Com. v. Gearhart, D.
CourtSuperior Court of Pennsylvania
Date FiledOctober 27, 2026
Docket1315 WDA 2025
JudgeBowes
StatusUnpublished
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Full Opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAMION RAY GEARHART :
:
Appellant : No. 1315 WDA 2025
Appeal from the Judgment of Sentence Entered September 4, 2025
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0001078-2024
BEFORE: LAZARUS, P.J., BOWES, J., and LANE, J.
MEMORANDUM BY BOWES, J.: FILED: October 27, 2026
Damion Ray Gearhart appeals from the aggregate judgment of sentence
of four to ten years of imprisonment imposed following his nolo contendere
pleas to one count each of driving under the influence of alcohol or a controlled
substance (“DUI”), homicide by vehicle while DUI, and homicide by vehicle.
We affirm.
We glean the following facts from the affidavit of probable cause
attached to the criminal complaint. At approximately 4:00 a.m. on May 26,
2024, Officer Trent Zank of the South Pymatuning Police Department noticed
a black pickup truck traveling at a high rate of speed. Officer Zank initiated
pursuit but briefly lost sight of the vehicle because of the dense, patchy fog.
When he reached the vehicle, he observed that Appellant had driven off the
road and struck a utility pole. Appellant was in the truck with two passengers,
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Brenton Tymchyshyn and David Helberg, who both died as a result of injuries
sustained in the collision. Appellant informed Officer Zank that he had
consumed six beers that evening, and Officer Zank noted that Appellant
emitted a strong odor of alcohol and displayed signs of impairment, including
slurred speech and glassy and bloodshot eyes. Appellant consented to a blood
draw, the results of which revealed that his blood alcohol content was 0.215%,
which is 2.6 times higher than the legal driving limit of 0.08%.
The Commonwealth initially charged Appellant with one count of DUI
and two counts of homicide by vehicle while DUI. However, it subsequently
reduced one of the latter offenses to homicide by vehicle, and Appellant
entered a nolo plea to all three charges. The trial court ordered a pre-sentence
investigation (“PSI”), and during the ensuing sentencing hearing, the court
considered the PSI report as well as six victim impact statements that were
either recited in-person or read into the record. Appellant exercised his right
of allocution, and presented four witnesses who each delivered a statement
on his behalf. At the close of the hearing, the trial court sentenced Appellant
to an aggregate term of four to ten years of imprisonment. Specifically, the
trial court imposed the mandatory minimum sentence of three to six years of
imprisonment for homicide by vehicle while DUI and a consecutive term of
one to four years of incarceration for homicide by vehicle.1 The DUI conviction
____________________________________________
1 As noted in the body of this memorandum, the sentence for homicide by
vehicle narrowly exceeds the standard range of the sentencing guidelines.
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merged with the DUI-related homicide by vehicle for the purposes of
sentencing.
Appellant filed a timely post-sentence motion challenging the
discretionary aspects of his sentence, which the trial court denied. Thereafter,
Appellant filed a timely notice of appeal and complied with Pa.R.A.P. 1925(b).
The trial court issued a Rule 1925(a) opinion.
Appellant raises two issues on appeal:
I. Whether the sentencing court abused its discretion by
imposing consecutive sentences resulting in an aggregate term of
four to ten years of state incarceration on a first offender with a
prior record score of zero, where the cumulative sentence is
clearly unreasonable under the totality of the circumstances and
fails to account for the substantial mitigating evidence of record?
II. Whether the sentencing court relied on impermissible
factors—including prior traffic citations, a juvenile consent decree,
an unrelated summary conviction, and factual assertions
contradicted by the evaluative record—in determining to impose a
consecutive sentence and an above-mandatory-minimum
aggregate, in violation of the Sentencing Code framework and
established precedent?
Appellant’s brief at 9.
As Appellant challenges the discretionary aspects of his sentence, the
following legal principles govern our initial consideration of his claim:
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(1) whether appellant has filed a timely notice of appeal,; (2)
whether the issue was properly preserved at sentencing or in a
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motion to reconsider and modify sentence; (3) whether
appellant's brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Lucky, 229 A.3d 657, 663–64 (Pa.Super. 2020) (cleaned
up). To determine whether an appellant has raised a substantial question, our
review is generally confined to the appellant's Rule 2119(f) statement,
although we may also consider the statement of questions presented. See
Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa.Super. 2013) (“[A] court
may look to both Pa.R.A.P. 2119(f) statement and statement of questions
presented to determine if substantial questions are raised[.]” (citation
omitted)).
