

scene at approximately 5:29 p.m. Id. at 27. He indicated it was still

daylight at this time, and emergency personnel were on the scene; however,

the children, as well as Appellant, had already been removed from the scene

via ambulance. Id. at 30. Mr. and Mrs. English were deceased in the

Suburban. Id. at 36.

Trooper Kittle described Appellant’s Avalanche as facing eastbound on

the shoulder of the road against the guardrail, and the English’s Suburban

was flipped over on the north shoulder of the road. Id. at 32-33. Trooper

Kittle indicated that he saw an empty beer can lying on the road on the

driver’s side of the Avalanche; however, he did not remember Mr. Amentler

informing him that the beer can had fallen out of the Avalanche when he

opened the back door. Id. at 40-41. He indicated that a subsequent search

of Appellant’s vehicle pursuant to a search warrant revealed a sandwich

baggie containing soft-rolled marijuana cigarettes. Id. at 160.

Pennsylvania State Trooper Timothy P. Young testified that his primary

role is that of a state fire marshal, but he also analyzes vehicles involved in

crashes. Id. at 129. He analyzed the two vehicles involved in the present

crash and “observed that [they] had severe front-end damage to them.” Id.

at 131. He noted that he saw no evidence leading him to believe that either

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the Avalanche or Suburban were not in good working order prior to the

crash. Id. at 131-32.

Kyle Wisel, a detective for the District Attorney’s Office, testified that

in May of 2013 he interviewed Appellant at his house. Id. at 137-38.

Appellant, who was in a wheelchair due to an ankle injury, told Detective

Wisel that, on the day of the crash, he had taken a prescribed muscle

relaxer and had “consumed a couple of beers.” Id. at 141. Appellant told

Detective Wisel that, before the crash, “a medium-sized black dog had

entered the roadway.” Id. at 143. Detective Wisel noted that photos taken

from the scene reveal two beer cans lying near Appellant’s vehicle. N.T.,

11/19/15, at 65, 68.

At this point, the District Attorney read into evidence a portion of

Appellant’s testimony from a motion in limine hearing at which Appellant

indicated “what lead into the accident, either a small dog or a deer per se

was in the road and [he] went to avoid this animal and successfully avoided

this animal and then an on-coming car was in [his] path and [he] tried to

avoid colliding with them.” N.T., 11/17/15, at 158.

Matthew Brann, M.D., confirmed that, as a result of the accident, C.M.

suffered a growth plate injury to his wrist, which required casting. N.T.,

11/18/16, at 4. Further, he testified C.M. suffered “a bowel perforation,

Jejunum Perforation which is the small bowel[,] [a]n ulcer, a hematoma on

Duodenum[,] which is also the small bowel[,] and injuries to his Transverse

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Colon.” Id. at 5. Dr. Brann testified surgery was necessary to address

C.M.’s internal injuries. Id. He noted that, with regard to the bowel injury,

there was a significant risk of infection and septic shock, which can lead to

death. Id. at 6. Dr. Brann testified that C.M. was transported via helicopter

to a hospital in Rochester, New York, where his surgery was performed. Id.

at 15. C.M. was in the hospital for twelve days. Id. at 6. Dr. Brann

indicated that C.M.’s wrist healed well, although he continued to have “some

discomfort with repetitive activities such as doing hay or tennis.” Id. at 20.

He testified that L.E. suffered a fracture to his left tibia, which required

casting. Id. at 7. Dr. Brann admitted that, initially, L.E. was evaluated on

March 1, 2013, at Arnot Ogden, and the fracture was not discovered at this

time. Id. at 9-10. However, on March 2, 2013, when L.E. returned for a

follow-up appointment, medical personnel noticed that L.E. was not putting

weight on his leg, and the fracture was discovered. Id. at 10. Dr. Brann

testified that, on March 21, 2013, L.E.’s leg was placed in a short cast, which

was removed on April 11, 2013. Id. at 12-13. Dr. Brann noted that L.E.’s

fracture healed well. Id. at 13.

Joseph Haluska, M.D., a physician at Arnot Ogden, testified that he

treated Appellant in the Emergency Room. Id. at 34-35. He indicated that

he ordered a blood alcohol test because he intended to administer “very

potent pain medication” to Appellant and he needed to ensure that he did

not “create a more dangerous situation by giving [Appellant] a potent

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narcotic for pain relief on top of [a] possible significant alcohol level.” Id. at

36. He specifically testified that he ordered the blood alcohol test “solely for

the...diagnosis and treatment of [Appellant’s] injuries.” Id. at 37. He

indicated that he did not perform the actual blood draw, but that he ordered

such a draw and testing be performed. Id. at 37-38. After he received the

results of the test, Dr. Haluska ordered that Appellant receive a narcotic

drug, Dilantin, which was administered at 6:10 p.m. Id. at 41, 43-44. He

noted that Dilantin would not affect one’s blood alcohol content. Id. at 46.

Katie Dieterle, a physician’s assistant in the Emergency Room of Arnot

Ogden, testified that she assisted with the care of Appellant on March 1,

2013, and she smelled a strong odor of alcohol on his breath. Id. at 52.

Kelly Caporaso, R.N., testified she was an intravenous specialist at

Arnot Ogden, and after being directed to do so by Dr. Haluska, she

performed a blood draw on Appellant on March 1, 2013, at approximately

5:30 p.m. Id. at 73-74, 88. After drawing the blood, she placed it in a

tube; she placed the tube in a biohazard bag and carried it to the laboratory.

Id. at 75. She noted this is her normal practice with regard to the

treatment of patients, and it was not done for legal purposes. Id. at 77.

Elizabeth Catherine Martin, the System Director of Phlebotomy

Services at Arnot Ogden, testified that the laboratory was certified by the

New York State Department of Health to conduct blood alcohol testing. Id.

at 56. She testified that, on March 1, 2013, the Arnot Ogden laboratory was

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not specifically certified by Pennsylvania to conduct blood alcohol testing

because, at that time, Pennsylvania accepted its sister state’s certification.

Id. at 70. She noted that the testing is done using a machine, which prints

out a blood serum report. Id. at 59. The machine that Arnot Ogden uses is

the Cobas 6000 made by Beckman-Colder. Id. at 69. She indicated that

there is a conversion factor recognized to convert serum levels to whole

blood levels, which is recognized by the Journal of Toxicology. Id. at 67.

She explained that “if you were to take [the] serum alcohol level and divide

it by 1.18 you would get the equivalent whole blood alcohol level.” Id. at

61.

Cindy H. Schrader, a medical technologist at Arnot Ogden, testified

that for blood alcohol testing the laboratory takes a specimen, spins in it the

centrifuge, and then an alcohol level based on the serum is determined. Id.

at 120. She indicated that she performed the testing of Appellant’s pre-

arrest blood draw, and at 6:14 p.m., his serum blood alcohol level was

0.145%. Id. at 124, 126.

