Com. v. Lapham, M.

J-S38003-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MARK JAMES LAPHAM :

:

Appellant : No. 262 MDA 2020

Appeal from the Judgment of Sentence Entered November 26, 2019,

in the Court of Common Pleas of Berks County,

Criminal Division at No(s): CP-06-CR-0004379-2018.

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 24, 2020

Mark James Lapham appeals from the judgment of sentence imposed

after the trial court convicted him in a bench trial of accident involving death

or personal injury while not properly licensed (“AIDPI”), and four summary

convictions under the Vehicle Code: driving while operating privilege is

suspended or revoked, driving on roadways land for traffic, careless driving,

and driving vehicle at safe speed.1 On appeal, Lapham challenges the

sufficiency and the weight of the evidence supporting each conviction, as well

as a challenge to the discretionary aspects of his sentence. After careful

review, we affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 See 75 Pa.C.S.A. §§ 3742.1, 1543(a), 3309(1), 3714(a), and 3361,

respectively.

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The trial court summarized the pertinent facts as follows:

During the 5 p.m. hour on Friday, July 27, 2018,

[Lapham] was traveling westbound in the right lane of a

segment of US 422 known as the West Shore Bypass.

During this seven-mile segment, US 422 is a limited-access

highway with six interchanges, including the “Penn

Street/Penn Avenue” cloverleaf interchange in West

Reading, Berks County. [Lapham] was driving a silver Jeep

Compass.

At the same time, Placido Santana was using the

westbound entrance ramp lane from Penn Street/Penn

Avenue (US 422 Business) trying to merge onto the West

Shore Bypass. This entrance ramp is located on the right

side of US 422 and is the final ramp of this interchange for

vehicles traveling west. This interchange is very tight, and

this westbound ramp is especially tricky because US 422

Business intersects/merges into US 422 west within a curve.

During a non-jury trial held May 20, 2019, Santana

testified via an interpreter that [Lapham] rear-ended him

while Santana was completely within the entrance ramp

lane. Santana stated there was at least one car in front of

him on the entrance ramp waiting to merge onto US 422,

and that at no time prior to the accident did he leave the

entrance ramp lane.

It is undisputed that Santana had proceeded beyond the

yield signs and was located within the acceleration portion

of the lane close to the junction of the ramp and freeway

when he was hit; however, given the time of day (evening

rush hour on a weekday) traffic on the ramp was at or near

a standstill as cars waited for a chance to merge from US

422 Business (Penn Street/Penn Avenue westbound) onto

US 422 westbound (West Shore Bypass). It is also

undisputed that after striking Santana’s vehicle, [Lapham’s]

Jeep Compass veered right and crashed into the guardrail.

[Lapham’s] vehicle came to a stop before the entrance ramp

terminated (i.e., at a point of the highway where a portion

of the US 422 Business ramp was still clearly marked).

Trial Court Opinion, 4/8/20, at 2 (citation to record omitted).

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The trial court also noted that testimony from the police officer who

responded to the accident and spoke with Lapham at the scene, differed from

Lapham’s testimony. The court explained this disparity as follows:

To summarize, Santana testified that he never left the

entrance ramp lane. Officer [Kyle] Bohn testified that

[Lapham] told him at the time of the accident that he

([Lapham]) swerved from his through lane to avoid a vehicle

stopped in his lane ahead of him, and in doing so rear-ended

Santana. [Lapham] testified that Santana started to enter

US 422 from the ramp, and that [Lapham] swerved to avoid

Santana. [Lapham] further testified that Santana then

turned back into the entrance ramp lane (“we did kind of

like a twist or type of a motion”), and that is why the rear-

end collision took place in the ramp lane rather than the

through lane.

Trial Court Opinion, 4/8/20, at 5.

The court convicted Lapham on all of the charges. Although the trial

court scheduled sentencing for June 24, 2019, Lapham failed to appear, and

the court issued a bench warrant for his arrest. Lapham was detained on

November 26, 2019. That same day, the trial court sentenced Lapham to a

two-year probationary term for the accident involving death or personal injury

while not properly licensed, and imposed fines for summary convictions.

Lapham filed a timely post-sentence motion in which he challenged the

sufficiency and weight of the evidence supporting his convictions and a

discretionary challenge to the sentence the trial court imposed. The trial court

denied the motion. This appeal followed. Both Lapham and the trial court

have complied with Pa.R.A.P. 1925.