Appellant satisfied the first three requirements by timely filing a notice
of appeal, preserving his issues in a post-sentence motion, and including a
Pa.R.A.P. 2119(f) statement in his brief. See Appellant’s brief at 14–15.
Likewise, the issues he presents raise a substantial question. See
Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa.Super. 2011) (claim
that court failed to consider relevant mitigating factors in conjunction with a
manifestly excessive aggregate sentence raises a substantial question).
Commonwealth v. Berry, 323 A.3d 641 (Pa.Super. 2024) (substantial
question raised by claim that court relied on impermissible factors, such as
prior arrest without conviction).
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As both aspects of Appellant’s arguments challenge the trial court’s
review of the sentencing factors, we address his claims collectively in light of
the following:
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.
Lucky, 229 A.3d at 663 (cleaned up). Additionally, where, as here, the trial
court had the benefit of a PSI report, “it is presumed that the court [wa]s
aware of all appropriate sentencing factors and considerations, and that where
the court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Torres, 303 A.3d 1058, 1065 (Pa.Super. 2023) (cleaned
up).
While broad, “the trial court’s discretion is not unfettered.”
Coulverson, 34 A.3d at 144. The sentence imposed “should call for
confinement that is consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. §
9721(b). As we have stated, “[w]hen imposing a sentence, a court is required
to consider the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should refer to the
defendant’s prior criminal record, age, personal characteristics and potential
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for rehabilitation.” Commonwealth v. Taylor, 277 A.3d 577, 593 (Pa.Super.
2022) (cleaned up).
Indeed, the Sentencing Code provides that we must consider the
following in reviewing the trial court’s application of the foregoing principles:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d). Stated simply, “an appellate court is to exercise its
judgment in reviewing a sentence outside the sentencing guidelines to assess
whether the sentencing court imposed a sentence that is ‘unreasonable.’ See
Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007). While
“‘unreasonable’ is not defined in the statute[,] [g]enerally speaking,
‘unreasonable’ commonly connotes a decision that is ‘irrational’ or ‘not guided
by sound judgment.’” Id.
As previously noted, Appellant’s aggregate sentence of four to ten years
of imprisonment comprises a mandatory minimum sentence of three to six
years for homicide by vehicle while DUI and a consecutive term of “not less
than one year nor more than four years” for homicide by vehicle. Trial Court
Opinion, 11/13/25, at 3 (pagination supplied) (cleaned up). As to the
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sentence’s discretionary component, the trial court explained its rationale as
follows:
I will point out again, I have reviewed all the letters and
correspondence. I listened closely to what everybody said,
reviewed the sentencing memorandums and [PSI] reports. . . . I
think one of the folks that spoke said, “Please take th[is]
seriously.” I can assure you I take it very seriously.
Most days I am blessed to love my job. Today is one of
those days [that] it’s very, very difficult. No matter what I do,
half of you are going to be upset, and the other half of you will
think I will be too harsh. And it’s very difficult because both sides
make good points today, but there [are] no easy answers.
Nothing can heal the pain of those folks that lost their loved ones.
[T]hese are some of the best impact letters I have ever read,
breaks your heart, especially pictures of kids that are going to
grow up without their dad.
I will actually quote one of [the letters] because I think she
says it even more articulately than I could. . . .
“I do not believe that [Appellant] had some
preconceived cynical plan on that day while driving
intoxicated. I do not believe he had malice in his heart. He
did, in fact, disregard the life of my nephew, the lives of his
friends, and his own life, by driving intoxicated and operating
his vehicle in a careless, reckless manner as a result of his
intoxication, and people died.”
I think that succinctly sums it up. I don’t think he
intentionally did anything, but he had an accident and people died,
and there [are] consequences for that.
N.T. Sentencing, 9/4/25, at 57-59.
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Thereafter, the court identified five factors to justify sentencing
Appellant in the aggravated range for homicide by vehicle.2 In fashioning this
sentence, the court explained as follows:
[Appellant] has no prior record . . . . But he does have prior traffic
tickets, and based on the nature of the current charges, I believe
some of those create aggravating circumstances.
In 2016 while he was a minor he had a consent decree for
a traffic accident. In 2022 he pled guilty to careless driving. He
has not followed recommended mental-health counseling,
although that has been mitigated[.] I do not think he was really
being honest about the amount of alcohol he had th[e] night[ of
the accident.]
....
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2 The trial court also enumerated these factors in the order denying
Appellant’s post-sentence motion. It stated,
(1) [Appellant] had prior traffic tickets[,] and based on the
nature of his current charges, I court believe those create
aggravating circumstances.