Ms. Martin was recalled to the stand and she testified that the

conversion from serum blood alcohol to a corresponding blood alcohol would

be .123% in the case sub judice. Id. at 159. Ms. Martin testified that

Arnot Ogden provided Appellant’s medical records, which contained his

serum blood alcohol level, to the Commonwealth of Pennsylvania in response

to a search warrant. Id. at 160.

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Pennsylvania State Police Trooper John J. Youngblood testified that he

arrived at the accident scene at 5:45 p.m., and Appellant had already been

transported to the hospital. Id. at 105. Trooper Youngblood went to Arnot

Ogden at 7:45 p.m. in order to speak to Appellant, and at this time, Dr.

Haluska informed him that a medical draw of Appellant’s blood had been

done. Id. at 106, 164. Upon questioning, Appellant told the trooper that

the accident occurred when either he or the Suburban swerved to miss a

black Labrador Retriever. Id. at 106. In speaking with Appellant, Trooper

Youngblood noticed “a faint odor of alcohol” and that Appellant’s speech was

“slow.” Id. at 108, 117. Accordingly, he asked Appellant if he had been

drinking, using drugs, or taking any medication. Id. at 108. Appellant

denied drinking alcohol or using drugs, but he admitted he had taken a

blood thinner, as well as a muscle relaxer, earlier in the day. Id. Appellant

told the trooper he had been traveling at approximately 55 mph at the time

of the collision. Id. at 116.

Pennsylvania State Police Trooper Joseph F. Wasko, who is a collision

analyst and reconstruction specialist, testified that he was called at 6:00

p.m. to report to the scene, and he arrived approximately fifty minutes later.

N.T., 11/19/15, at 5. He examined the scene and came back on March 25,

2013, to map the scene. Id. at 6. Trooper Wasko testified the roadway,

from fog line to fog line, measured 22.02 feet wide, with the westbound lane

being 10.86 feet wide and the eastbound lane being 11.18 feet wide. Id. at

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16-19, 37-38. He indicated the Suburban was 6.58 feet wide with a curb

weight of 5,743 pounds, and the Avalanche was 6.67 feet wide with a curb

weight of 5,652 pounds. Id. at 19, 48-49. The Avalanche was 18.5 feet

long. Id. at 47. The berm on the eastbound lane, from the fog line to the

guardrails, measured 3.03 feet. Id. at 38.

Trooper Wasko testified that he also analyzed both vehicles’ airbag

control modules, which electronically recorded the vehicles’ data, and

determined that the Suburban was traveling at 60 mph at two seconds

before impact, 44 mph at one second before impact, and 40 mph at half a

second before impact. Id. at 21-22. The Avalanche was traveling at 61

mph at two seconds before impact and 56 mph at one second before impact.

Id. at 23. There was no data as to half a second before impact for the

Avalanche. Id.

The trooper noted that he examined the vehicles and discovered that

the Avalanche had more frontal impact as compared to the Suburban, which

had more of an angled impact on the front passenger side. Id. at 24.

Trooper Wasko opined that the Suburban was attempting to avoid the

collision. Id. at 54-55. He also opined that, based on his analysis of the

accident scene and the damage to the vehicles, both vehicles were in the

eastbound lane when they collided. Id. at 27. He noted that the gouge

marks, scrapes, and scratches in the road, which occurred during the

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collision, revealed that the vehicles collided in the eastbound lane. Id. at

28.

Trooper Wasko opined that, when the vehicles collided, the Suburban

slid sideways from the eastbound lane across the center lane to the

westbound lane, and when it reached the muddy, soft shoulder, it tipped

onto its roof. Id. at 31. He testified that, upon collision, the Avalanche

spun in a clockwise manner, remained “right side up,” and landed parallel to

the eastbound guardrails in a westward direction. Id. at 31-32, 40.

Trooper Wasko explained that the Avalanche came to a rest in the westward

direction because of the mass and weight of the vehicles, combined with the

speed of impact, and the energy from the collision. Id. at 49-50. He

clarified that, during the collision, the vehicles touched each other for “a split

second” and “as they are impacting one or both [vehicles] are going to the

ground creating the gouges and [other] evidence[.]” Id. at 54. He noted

the vehicles then rebounded and, based on the transfer of energy, as well as

the direction the vehicles were traveling at the point of impact, physics

determined where the vehicle would end up. Id. at 54-55. He noted the

fact the Suburban “was already in a turning maneuver to try to avoid the

collision” determined the vehicle would continue in that direction after

impact, and the angle at which the Avalanche was hit meant that it could

“only go one way and it can only go clockwise and come backwards and

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spin, it [couldn’t] go any other way because the [Suburban] [was]

preventing it from going that way.” Id. at 55.

The defense presented the testimony of Diana Protzman, a rescue

worker for a nearby fire department. She testified that she responded to the

scene and approached Appellant, who was sitting in the driver’s seat of the

Avalanche. Id. at 83. She noticed that he had a laceration to his lip and

chin, as well as injuries to his ankle. Id. at 84. She placed gauze on his lip

and instructed him to hold it in place. Id. at 85. She indicated that she was

at about an arm’s length away from Appellant for four to five minutes. Id.

During this time, she did not detect an odor of alcohol coming from

Appellant and she did not observe any signs of intoxication. Id. at 86.

Appellant took the stand in his own defense, and he testified that he

retired from the United States Navy due to a medical disability involving his

heart and lower legs. Id. at 89. He denied consuming alcohol on March 1,

2013, and he denied driving his vehicle in the fashion described by Ms.

Dennison and her brother. Id. at 91-98. He testified that, as he was

approaching the area where the collision occurred, he was going the speed

limit and there were no cars in front of or behind him. Id. at 99.

Appellant indicated that, as he crested the hill “a black animal had

hopped out in front of [him] and [he] swerved to miss it.” Id. He clarified

that the animal came from his right. Id. He indicated that his reaction was

to jerk the steering wheel and then look in his rear view mirror to determine

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whether he had hit the animal. Id. at 99-100. He determined that he did

not hit the animal and when he looked forward again he saw “a vehicle

coming straight at [him].” Id. at 100. He indicated that his vehicle was

situated on his side of the road in the westbound lane and the opposing

vehicle was at an angle coming into his lane. Id. He tried to avoid the

collision, but he was unable to do so. Id. at 101. He noted his Avalanche’s

front passenger side hit the front passenger side of the Suburban. Id.