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As noted above, on appeal, Lapham challenges the sufficiency and the

weight of the evidence supporting his AIDPI conviction, as well as three of his

four traffic offenses.2 In addition, Lapham challenges the discretionary

aspects of his sentence.

With regard to Lapham’s sufficiency challenges, we first reiterate our

scope and standard of review for such claims, and then we will address the

evidence supporting each conviction separately.

I.

With regard to his sufficiency challenge, our standard and scope of

review are well settled:

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

____________________________________________

2 Lapham acknowledges that his challenge to the sufficiency of the evidence

supporting his fourth summary offense, driving while operating privilege is

suspended or revoked, is waived on appeal because trial counsel conceded

this fact during Lapham’s trial. See Lapham’s Brief at 10 n.1.

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above test, the entire record must be evaluated and all

evidence actually received must be considered. Finally, the

[trier] of fact while passing upon the credibility of the

witnesses and the weight of the evidence produced, is free

to believe all, part or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations

omitted). “Where the evidence offered to support a verdict is in contradiction

to the physical facts, in contravention to human experience and the laws of

nature, then the evidence is insufficient as a matter of law.” Commonwealth

v. Ortiz, 160 A.3d 230, 234 (Pa. Super. 2017) (citation omitted). A claim

challenging the sufficiency of the evidence is a question of law. Id. at 233.

Lapham first challenges the sufficiency of the evidence supporting his

conviction for accidents involving death or personal bodily injury while not

properly licensed. According to Lapham, there was “no evidence presented at

trial to establish [he] was criminally negligent.” Lapham’s Brief at 10. This

offense is defined as follows:

A person whose operating privilege was disqualified,

canceled, recalled, revoked or suspended and not restored

or who does not hold a valid driver’s license and applicable

endorsements for type and class of vehicle being operated

commits an offense under this section if the person was the

driver of any vehicle and caused an accident resulting in

injury or death of any person.

75 Pa.C.S.A. § 3742.1(a).3

____________________________________________

3 Effective December 24, 2018, the Pennsylvania legislature amended

subsection (a) to include two alternative bases for the offense. Subsection

(a)(1) provides similar language as quoted above, while subsection (a)(2)

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In Commonwealth v. Hurst, 889 A.2d 624, 626 (Pa. Super. 2005),

this Court agreed with Hurst that the above statute did not “contain a scienter

requirement on its face.” Nonetheless, we concluded that the criminal statute

was not an “absolute liability statute.” Id. at 28. As we explained:

[Hurst’s] violation of Section 3742.1 was a misdemeanor of

the second degree, and not a summary offense, which was

punishable by a maximum penalty of two years in prison.

See 18 Pa.C.S.A. § 1104. The nature of the offense, which

involves a causation element, and the potentially severe

penalty are sufficient indicia that the legislature did not

intend to eliminate the mens rea element and make

accidents involving death or personal injury while a driver is

not properly licensed a strict liability crime.

Hurst, 889 A.2d at 628.

Thus, in Hurst, we had to determine the required culpability for the

vehicular offense at issue under the Crimes Code, specifically 18 Pa.C.S.A. §§

302 and 305. Id. After considering the language of these sections, we

concluded that:

18 Pa.C.S.A. § 302(a) establishes the culpability

requirements for a violation of Section 3742.1 of the

[Vehicle Code], and therefore, criminal negligence as

defined in 18 Pa.C.S.A. § 302(b)(4) is the minimum level of

culpability the Commonwealth was required to establish at

trial.

____________________________________________

provides “or . . . acted with negligence that contributed to causing the accident

injury or death of a person.”

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Id. at 629. This conclusion was supported by appellate decisions which

determined the scienter requirement for similar Vehicle Code violations. See

id. at 629-30.

Section 302(b)(4) defines the concept of “criminal negligence” as

follows:

A person acts negligently with respect to a material element

of an offense when he should be aware of a substantial and

unjustifiable risk that the material element exists or will

result from his conduct. The risk must be of such a nature

and degree that the actor’s failure to perceive it, considering

the nature and intent of his conduct and the circumstances

known to him, involves a gross deviation from the standard

of care that a reasonable person would observe in the

actor’s situation.

18 Pa.C.S.A. § 302(b)(4).

In Commonwealth v. Kutzel, 64 A.3d 1114 (Pa. Super. 2013), this

Court considered how to determine whether an actor’s conduct constituted a

gross deviation from the standard of care. We reiterated:

In determining whether a person’s actions constitute

criminal negligence one must obviously consider the entire

situation; and we hold that the determination whether those

actions qualify as a “gross deviation” within the meaning of

the statute, can depend upon the nature of the standard

applicable to a given situation.