(2) In 2016, while a minor, [Appellant] had a consent decree for
a traffic accident.
(3) In 2022, [Appellant] pled guilty to careless driving.
(4) [Appellant] did not follow the recommendation for mental
health counseling.
(5) [Appellant] was not honest about the amount of alcohol he
consumed the night of the accident.
Trial Court Order, 9/16/25, at 1 (pagination supplied). While the trial court
has also indicated, in both the order denying post-sentence motions and the
Rule 1925(a) Opinion, that it imposed a standard-range sentence, the
Pennsylvania Guideline Sentence form included in the certified record confirms
that this sentence represents an upward deviation from the guidelines and
notes that the reasons for the deviation appear in the record.
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And just one last thing: I mean, you saw it this morning, I
changed my sentence based on the information I hear[d] today.
So I will reiterate, probably, I think, [for] the fourth time, I have
taken everybody’s words today, words in the letters [and]
pictures, into consideration. You know, I will give the sentence
that I deem is appropriate. It’s unfortunate that he has put
himself in this situation, because he does appear to be a hard-
working young man that just made an unfortunate decision one
night.
N.T. Sentencing, 9/4/25, at 59-60.
Upon review of the certified record, it is clear that the trial court
considered Appellant’s PSI report, the victim statements, and the sentencing
guidelines in explaining its reasoning for the sentence. See id. at 57-59.
Based upon Appellant’s prior record score of zero and the offense gravity score
of twelve, the standard range minimum sentence for homicide by vehicle is
nine months to less than twelve months incarceration with restrictive
conditions, i.e. “9-<12 (RC)”. 204 Pa.Code 303a.14. Thus, Appellant’s one-
year minimum sentence narrowly exceeds the standard range of the
sentencing guidelines.
Appellant’s first argument challenges the aggregate sentence of four to
ten years of imprisonment as clearly unreasonable. This contention has two
facets: (1) the cumulative effects of the consecutive sentences is manifestly
unreasonable and (2) the trial court failed to consider certain mitigating
factors in imposing consecutive terms of imprisonment. See Appellant’s brief
at 16-18. We address these components seriatim.
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Invoking our holding in Commonwealth v. Coulverson, 34 A.3d 135
(Pa.Super 2011), Appellant contends that the court erred in failing to consider
“the total effect” of the aggregate sentence. Id. at 17.3 For the following
reasons, we disagree.
In Coulverson, this Court found that a ninety-year aggregate
“maximum sentence [was] clearly unreasonable” because it amounted to the
imposition of a life sentence on the nineteen-year-old appellant for a litany of
violent offenses and property crimes, based solely upon their impact on the
victims. As it relates to Appellant’s argument, we reasoned, “the record
____________________________________________
3 Appellant also cites Commonwealth v. Raven, 97 A.3d 1244 (Pa.Super
2014) and Commonwealth v. Dodge, 77 A.3d 1263 (Pa.Super 2013)
(Dodge IV) in support of his argument, but his reliance upon those cases is
misplaced. See Appellant’s brief at 16-17. Appellant states that the Raven
Cout “vacated a sentence where the trial court stacked guideline-range
sentences without consideration of the total effect.” Id. In reality, however,
the Raven Court upheld the aggregate term of seventy-eight to three hundred
months’ (6.5 to 25 years) of incarceration imposed on several offenses related
to a DUI-related motor vehicle accident that resulted in the death of two
motorcyclists. In finding that the trial court did not commit an abuse of
discretion in imposing the aggregate term of imprisonment, we highlighted
that “the record reflects that the [sentencing] court carefully considered all of
the evidence presented at the sentencing hearing.” Id. at 1255. Likewise, in
Dodge IV, we affirmed the aggregate term of forty years, seven months to
eighty-one years and two months incarceration for a litany of property crimes.
“Specifically, the court imposed consecutive sentences of one to two years on
the thirty-seven felony counts of receiving stolen property, two to four years
and one to two years for the two burglary convictions, six to twelve months
for the first-degree misdemeanor receiving stolen property, and one to two
months for the unauthorized use of a motor vehicle.” Id. at 1268. Hence,
despite Appellant’s insistence that the aggregate effect of the two sentences
made his punishment manifestly unreasonable in this case, our conclusions in
both Raven and Dodge refute that contention.
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reveals scant consideration of anything other than victim impact and the
court's impulse for retribution on the victims' behalf.” Id. at 148.