Appellant testified that, as he was being removed from the vehicle by

emergency personnel, he advised them that he had swerved to avoid a black

animal, which may have been a dog. Id. at 105-06. He noted that he also

told the woman in the ambulance, hospital personnel, Trooper Youngblood,

and the detective from the District Attorney’s Office that he had swerved to

miss a black dog or black animal. Id. at 108-09. He testified that the only

person with whom he had any verbal interaction at the accident scene was

Ms. Protzman. Id. at 110.

Appellant indicated that, during the ambulance ride to Arnot Ogden,

Ms. Prosser told him that he was being transported to a hospital in New

York, but since the accident occurred in Pennsylvania, he needed to sign a

consent form so that blood could be drawn. Id. at 111. Contrary to Ms.

Prosser’s testimony, Appellant testified that Ms. Prosser withdrew one vial of

blood from him while he was in the ambulance. Id. Appellant further

testified that, after he was taken into the Emergency Room, Ms. Prosser

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went out to the ambulance to retrieve the vial of blood, but he has no

knowledge of what happened to the blood after this time. Id. at 112-13.

Contrary to Nurse Caporaso’s testimony, Appellant denied that Nurse

Caporaso drew any pre-arrest blood samples from him while he was at Arnot

Ogden. Id. at 114. He admitted that she gave him an injection of a

narcotic for the pain. Id. at 115.

Appellant testified that, at approximately 8:00 p.m., Trooper

Youngblood arrived at Arnot Ogden, he asked Appellant to consent to a

blood draw, and Appellant consented, resulting in one vial of post-arrest

blood being drawn from his person by a nurse. Id. at 115-17. Appellant

further testified that Trooper Youngblood immediately took control of the vial

of blood.5 Id. at 117. He indicated that he informed Trooper Youngblood

that he had not consumed any alcohol on that day. Id. at 118. He noted

that, in May of 2013, he subsequently informed the detective from the

District Attorney’s Office that he had not consumed any alcohol on March 1,

2013; however, he admitted that he told the detective that he had taken a

muscle relaxer and consumed “some beers” the night before the accident.

Id. at 118-19. He denied that any beer cans fell out of his Avalanche on the

day of the accident. Id. at 124.

____________________________________________

5
As we indicated supra, the the results of this blood draw were suppressed
by the trial court.

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At the conclusion of all testimony, the jury convicted of Appellant of

the offenses indicated supra, and the trial court convicted Appellant of the

summary offenses indicated supra. Appellant filed a post-verdict motion

alleging the verdicts were not supported by sufficient evidence and/or the

verdicts were against the weight of the evidence. By order entered on

January 6, 2016, the trial court denied Appellant’s post-verdict motions, and

on January 7, 2016, Appellant proceeded to a sentencing hearing, at the

conclusion of which he was sentenced to an aggregate of 252 months plus

30 days in prison to 564 months in prison.6 Appellant was given 488 days of

credit for time served, and he filed timely post-sentence motions,7 which

were denied by operation of law on June 20, 2016. This timely counseled

appeal followed. The trial court directed Appellant to file a Pa.R.A.P.

1925(b) statement, Appellant timely complied, and the learned trial judge,

____________________________________________

6
Specifically, the trial court sentenced Appellant to the following: homicide
by vehicle-DUI, 60 months to 120 months in prison; homicide by vehicle-
DUI, 60 months to 120 months in prison; aggravated assault by vehicle-DUI,
48 months to 96 months in prison; homicide by vehicle-30 months to 84
months in prison; homicide by vehicle-30 months to 84 months in prison,
aggravated assault by vehicle-24 months to 60 months in prison, and
possession of a controlled substance-30 days in prison. The trial court
directed that all sentences be served consecutively to each other for an
aggregate of 252 months plus 30 days to 564 months in prison. The trial
court imposed fines with respect to each summary conviction.
7
In his post-sentence motion, Appellant alleged, inter alia, that the trial
court should have suppressed or precluded the use of his medical records
from Arnot Ogden as such violated his doctor-patient privilege and the trial
court abused its discretion in imposing Appellant’s sentence.

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the Honorable Maureen T. Beirne, filed a responsive Pa.R.A.P. 1925(a)

opinion on November 2, 2016.

Appellant presents the following issues for our review:

1. Whether the trial court erred in denying via operation of law
the motion for judgment of acquittal with respect to counts 6,
7, 8, 9, 10, 11, 14, 15, 16, 18, 20, and 21 where the
undisputed physical facts establish it was not possible for
[Appellant’s] vehicle to have been in the eastbound travel
lane of the highway at the time of the collision and therefore
the returned verdicts were not supported by sufficient
evidence?
2. Whether the trial court erred in finding that sufficient medical
evidence had been presented to establish the minor child had
suffered a serious bodily injury and therefore there was
insufficient evidence to support the convictions on counts 3
and 4?
3. Whether the trial court erred in denying the motion to
suppress the introduction of the hospital medical records and
contents of same related to a non-consensual medical
treatment blood draw when [Appellant] had not waived his
doctor/patient privilege with respect to those records?
4. Whether the trial court erred in imposing maximum
aggravated range minimum sentences, consecutive to each
other, for both homicide by vehicle-DUI and homicide by
vehicle-non-DUI where there was one collision which caused
two deaths?
5. Whether the trial court erred in imposing maximum
aggravated range minimum consecutive sentences for the
convictions of aggravated assault by motor vehicle-DUI and
aggravated assault by motor vehicle-non-DUI where there
was only one victim?
6. Whether the trial court erred in considering [Appellant’s]
perceived lack of remorse and prior criminal history as the
rationale supporting the imposed sentences?

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Appellant’s Brief at 5.8

With respect to Appellant’s first and second issues, Appellant presents

challenges to the sufficiency of the evidence sustaining certain convictions.

Specifically, he avers (1) all of his convictions, except for possession of a

controlled substance, are “dependent on the motor vehicle being operated

by [Appellant] in a westerly direction being physically situate in the

eastbound travel lane of the highway, in whole or in part[,]” see Appellant’s

Brief at 10, but the undisputed physical evidence does not support this

determination; and (2) with respect to aggravated assault by vehicle and

aggravated assault by vehicle-DUI, the alleged victim was C.M.; however,

the evidence was insufficient to prove that C.M. suffered a “serious bodily

injury” as is required for these convictions.

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
____________________________________________

8
We have renumbered Appellant’s issues for the ease of discussion.

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all evidence actually received must be considered. Finally, the
[finder] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all,
part or none of the evidence.
Further, in viewing the evidence in the light most favorable
to the Commonwealth as the verdict winner, the court must give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.

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

and quotation omitted).