Kutzel, 64 A.3d at 1119 (citation omitted).

Here, the trial court rejected Lapham’s claim that the Commonwealth

failed to prove that his actions on the day of the accident constituted criminal

negligence. The court, as fact finder, accepted Santana’s testimony that he

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suffered injuries from the accident and Trooper Bohn’s testimony that Lapham

did not have a valid driver’s license at the time of the collision. The trial court

concluded that, “[b]ased on this evidence and the credible testimony of

Santana and Officer Bohn concerning how the accident happened, the court

denied [Lapham’s] challenges to the sufficiency of the evidence as to AIDPI.

Trial Court Opinion, 4/8/20, at 7.

Addressing Lapham’s claim to the contrary, the trial court concluded:

[Lapham’s] argument is based on his own testimony that

he rear-ended Santana’s vehicle only after swerving to avoid

a bigger accident. Essentially, he claims that he should be

found not guilty pursuant to the sudden emergency

doctrine. In this way, [Lapham] couches a weight of the

evidence argument as one challenging sufficiency.

[Lapham] seemingly contends that there was no evidence

that he was criminally negligent in the manner in which he

drove, but his claim requires that the fact finder believe his

testimony and ignore the Commonwealth’s witnesses. This

is a weight of the evidence challenge – not sufficiency.

Trial Court Opinion, 4/8/20, at 7 n.iv.

Our review of the record supports the trial court’s conclusion. In arguing

to the contrary, Lapham now asserts that “[t]he Commonwealth did not offer

testimony concerning [his] speed or sufficient details on his driving and traffic

conditions immediately preceding the accident,” and challenges Santana’s

testimony, based on his observations from his rearview mirror, as “unclear.”

Lapham’s Brief at 28. In addition, Lapham likens the situation in his case to

that in Kutzel, supra. We cannot agree.

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First, as a matter of credibility, the trial court accepted Santana’s

testimony regarding the accident, as well as Officer Bohn’s testimony

regarding statements Lapham made at the accident scene. Because these

credibility determinations supported by the record, we cannot disturb them.

Hansley, supra. As the trial court noted, Lapham actually challenges the

weight of the evidence supporting his convictions rather than the sufficiency.

Moreover, Lapham’s reliance upon Kutzel is misplaced, as the facts of

that case are easily distinguishable. In Kutzel, after observing the traffic

signal turn green, Kutzel turned right and struck a nine-year-old child that

was using a crosswalk. Kutzel, 64 A.3d at 1115. We vacated Kutzel’s AIDPI

conviction because there “was no evidence that [Kutzel’s] failure to perceive

[the child] crossing the street represented a gross deviation from the standard

of care to which a reasonable driver would adhere.” Id. at 1119. Here, the

facts, as accepted by the trial court and supported by the record, paint a

markedly different situation that lead to the collision in this case.

Finally, Lapham’s reliance upon Commonwealth v. Heck, 491 A.2d

212 (Pa. Super. 1985), is also misplaced. In that case, a jury convicted Heck

of vehicular homicide after his northbound vehicle made a left-hand turn and

collided with a motorcyclist traveling southbound. We vacated Heck’s

judgment of sentence after concluding that Heck was not criminally negligent

because the elevation of the intersection where the collision occurred may

have interfered with Heck’s ability to observe the motorcycle. Id. at 217-18.

In analogizing to Heck, Lapham argues that his “failure to apprehend a hazard

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in time was not a gross deviation from a reasonable standard of care.”

Lapham’s Brief at 30. The hazard upon which Lapham bases this claim—his

testimony that Santana’s vehicle entered the highway—was expressly rejected

by the trial court as fact finder.

Here, Lapham contends “the combined factors of rush hour traffic and

Santana’s unexpected maneuver combined to cause that accident at issue.”

Lapham’s Brief 29. As, noted above, the trial court found credible Santana’s

testimony that he never left the entrance ramp and therefore accepted

evidence that Lapham’s actions represented a gross deviation from the

standard of care. See also Commonwealth v. Best, 120 A.3d 329, 342 (Pa.