In his first sufficiency challenge, Appellant specifically contends:

[I]t was not physically possible for the vehicle of
[Appellant] to have been in the eastbound lane, in whole or in
part, at the time of the collision and to spin in a clockwise
manner post-collision and come to rest facing eastbound in the
eastbound lane parallel with the guardrails without hitting the
road signs or guardrails. For [Appellant’s] vehicle to come to
rest where it did[,] it had to pivot at least 180 degrees from its
pivot point to its place of rest. It is factually undisputed the
length of the vehicle was 18.50 feet. It is also undisputed that
the distance from the center of the highway to the guardrails
was a total of 14.21 feet. It is not physically possible for an item
18.50 feet in length to swing through a space of 14.21 feet
without tearing down the street signs, without damaging or
uprooting the guardrails, and without suffering significant
damage to the passenger’s side of the vehicle behind the double
doors or to the rear. As the various photographs introduced into
evidence show, the street signs remained upright and intact, the
guardrails showed no damage, and there was no physical
damage to the passenger’s side of the motor vehicle or to the
rear.
***
The evidence establishing the physical impossibility of the
vehicle being in the eastbound travel lane at the time of the
collision comes from the undisputed true facts concerning the
width of the eastbound lane, the width of the berm, the presence
of the street signs along the eastbound lane, the presence of the
guardrails along the berm of the eastbound lane, the final resting
place of the vehicle, the clockwise spin of the vehicle, and the

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total lack of damage to the vehicle which would exist if contact
was made with the obstacles abutting the eastbound lane.

Appellant’s Brief at 12.

As the trial court explained in its Rule 1925(a) opinion, Appellant’s

argument that the evidence revealed it was “physically impossible” for his

vehicle to have been in the eastbound lane during the collision is contrary to

the testimony of three eyewitness to the crash (Mr. Amentler, Mr. Kipferl,

and C.M.), who all testified that they observed Appellant’s Avalanche driving

in the eastbound lane when it collided with the Suburban. Further,

Appellant’s argument is contrary to the testimony of the Commonwealth’s

accident reconstruction expert, Trooper Wasko, who, after explaining his

findings and analysis, opined that both vehicles were in the eastbound lane

when they collided. Accordingly, viewing the evidence in the light most

favorable to the Commonwealth, as verdict winner, we conclude the

evidence sufficiently established that Appellant was driving his Avalanche in

the eastbound lane at the time of the collision. See Harden, supra.

We note that Appellant’s suggestion of “physical impossibility” is based

on his theory that, if his vehicle was in the eastbound lane upon impact,

there would have been damage to street signs, the eastbound guardrail, and

the passenger side/rear of his vehicle, none of which existed in this case.

However, inasmuch as the jury (and the trial court with regard to the

summary offenses) was free to weigh the evidence and make the necessary

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credibility determinations, including considering the absence of damage, we

reject Appellant’s claim. See id.

Appellant’s next specific sufficiency claim is that, with respect to his

convictions for aggravated assault by vehicle and aggravated assault by

vehicle-DUI, the evidence was insufficient to prove that the victim (thirteen-

year-old C.M.) suffered a “serious bodily injury” as is required for these

convictions.

The Motor Vehicle Code relevantly provides as follows:

§ 3732.1. Aggravated assault by vehicle
(a) Offense.—Any person who recklessly or with gross
negligence causes serious bodily injury to another person while
engaged in the violation of any law of this Commonwealth of
Pennsylvania or municipal ordinance applying to the operation or
use of a vehicle or to the regulation of traffic, except section
3802 (relating to driving under influence of alcohol or controlled
substance), is guilty of aggravated assault by vehicle, a felony of
the third degree when the violation is the cause of the injury.

75 Pa.C.S.A. § 3732.1(a) (bold in original).9

§ 3735.1. Aggravated assault by vehicle while driving
under the influence
(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 the influence of alcohol or
controlled substance) and who is convicted of violating section
____________________________________________

9
Section 3732.1 was amended on November 4, 2016, effective in 60 days;
however, since the amendments post-date Appellant’s offense, they are not
applicable to this matter. The same is true for 75 Pa.C.S.A. § 3732, which
we discuss infra.

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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) (bold in original).

With respect to the sole element challenged by Appellant, that of

“serious bodily injury,” the Motor Vehicle Code defines such as “[a]ny 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. Serious bodily injury

encompasses varying degrees of injury. See Commonwealth v. Spotti, 94

A.3d 367, 381 (Pa.Super. 2014) (en banc ) (finding evidence sufficient to

support determination that victim suffered “serious bodily injury” when

victim suffered bone infection in arm injured in car crash, spent almost a

week in the hospital following surgery to combat infection, and continues to

have limited use of arm); Commonwealth v. Caterino, 678 A.2d 389

(Pa.Super. 1996) (holding serious bodily injury existed where the victim

underwent surgery to repair severed artery).

In the case sub judice, we conclude the evidence was sufficient to

sustain the jury’s finding that C.M. suffered “serious bodily injury.” As the

trial court aptly reasoned:

Dr. Matthew Brann, an orthopedic surgeon who treated the
child victim, C.M., testified. [He indicated] C.M. suffered a
growth plate injury to his right wrist that was displaced and had
to be reduced in the emergency room the night of the collision.
C.M. was in a cast until April 11, 2013. He also had a bowel
perforation, Jejunum Perforation, which is the small bowel, an
ulcer, a hematoma on Duodenum[,] which is also the small

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bowel[,] and injuries to his transfer colon which were surgically
treated. Dr. Brann testified that such injuries created a
significant risk of infection and ultimately septic shock which in
turn could cause death. C.M. was in the hospital for twelve days
as a result of the injuries and surgery.

Trial Court Opinion, filed 10/27/16, at 10 (citations to record omitted).

The trial court’s findings are supported by the record, and we agree

with the trial court that such injuries constitute “serious bodily injury.” See

75 Pa.C.S.A. § 102. Accordingly, we reject Appellant’s sufficiency claim.

Appellant’s next claim is that the trial court erred in refusing to

suppress or preclude the Commonwealth from using his medical records

from the Arnot Ogden Emergency Room, particularly the records concerning

the pre-arrest draw of Appellant’s blood at 5:30 p.m. and the resulting BAC.

Appellant presents two specific arguments with regard to this claim: (1)

Despite the fact the blood at issue was drawn and tested by order of Dr.

Haluska for medical purposes only, the Commonwealth was required to

prove that Appellant voluntarily consented to the drawing and testing of his

blood, and (2) the Commonwealth’s use of Appellant’s medical records

violated Appellant’s doctor-patient privilege.

With regard to Appellant’s first specific argument, Appellant avers that,

since there is no evidence that he voluntarily consented to the warrantless

blood draw, his medical records pertaining thereto ought to have been

suppressed. Appellant cites to the United States Supreme Court’s recent

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decision in Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160

(2016), in support of his lack of consent claim.

Birchfield was decided on June 23, 2016, after Appellant’s trial and

sentencing but while his current, direct appeal was pending. Pertinent to the

issue before us, in Birchfield, the U.S. Supreme Court analyzed the

constitutionality of blood and breath tests under the Fourth Amendment

guarantee against unreasonable searches and seizures. The High Court

found that the Fourth Amendment permits a warrantless breath test incident

to an arrest for drunk driving. Id. A blood test, however, because of its

intrusive nature, requires a warrant to comport with Fourth Amendment

requirements. Id.

Additionally, the U.S. Supreme Court held that blood tests taken

pursuant to certain implied consent laws are an unconstitutional invasion of

privacy. Id. The High Court held that motorists cannot be deemed to have

consented to submit to a blood test “on pain of committing a criminal

offense.” Id. at 2186. Thus, in applying this ruling to one of the three

consolidated cases before it—where the driver had consented to a blood

draw after being informed that his refusal to do so could be criminally

penalized—the U.S. Supreme Court in Birchfield remanded for the trial

court to “reevaluate [that individual’s] consent given the partial inaccuracy

of the officer’s advisory.” Id. at 2186.

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Subsequent to Birchfield, this Court decided Commonwealth v.

Evans, 153 A.3d 323 (Pa.Super. 2016), wherein Evans was arrested and

charged with two counts of DUI. In January of 2014 (prior to Birchfield),

Evans filed a motion to suppress his BAC results on the basis his consent to

the blood draw was involuntary and coerced by the police as he agreed to

the blood draw only after the police provided him with the implied consent

warnings required by 75 Pa.C.S.A. § 1547, during which he was informed

that if he did not submit to the test he would face harsher penalties.

Following a suppression hearing, the lower court denied Evan’s motion to

suppress, Evan was convicted and sentenced on the DUI offenses, and he

filed an appeal to this Court.

Similar to Appellant in the case sub judice, Birchfield was issued

during the pendency of Evan’s direct appeal. In Evans, after concluding

Evans had consented to the blood draw only “after being informed, by the

police, that refusal to submit to the test could result in enhanced criminal

penalties[,]” id. at 331, this Court applied Birchfield and relevantly held:

Since Birchfield held that a state may not “impose
criminal penalties on the refusal to submit to [a warrantless
blood] test,” the police officer’s advisory to [Evans] was partially
inaccurate. Therefore, we must vacate [Evan’s] judgment of
sentence, vacate the suppression court’s order, and remand the
case to the trial court to “reevaluate [Evans’] consent...[, based
on] the totality of the circumstances...[and] given the partial
inaccuracy of the officer’s advisory.”

Evans, 153 A.3d at 331 (quotation omitted).

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Unlike in Evans, in the case sub judice, we need not determine

whether Birchfield and its progeny are applicable to Appellant’s claim that

the Commonwealth was required to prove that Appellant consented to his

blood being drawn and tested, despite the fact such was done upon order of

Dr. Haluska for medical purposes.

As noted, the High Court decided Birchfield after Appellant’s trial and

sentencing in this case but during the pendency of this appeal. The decision

announced a new criminal rule of law. Where a United States Supreme

Court decision “results in a ‘new rule,’ that rules applies to all criminal cases

still pending on direct review.” Schriro v. Summerlin, 542 U.S. 348, 351,

124 S.Ct. 2519, 2522 (2004) (citation omitted). However, “[c]ase law is

clear...that in order for a new rule of law to apply retroactively to a case

pending on direct appeal, the issue had to be preserved at ‘all stages of

adjudication up to and including the direct appeal.’” Commonwealth v.

Tilley, 566 Pa. 312, 318, 780 A.2d 649, 652 (2001) (quoting

Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146, 148 (1983)).10

As indicated supra, in Evans, the voluntariness of the blood draw was

presented to the lower court in a pre-trial suppression motion. Here,

____________________________________________

10
There is an exception to the issue-preservation requirement where the
challenge is one implicating the legality of an appellant’s sentence. See
Commonwealth v. Barnes, ___ Pa. ___, 151 A.3d 121, 124 (2016).
However, Appellant’s challenge does not relate thereto.

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although Appellant filed several pre-trial motions seeking to suppress and/or

preclude his pre-arrest BAC, Appellant did not challenge or present any claim

that his pre-arrest blood draw/testing was involuntary, performed without

his consent, and/or was coerced. Rather, as the trial court indicates in its

Rule 1925(a) opinion, Appellant presented this specific claim for the first

time in his court-ordered Rule 1925(b) statement. Consequently, Appellant’s

failure to raise the issue of his consent to the blood draw and testing in the

trial court precludes our review of the claim.11 See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”); Commonwealth v. Watson, 835 A.2d 786

(Pa.Super. 2003) (holding the failure to raise an issue in the trial court may

not be cured by submitting the issue for the first time in a Rule 1925(b)

statement).

With regard to Appellant’s second specific argument, Appellant avers

the trial court erred in refusing to preclude the Commonwealth from using

his medical records (particularly his pre-arrest BAC from blood drawn at

5:30 p.m. at Arnot Ogden for medical purposes) as the Commonwealth’s use

of such violated Appellant’s doctor-patient privilege. In this regard,

Appellant argues that his medical records containing his pre-arrest BAC are
____________________________________________

11
On appeal, Appellant offers no argument that he is entitled to retroactive
application of Birchfield, despite his failure to preserve his challenge to the
voluntariness or lack of consent in the trial court.

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privileged under New York’s statutory and case law related to the doctor-

patient privilege in criminal cases, but that there is no such impediment to

the Commonwealth’s use of his medical records in a criminal case under

Pennsylvania’s statutory and case law. Thus, Appellant argues that New

York’s and Pennsylvania’s laws are in conflict, and in weighing the sister

states’ interests, the trial court erred in determining that Pennsylvania’s

interest was greater than New York’s interest, thus holding Appellant’s

medical records were admissible.

Initially, we note that Appellant raises a question of law, and

therefore, our standard of review is de novo and our scope of review is

plenary.12 See Commonwealth v. Williams, 125 A.3d 425, 428

(Pa.Super. 2015) (holding that issue of conflict of law is a pure question of

law).
____________________________________________

12
Citing to In re L.J., 622 Pa. 126, 79 A.3d 1073 (2013), Appellant
suggests that the trial court was required to hold an evidentiary hearing
prior to ruling on the instant issue since the issue was one seeking
suppression of evidence, i.e., his medical records. That is, he contends that
our scope of review is limited to the evidentiary record that was created at
the suppression hearing, and since there was no hearing, a remand is
necessary.
We conclude Appellant has mischaracterized the trial court’s ruling as
a “suppression ruling.” The record reveals that Appellant presented his issue
to the trial court as one seeking to preclude or suppress the evidence. The
trial court addressed the issue in the nature of a motion in limine seeking to
preclude evidence of Appellant’s medical records under New York’s
physician-patient privilege. Since the issue involved purely a question of
law, Appellant has not explained how he was prejudiced by the trial court
failing to hold an evidentiary hearing on the issue. Thus, no remand is
necessary on this basis.