Super. 2015) (holding evidence sufficient to uphold AIDPI conviction when

there was evidence from which the jury could conclude that the defendant

caused the head-on collision, that the victims suffered personal injury, and

the defendant stipulated at trial that his license was suspend at the time of

the accident). Thus, Lapham’s first sufficiency challenge fails.

Lapham next challenges the sufficiency of his summary conviction for

driving on roadways laned for traffic. Section 3309 of the Vehicle Code

provides, in pertinent part:

Whenever any roadway has been divided into two or

more clearly marked lanes for traffic . . . [a] vehicle shall be

driven as nearly as practicable entirely within a single lane

and shall not be moved from the lane until the driver has

first ascertained that the movement can be made with

safety.

75 Pa.C.S.A. § 3309(1).

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Here, the trial court rejected Lapham’s claim that “the Commonwealth

failed to prove, beyond a reasonable doubt, that [he] either failed to drive as

practicable entirely within a single lane or moved from a lane without

ascertaining whether the movement could be made [safely].” Trial Court

Opinion, 4/8/20, at 8 (citing Lapham’s Rule 1925(b) Statement at ¶ 4). The

court explained:

[Lapham] and Officer Bohn both testified that the West

Shore Bypass is divided into two lanes. Both the

Commonwealth and [Lapham] presented photographic

evidence that the lanes are clearly marked. Finally, there is

no question that [Lapham] swerved out of his lane of travel

and into the entrance ramp lane, and given that [Lapham]

violently rear-ended Santana’s vehicle the court inferred

that [Lapham] did not first ascertain that the movement

could be made with safety.

Id. at 9.

Our review of the record supports this conclusion. Lapham asserts that

because “there were no police observations of [him] failing to drive in his lane”

and Santana’s testimony was “unclear,” there was “no testimony whatsoever

[that he] failed to maintain his lane while driving.” Lapham’s Brief at 32.

Given the totality of the circumstances surrounding the collision, the trial court

properly concluded that Lapham was guilty of this traffic offense. Once again,

Lapham’s true argument goes to the weight the trial court as fact finder

accorded the trial testimony, not the sufficiency. See Commonwealth v.

Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011) (concluding that the appellant

attacks the weight rather than the sufficiency of the evidence when his

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argument is directed entirely to the credibility of the Commonwealth’s chief

witness). Thus, this sufficiency challenge fails.

Lapham next challenges his careless driving conviction. Section 3714

of the Vehicle Code provides: “Any person who drives a vehicle in careless

disregard for the safety of persons or property is guilty of careless driving, a

summary offense.” 75 Pa.C.S.A. § 3714(a). Careless disregard is defined as

“less than willful and wanton conduct, but more than ordinary negligence or

the mere absence of care under the circumstances.” Commonwealth v.

Cathey, 645 A.2d 250, 250 (Pa. Super. 1994) (citation omitted).

Lapham asserts that the Commonwealth “cannot support a verdict for

Careless Driving merely because an accident occurred.” Lapham’s Brief at 34.

The trial court disagreed, concluding that “[p]roof of careless disregard for the

safety of persons or property in this case can be inferred from the fact that

[Lapham] was unable to stop his vehicle without first striking the car in front

of him, and instead had to swerve into the entrance ramp lane.” Trial Court

Opinion, 4/8/20, at 9. Our review of the record supports this conclusion.

Thus, Lapham’s sufficiency challenge fails.

In his final sufficiency challenge, Lapham claims that the Commonwealth

failed to present sufficient evidence to support his conviction for driving at a

safe speed. This traffic offense is defined, in pertinent part, as follows:

No person shall drive a vehicle at a speed greater than is

reasonable and prudent under the conditions and having

regard to the actual and potential hazards then existing, nor

at a speed greater than will permit the driver to bring his

vehicle to a stop within the assured clear distance ahead.

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75 Pa.C.S.A. § 3361.

Lapham asserts that the Commonwealth failed to present evidence that

he drove his vehicle at a speed greater than what was reasonable under the

circumstances since “[n]o testimony [was] offered whatsoever concerning the

speed of [his] vehicle.” Lapham’s Brief at 36. The trial court rejected this

claim:

As noted, the court believed the testimony of Officer

Bohn; namely, that [Lapham] said to the officer at the

time/scene of the collision that he swerved from his lane

into the entrance ramp lane to avoid a vehicle that was

traveling in the same lane of traffic. The court did not

believe [Lapham’s] testimony that Santana swerved into the

through lane. [Based] on Officer Bohn’s testimony, it is

clear that [Lapham] was driving at a speed greater than

permitted him to bring his vehicle to a stop within the

assured clear distance ahead. If [Lapham] had been driving

at an appropriate speed, he could have stopped within his

own lane instead of swerving.

Trial Court Opinion, 4/8/20, at 10.

Once again, our review of the record supports this conclusion. Lapham

cites us to no case authority that requires that the Commonwealth establish a

specific rate of speed in order to convict a person of this offense. “Speeding

alone does not violate the statute.” Commonwealth v. Heberling, 678 A.2d

794, 795 (Pa. Super. 1996). Rather, “[t]here must be proof of speed that is

unreasonable or imprudent under the circumstances[.] Id. Here, Officer Bohn

testified that Lapham told him his Jeep went airborne after hitting Santana’s

vehicle and came to rest atop the guardrail. See N.T., 5/20/19, at 38. From

such evidence the trial court could appropriately conclude that Lapham was

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guilty of driving too fast for the conditions presented. Thus, his final

sufficiency claim fails.

In sum, we conclude that the record supports the trial court’s conclusion

that sufficient evidence supports all of the convictions challenged by Lapham.

II.

We next address Lapham’s challenge to the weight of the evidence

supporting his convictions. When reviewing a challenge to the weight of the

evidence, our standard of review is as follows:

The essence of appellate review for a weight claim appears

to lie in ensuring that the trial court's decision has record

support. Where the record adequately supports the

trial court, the trial court has acted within the limits

of its discretion.

***

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

against the weight of the evidence is addressed to the

discretion of the trial court. A new trial should not be

granted because of a mere conflict in the testimony or

because the judge on the same facts would have arrived at

a different conclusion. Rather, the role of the trial judge is

to determine that notwithstanding all the facts, certain facts

are so clearly of greater weight that to ignore them or to

give them equal weight with all the facts is to deny justice.

***

An appellate court's standard of review when presented with

a weight of the evidence claim is distinct from the standard

of review applied by the trial court. Appellate review of a

weight claim is a review of the exercise of discretion,

not of the underlying question of whether the verdict

is against the weight of the evidence.

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Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations

omitted) (emphasis added). Absent an abuse of discretion, the trial court’s

decision will not be disturbed. See Commonwealth v. Griffin, 515 A.2d

865, 869 (Pa. 1986). An abuse of discretion “is not merely an error in

judgment. Rather, it involves bias, partiality, prejudice, ill-will, manifest

unreasonableness or a misapplication of the law.” Commonwealth v. West,

937 A.2d 516, 521 (Pa. Super. 2007) (citation omitted). By contrast, a proper

exercise of discretion “conforms to the law and is based on the facts of record.”

Id.

In denying Lapham’s weight claim, the trial court explained:

[Lapham] argued in his post-sentence motion, and avers

. . . that [t]he guilty verdicts were contrary to the weight of

the evidence where [Santana’s] testimony about the

accident was contradictory, inconsistent with prior

testimony and not credible. First, this claim ignores the

testimony of Officer Bohn and documentary evidence.

Moreover, [Lapham] does not identify how or why Santana’s

testimony was contradictory and/or inconsistent with prior

testimony, and there is no support for these claims in the

record.

Trial Court Opinion, 4/8/20, at 5 (quotation marks and citation omitted). The

court then noted that, as fact finder, it was its job to pass upon the credibility

of witnesses and that the court could consider the interest of a witness in the

outcome of the trial when making this determination. See id. at 5-6. The

court then expressly stated that “it found both Santana and Officer Bohn to

be credible and did not believe [Lapham’s] trial testimony.” Id. at 6. Thus,

the trial court stated that it properly denied Lapham’s weight challenge.

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Our review of the record supports this conclusion. Lapham’s claims to

the contrary are without merit in that in his brief he now provides specific

instances where he believes Santana’s testimony was inconsistent and refers

to his testimony, which the trial court found unworthy of belief. See Lapham’s

Brief at 38. In essence, Lapham asks this Court to reassess the evidence and

substitute our judgment for that of the trial court. This is not a proper

appellate function when considering a weight challenge. Clay, supra. Thus,

Lapham’s weight challenge fails.

III.