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As our Supreme Court has held:

In Pennsylvania, we do not apply our law just because we
have jurisdiction. Rather, we have adopted a flexible choice of
law rule which weighs the interests our sister states may have in
the transaction. This concept was formally adopted for criminal
cases in Commonwealth v. Sanchez, 552 Pa. 570, 716 A.2d
1221, 1224 (1998).
To start this analysis, we first note that procedural rules
and substantive law require separate considerations. It is a
fundamental principle of conflicts of laws that a court will use the
procedural rules of its own state. “That is true in both civil and
criminal cases, but especially in criminal cases as a sort of
corollary to the local nature of substantive criminal law.
Procedures in criminal cases are always those of the forum.”
Leflar, American Conflicts Law, Fourth Edition, § 116 (1977).
Procedural rules are “that which prescribe the methods of
enforcing rights.” Commonwealth v. Sanchez, 716 A.2d at
1224. On the other hand, substantive law “gives or defines the
right.” Id.

Commonwealth v. Eichinger, 591 Pa. 1, 19-20, 915 A.2d 1122, 1133

(2007).

Here, the narrow issue presented (whether the physician-patient

privilege precluded the Commonwealth from utilizing Appellant’s Arnot

Ogden medical records, including his pre-arrest BAC from blood drawn at

5:30 p.m. solely for medical purposes) does not involve a procedural law;

but rather, a substantive right. See Commonwealth v. Olivo, 633 Pa.

617, 127 A.3d 769 (2015) (holding statute allowing expert testimony

regarding victims’ responses to sexual violence statute is a rule of evidence

and statute is substantive rather than procedural); Sanchez, 552 Pa. at

576, 716 A.2d at 1224 (“A substantive right is defined as a right to equal

enjoyment of fundamental rights, privileges, and immunities[.]”) (citation

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omitted)). Therefore, the issue must be addressed under the principles of

conflict between substantive laws. Eichinger, supra.

As noted before, our choice of law rule when there is a
conflict between the substantive criminal laws of this
Commonwealth and those of a sister state, requires that we
analyze the policies and interests underlying the rule of each
state so that the policy of the jurisdiction most immediately
concerned will be applied. But it remains implicit in this analysis
that there be a conflict between the substantive law of New
[York] and the law of Pennsylvania.

Id. at 20, 915 A.2d at 1133 (citation omitted).

In arguing there is a conflict, Appellant points to the following New

York statute:

§ 4504. Physician, dentist, podiatrist, chiropractor and
nurse
(a) Confidential information privileged. Unless the patient
waives the privilege, a person authorized to practice medicine,
registered professional nursing, licensed practical nursing,
dentistry, podiatry or chiropractic shall not be allowed to disclose
any information which he acquired in attending a patient in a
professional capacity, and which was necessary to enable him to
act in that capacity.

N.Y. CPLR 4504(a) (McKinney). See N.Y. CLS CPLR 101 (providing that the

CPLR governs proceedings in all courts of the state). Further, Appellant cites

to Dillenbeck v. Hess, 73 N.Y.2d 278, 289, 539 N.Y.S.2d 707, 536 N.E.2d

1126 (1989), in which the New York appeals court held:

[H]ospital records relating to [a] defendant’s physical condition
and blood alcohol content following [an] accident—indisputably
falls within the scope of the physician-patient privilege as
information acquired by a physician ‘in attending [a defendant]
in a professional capacity, and which was necessary to enable
him to act in that capacity.’

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Id. at 289, 539 N.Y.S.2d at 714 (quoting N.Y. CPLR 4504). This general

legal precept has been extended by the New York appeals courts to criminal

cases involving medical records including blood test results for treatment

purposes.13 See People v. Elysee 49 A.D.3d 33, 876 N.Y.S.2d 677, 847

N.Y.S.2d 654 (2007), affirmed, 12 N.Y.3d 100, 904 N.E.2d 813 (2009).

With respect to Pennsylvania’s statute on the matter, Appellant points

to 42 Pa.C.S.A. § 5929, which provides the following:

§ 5929. Physicians not to disclose information
No physician shall be allowed, in any civil matter, to disclose any
information which he acquired in attending the patient in a
professional capacity, and which was necessary to enable him to
act in that capacity, which shall tend to blacken the character of
the patient, without consent of said patient, except in civil
matters brought by such patient, for damages on account of
personal injuries.

42 Pa.C.S.A. § 5929. Pennsylvania appellate courts have held that generally

“in Pennsylvania, the physician-patient privilege does not apply in criminal

proceedings.” Commonwealth v. Ellis, 608 A.2d 1090, 1092 (Pa.Super.

1992) (citation omitted).

____________________________________________

13
However, the New York appellate courts have not extended the physician-
patient privilege to a defendant’s blood sample itself. People v. Drayton,
56 A.D.3d 1278, 1278, 867 N.Y.S.2d 825, 826 (2008) (“[U]nlike hospital
records and diagnostic test results concerning a defendant’s blood [alcohol]
content, a blood sample does not constitute information communicated to a
physician from a patient to invoke the physician-patient privilege[.]”)
(citations omitted)).

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Therefore, Appellant is correct that there is a conflict between the

sister states’ general substantive rules of law regarding the physician-patient

privilege and its application to criminal cases. Accordingly, we turn to an

analysis of the states’ policies and interests underlying the issue so that we

may determine which law should be applied. See Sanchez, supra. “This

approach gives the state having the most interest in the question paramount

control over the legal issues arising from a particular factual context,

thereby allowing the forum to apply the policy of the jurisdiction most

intimately concerned with the outcome.” Commonwealth v. Housman,

604 Pa. 596, 630, 986 A.2d 822, 842 (2009) (quotation marks and

quotation omitted).

Here, in weighing the competing policies and interests, we find no

error of law in the trial court’s conclusion that Pennsylvania is the jurisdiction

having the greater interest in the propriety of the Commonwealth using

Appellant’s Arnot Ogden medical records, and particularly his pre-arrest

BAC. Thus, the trial court properly held that Pennsylvania law should apply.

In this regard, we recognize the purpose of N.Y. CPLR 4504 and the

New York legislative intent in enacting the statutory physician-patient

privilege “is to protect those who are required to consult with physician[s]

from the disclosure of secrets imparted to physician[s], to protect the

relationship of patient and physician[,] and to prevent physicians from

disclosing information which might result in humiliation, embarrassment, or

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disgrace to patients.” People v. Abdul Karim Al-Kanani, 33 N.Y.2d 260,

[264], 351 N.Y.S.2d 969, 307 N.E.2d 43 (1973) (quotation marks,

quotations, and citations omitted). We agree with the trial court that this is

certainly “an important concern.” See Trial Court Opinion, filed 11/2/16, at

8. However, the aim of the New York statute is not to protect those who

have committed a crime or to avoid the imposition of criminal penalties.

Pennsylvania has an interest in protecting its citizens from intoxicated

drivers and to prosecute such drivers, particularly where such driving causes

fatalities. In the case sub judice, the motor vehicle collision and deaths

occurred entirely in Pennsylvania, the Pennsylvania State Police investigated

the collision, and the victims of the collision were residents of Pennsylvania.

Further, the sole reason Appellant’s blood was drawn at a New York hospital

is because the accident occurred in a remote area of Pennsylvania, and due

to Appellant’s urgent need for treatment, he was taken to the nearest

hospital, which was over the border in New York.

Accordingly, while New York has a valid interest in protecting its

statutorily-created physician-patient privilege, in the case sub judice, this

interest does not outweigh Pennsylvania’s interest in securing Appellant’s

medical records and pre-arrest BAC results. Thus, we conclude that

Pennsylvania has the greater interest in the legality of the use of Appellant’s

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medical records, and therefore, the trial court properly concluded

Pennsylvania law should apply.14

Appellant’s next claim is that his sentence is illegal since the trial court

failed to merge his conviction on two counts of homicide by vehicle, 75

Pa.C.S.A. § 3732, with his conviction on two counts of homicide by vehicle-

DUI, 75 Pa.C.S.A. § 3735. Appellant argues that there were two victims

who died, Mr. and Mrs. English, their deaths arose from one single criminal

episode, and homicide by vehicle is a lesser-included offense of homicide by

vehicle-DUI. Consequently, he avers the crimes should have merged for

sentencing purposes, resulting in him being sentenced on two counts of the

greater offense (homicide by vehicle-DUI) but not on two counts of the

lesser offense (homicide by vehicle).

“A claim that the trial court imposed an illegal sentence by failing to

merge sentences is a question of law. Accordingly, our standard of review is

plenary.” Commonwealth v. Snyder, 870 A.2d 336, 349 (Pa.Super. 2005)

(quotation marks and quotation omitted). We begin our examination of

Appellant’s merger claim by reviewing the statutory provisions pertinent to

his challenged convictions.

The Motor Vehicle Code defines homicide by vehicle-DUI as follows:

____________________________________________

14
Appellant has advanced no argument indicating that, if Pennsylvania’s law
regarding the physician-patient privilege is applicable, the trial court erred in
its application thereof.

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Any person who unintentionally causes the death of 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 is guilty of a felony of
the second degree when the violation is the cause of death and
the sentencing court shall order the person to serve a minimum
term of imprisonment of not less than three years. A consecutive
three-year term of imprisonment shall be imposed for each
victim whose death is the result of the violation of section 3802.

75 Pa.C.S.A. § 3735(a).

The Motor Vehicle Code defines homicide by vehicle as follows:

Any person who recklessly or with gross negligence causes the
death of another person while engaged in the violation of any
law of this Commonwealth or municipal ordinance applying to
the operation or use of a vehicle or to the regulation of traffic
except section 3802 (relating to driving under influence of
alcohol or controlled substance) is guilty of homicide by vehicle,
a felony of the third degree, when the violation is the cause of
death.

75 Pa.C.S.A. § 3732(a).

Regarding the merger of sentences, the legislature has provided that:

No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.

42 Pa.C.S.A. § 9765. “The statute’s mandate is clear. It prohibits merger

unless two distinct facts are present: 1) the crimes arise from a single

criminal act; and 2) all of the statutory elements of one of the offenses are

included in the statutory elements of the other.” Commonwealth v.

Baldwin, 604 Pa. 34, 39, 985 A.2d 830, 833 (2009).

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In the case sub judice, assuming, arguendo, the crimes arose from a

single criminal act, we disagree with Appellant that “all of the statutory

elements of one of the offenses are included in the statutory elements of the

other.” Id. In this regard, we note that, in Commonwealth v. Neupert,

684 A.2d 627 (Pa.Super. 1996), this Court held that homicide by vehicle-

DUI and homicide by vehicle do not merge. Specifically, we held:

The elements of Homicide by Vehicle are not included in the
elements of Homicide by Vehicle-DUI. In fact, the crimes
require proof of different elements. Homicide by Vehicle
requires the cause of death to be the result of a violation of a
motor vehicle law or ordinance other than a DUI violation; for
example,[ as the appellant pled guilty to in Neupert,] racing on
highway and failure to yield. On the other hand, Homicide by
Vehicle-DUI explicitly requires a DUI conviction as an element of
the crime.

Id. at 629. See Commonwealth v. Collins, 564 Pa. 144, 764 A.2d 1056

(2001) (adopting Neupert’s analysis and holding homicide by vehicle and

homicide by vehicle-DUI do not merge for sentencing purposes since the

legislature crafted the statutory elements of the two offenses as mutually

exclusive as homicide by vehicle requires a non-DUI Vehicle Code conviction,

while homicide by vehicle-DUI requires a DUI conviction).

In the instant case, in addition to DUI, Appellant was convicted of

numerous laws relating to the use of his vehicle/the regulation of traffic.

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Thus, Neupert and Collins15 are on point, and we conclude the crimes of

homicide by vehicle and homicide by vehicle-DUI did not merge for

sentencing purposes. Consequently, we reject Appellant’s instant claim.16

Appellant’s next claim is that his sentence is illegal since the trial court

failed to merge his aggravated assault by vehicle conviction, 75 Pa.C.S.A. §

3732.1, with his conviction for aggravated assault by vehicle-DUI conviction,

75 Pa.C.S.A. § 3735.1. Appellant argues that there was one victim (C.M.),

the crimes arose from one single criminal episode, and aggravated assault

by vehicle is a lesser-included offense of aggravated assault by vehicle-DUI.

Accordingly, he avers the crimes should have merged for sentencing

purposes.

Assuming, arguendo, the crimes arose from a single criminal act, we

disagree with Appellant that “all of the statutory elements of one of the

offenses are included in the statutory elements of the other.” Baldwin, 604

at 39, 985 A.2d at 833. Similar to the statutes for homicide by vehicle and

homicide by vehicle-DUI, the legislature has crafted the statutory elements

of aggravated assault by vehicle and aggravated assault by vehicle-DUI as

mutually exclusive since aggravated assault by vehicle requires a non-DUI
____________________________________________

15
We note that 42 Pa.C.S.A. § 9765 was enacted after the decisions in
Neupert and Collins; however, the appellate courts’ analysis in these cases
is consistent with Section 9765.
16
Appellant recognizes the Supreme Court’s holding in Collins and notes he
is raising the merger issue for purposes of preservation.