Lapham’s final claim challenges the discretionary aspects of his

sentence. This Court has explained that, to reach the merits of a discretionary

sentencing issue, we must conduct a four-part analysis to determine:

(1) whether the appeal is timely; (2) whether Appellant

preserved his issue; (3) whether Appellant's brief includes a

concise statement of the reasons relied upon for allowance

of appeal with respect to the discretionary aspects of

sentence [in accordance with 2119(f)]; and (4) whether the

concise statement raises a substantial question that the

sentence is appropriate under the sentencing code. . . . [I]f

the appeal satisfies each of these four requirements, we will

then proceed to decide the substantive merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)

(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).

Here, Lapham satisfied the first three requirements under Colon.

Accordingly, we must determine whether he has raised a substantial question

for our review. An appellant raises a “substantial question” when he “sets

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forth a plausible argument that the sentence violates a provision of the

[S]entencing [C]ode or is contrary to the fundamental norms of the sentencing

process.” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super.

2010) (citation omitted).

The Commonwealth contends that Lapham’s Rule 2119(f) statement is

deficient because Lapham “does not prove any fact or argument in the

Statement whatsoever.” Commonwealth’s Brief at 24. A reading of Lapham’s

two-page statement reveals that it consists of no more than boilerplate

statements of law and fails to provide any facts or arguments applying this

case law to the circumstances surrounding the sentence imposed. In this

situation, this Court has found waiver of a sentencing challenge. See e.g.,

Commonwealth v. Williams, 562 A.2d 1385, 1389 (concluding that when

an “appellant’s Rule 2119(f) statement contains no factual averments which

suggest that the sentencing scheme as a whole has been compromised, but

instead merely paraphrases appellant’s argument as to why the sentencing

court abused its discretion in imposing the allegedly excessive sentence, the

petition for permission to appeal must be denied”).

As this Court more recently has explained, however, we can look at both

the statement of questions presented and the prefatory 2119(f) statement to

determine whether a substantial question exists. See Commonwealth v.

Johnson-Daniels, 167 A.3d 17, 27 (Pa. Super. 2017). Although he provides

no facts regarding his sentence in his 2119(f) statement, in his statement of

the question presented on appeal, Lapham asserts that his sentence is

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“excessive when considering the protection of the public, the gravity of the

offense as it related to the impact on the life of [Santana] and on the

community, and [his] rehabilitative needs. Lapham’s Brief at 12. Although

Lapham should have reiterated such statements in his Rule 2119(f) statement,

we find that he has raised a substantial question. See Johnson-Daniels,

167 A.3d at 27; Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super.

2015) (concluding that an excessive sentence claim coupled with a claim that

the court failed to consider the defendant’s mitigating sentences and his

rehabilitative needs raises a substantial question).

Our standard of review when deciding an excessive sentencing claim is

as follows:

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, is not shown merely to be 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. Shull, 148 A.3d 820, 831 (Pa. Super. 2016) (citation

omitted).

At sentencing, the Commonwealth recommended that the trial court

sentence Lapham to a two-year probationary term, and defense counsel

requested the court impose a lesser term of probation for several reasons,

including the fact that Lapham had been diagnosed with post traumatic stress

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disorder. In response, the trial court stated its belief that a two-year term of

probation would benefit Lapham:

[I]t seems to me that that the supervision is probably going

to be a good thing as opposed to a punitive thing. He has a

prior record score of zero. And he was convicted of a

misdemeanor of the second degree, [for] which two years

is the maximum. But it seems to be like two years of

supervision will probably be a good thing.

N.T., 11/26/19, at 4. After Lapham’s allocution, and after he answered a few

of the trial court’s questions, the trial court again stated, “Yeah. I mean, I’m

not in any way, shape or form trying to punish you. I’m just – I just think

that supervision will be a good thing.” Id. at 6.

Our review of the record supports the trial court’s conclusions. In

arguing to the contrary, Lapham assert that the trial court “failed to give

appropriate weight to the mitigating factors[.]” Lapham’s Brief at 41.

Additionally, he claims that because no restitution was included as part of his

sentence, a long probationary term was inappropriate. Id. Finally, Lapham

asserts that his “mental health diagnoses and need for treatment and

rehabilitation show that the rehabilitation factor should have been further

considered by the [trial court] in the sentence handed down.” Id.

As noted above, the trial court did consider Lapham’s rehabilitative

needs by determining that a two-year probation term of supervision would aid

him in his treatment and diagnoses. In essence, Lapham is asking this Court

to substitute our judgment for that of the trial court. This we will not do.

Williams, supra.

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J-S38003-20

In sum, because all of Lapham’s claims are without merit, we affirm his

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2020

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