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Vehicle Code conviction, while aggravated assault by vehicle-DUI requires a

DUI conviction. See 75 Pa.C.S.A. § 3732.1 and 3735.1.17 Consequently, for

similar reasons as those set forth supra in rejecting Appellant’s merger claim

related to homicide by vehicle and homicide by vehicle-DUI, we reject

Appellant’s instant merger claim.

In his final claim, Appellant alleges the trial court abused its discretion

in considering improper factors in imposing individual sentences in the

aggravated range. Specifically, Appellant contends that the sentencing court

(1) improperly considered and punished him by considering his lack of

remorse and (2) improperly “double-counted” his prior criminal history.

A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136 (Pa.Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue:

We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see [Pa.R.Crim.P. 720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

____________________________________________

17
The text of the statutes is set forth supra in connection with our discussion
of Appellant’s sufficiency of the evidence claim.

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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006) (citations

omitted).

Here, Appellant filed a timely notice of appeal and a timely post-

sentence motion adequately preserving his discretionary aspect of

sentencing claims. Further, he included a separate Pa.R.A.P. 2119(f)

statement in his appellate brief. As to whether Appellant has presented a

substantial question, we note the following:

The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists only when the appellant advances a colorable
argument that the sentencing judge's actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation,

quotation marks, and quotation omitted).

This Court has previously found a substantial question to have been

raised when an appellant alleged the sentencing court improperly considered

the appellant’s failure to express remorse. Commonwealth v. Bowen, 975

A.2d 1120 (Pa.Super. 2009). Further, we have found the claim the

sentencing court improperly “double-counted” an appellant’s prior criminal

history when considering his sentence because his past criminal convictions

were already taken into account when his prior record score was calculated

raises a substantial question. Commonwealth v. Goggins, 748 A.2d 721

(Pa.Super. 2000) (en banc). Accordingly, we conclude Appellant has

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presented a substantial question and will proceed to review the merits of his

claims.

It is well-settled that:

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)

(quotation omitted).

In rejecting Appellant’s claim, the trial court relevantly indicated the

following:

[Appellant] argues that the court erred in weighing its
conclusion that [Appellant] “lacked remorse” in determining that
it was appropriate to impose sentences in the aggravated range
as this violates [Appellant’s] presumption of innocence and
violates his Constitutional rights. [Appellant’s] claim is meritless.
On January 7, 2016, after consideration of a pre-sentence
investigation report, statement by defense counsel[,] and
testimony presented on behalf of the Commonwealth,
[Appellant] was sentenced in the aggravated range as follows:
Two counts of Homicide by Vehicle While Driving
Under the Influence 60-120 months[.]
One count of Aggravated Assault by Vehicle While
Driving Under the Influence 48-96 months[.]
Two counts of Homicide by Vehicle 30-84 months.
One Count of Aggravated Assault by Vehicle 24-60
months.
“When imposing a sentence, the sentencing court must consider
the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the

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protection of the public, gravity of the offense in relation to [the]
impact on [the] victim and community, and rehabilitative needs
of the defendant....” “And, of course, the court must consider
the sentencing guidelines.”
***
The reasons [the sentencing court imposed] sentences in
the aggravated range [were] set forth as follows:
“[T]his is [Appellant’s] fifth [DUI] charge in his
lifetime—five, five times. As the Commonwealth
aptly stated, [he] didn’t learn his [lesson] the first
[time], he didn’t learn the second time, [he] didn’t
learn the third time, he didn’t learn the fourth time,
so here we are. Has he learned now?...[The court
doesn’t] think he has. [The court] thinks that he, as
one of the witnesses here today state[d], he—
[Appellant] has shown absolutely no remorse, he
showed no, no sorrow or remorse through the trial,
he showed no remorse here today. Even if he didn’t
take responsibility for—for the accident or take
responsibility for his actions or drinking and driving
or violating the law and causing an accident, he has
never shown any remorse that he was involved in an
accident where people were seriously injured and the
parents of these young children died as a result of
the accident.”
[N.T., 1/7/16, at 43].
Further, the court noted, “The sentence will...protect our
community and any other community that [Appellant] resides in
[with the] hope that he will not be consuming alcohol and
getting behind the wheel of a vehicle again.” [Id.] The pre-
sentence investigation was considered, noting the number of
previous [DUI] convictions [Appellant] had between 2008 and
2009. [Id. at 34]. It was also noted [Appellant] had been
charged with [DUI] in 2012 in Tioga County, New York and was
out on bail when the instant offense was committed. [Id.]
[Appellant’s] driving record is atrocious, beginning in 1992 with
numerous exceeding maximum speed limits, suspensions for the
prior [DUI] convictions, failure to keep right, aggravated
unlicensed traffic device violations, red light violation, and
speeding. [Id. at] 36-37.

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[Appellant’s] focus on lack of remorse is misplaced. The
trial court indicated that even claiming the accident was not his
fault, [Appellant] showed no remorse for being in an accident
when individuals died. There were many other reasons for an
aggravated range as set forth above.
Clearly, the protection of the public, as well as the gravity
of the offense as it relates to the impact on the lives of the
surviving victims,...and the rehabilitative needs of [Appellant]
[required] sentences within the aggravated range.

Trial Court Opinion, filed 10/27/16, at 18-21 (quotations omitted).

We find no abuse of discretion in this regard. Specifically, this Court

has held that “it is undoubtedly appropriate for a trial court to consider a

defendant’s lack of remorse as a factor at sentencing, provided that it is

specifically considered in relation to protection of the public, the gravity of

the offense, and the defendant’s rehabilitative needs.” Bowen, 975 A.2d at

1125. Here, the record reveals the trial court properly considered Appellant’s

lack of remorse in this regard.

Moreover, as to Appellant’s claim the trial court “double-counted” his

prior criminal history, while the trial court emphasized Appellant’s repeated

DUIs and lengthy driving record, it relied upon numerous factors in imposing

the sentences. See Commonwealth v. Mills, 496 A.2d 752, 753-54

(Pa.Super. 1985) (stating that courts are allowed to consider prior conviction

history along with previous unsuccessful attempts to rehabilitate among

other factors). Finally, we note the trial court specifically indicated it had

reviewed Appellant’s pre-sentence investigation report, and thus “we can

assume the sentencing court was aware of relevant information regarding

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[Appellant’s] character and weighed those considerations along with

mitigating statutory factors.” Commonwealth v. Corley, 31 A.3d 293, 298

(Pa.Super. 2011). Accordingly, we find no merit to Appellant’s discretionary

aspects of sentencing claims.

For all of the foregoing reasons, we affirm.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/25/2017

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4189274. Public record. Not legal advice.