Here, unlike in Coulverson, the trial court imposed an aggregate term
of four to ten years of imprisonment after first considering all the relevant
factors before it. Although the court discussed the severity of the offense and
impact of the victim’s, it did not solely rely on those factors when crafting
Appellant's sentence. See N.T. Sentencing, 9/4/25, at 59-60. Insofar as this
Court will not re-weigh the trial court's consideration of the relevant
sentencing factors, we have no basis to conclude that Appellant's sentence
was unreasonable.
The second aspect of this issue relates to Appellant’s assertion that the
sentence is unreasonable because the court did not consider the mitigating
factors concerning: 1) his remorse, lack of a criminal record, and decision to
plead guilty and avoid a trial; 2) the several letters attesting to his character;
3) the recommendations by the presentence court reporting network (“CRN”)
that he attend Alcohol Highways Safety School and a comprehensive drug and
alcohol evaluation, and 4) the fact that “the victims were [his] close friends
who voluntarily entered the vehicle and were themselves intoxicated.”
Appellant’s brief at 17-18.
We reiterate, “[t]he general rule in Pennsylvania is that in imposing a
sentence, the court has discretion whether to make it concurrent with or
consecutive to other sentences then being imposed or other sentences
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previously imposed.” Commonwealth v. Morrobel, 311 A.3d 1153, 1157
(Pa.Super. 2024) (cleaned up). Furthermore, notwithstanding Appellant’s
protestations that the trial court failed to consider certain mitigating factors,
insofar as the trial court indicated that it reviewed the PSI report prepared in
advance of the sentencing hearing, we reject this contention. See N.T.
Sentencing, 9/4/25, at 57-59. It is beyond cavil, that “[w]here [PSI] reports
exist, we shall continue to presume that the sentencing judge was aware of
relevant information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Watson, 228 A.3d 928, 936 (Pa.Super. 2020). Appellant’s arguments to the
contrary are unpersuasive. 4
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4 To the extent that Appellant contends that the trial court also abused its
discretion in considering the severity of the DUI-related vehicular homicide
and the impact of that offense on the families of the victims in imposing
consecutive sentences, that claim is waived. Appellant suggests that because
the legislature already addressed these concerns in requiring a mandatory
sentence for DUI-related homicide by vehicle, it is unreasonable to impose the
mandatory sentence consecutive to another sentence. See Appellant’s brief
at 17-18. However, Appellant neglects to support this component of his
argument with citation to any legal authority beyond a passing reference to §
9721(b). See id. at 18 (“Imposing a consecutive sentence based on factors
already embedded in the charges, without individualized analysis under §
9721(b), is a failure of sentencing discretion.”). Accordingly, the claim is
waived. See Commonwealth v. Hernandez, ___ A.3d ___, 2026 PA Super
161 (Pa.Super. 2026) (finding argument waived because appellant failed to
support it with citation to relevant authority); Commonwealth v. Midgley,
289 A.3d 1111, 1118 (Pa.Super. 2023) (“Where the appellant fails to develop
an issue or cite legal authority, we will find waiver of that issue.).
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Next, we address Appellant’s assertion that the trial court considered a
series of impermissible sentencing factors to impose an aggravated range
sentence for homicide by vehicle. Appellant’s brief at 19–21. Invoking our
Supreme Court’s holding in Commonwealth v. Berry, 323 A.3d 641 (Pa.
2024), i.e., that a sentencing court may not rely upon a defendant’s bare
record of prior arrests without subsequent convictions, Appellant contends
that the trial court erred in considering his past traffic citations, summary
traffic offenses, and a traffic-related juvenile consent decree in imposing the
judgment of sentence. Id. at 19-20.5 The crux of this contention is that while
the trial court’s review of a PSI report creates a presumption that it considered
all relevant information, that presumption is overcome where the trial court’s
stated reasons for the sentence reflect improper considerations.
This Court subsequently explained the relevant premise as follows:
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5 Appellant also points to the court’s reference to his failure to follow the
recommendations for mental health counselling and to his dishonesty about
the amount of alcohol he consumed on the night of the incident. See
Appellant’s brief at 20. However, these assertions are waived because
Appellant, again, neglects to support either contention with citations to
relevant legal authority. See Hernandez, supra (finding waiver where
argument was not supported with citation to relevant authority). Even if we
addressed the merits of these claims, Appellant is entitled to no relief. The
court-ordered behavioral health evaluation report recommended that
Appellant engage additional mental health services following the evaluation.
There is no suggestion in the record that Appellant followed through with that
recommendation. Likewise, mindful that Appellant’s BAC was 2.6 times higher
than the legal driving limit, the record also supports the sentencing court’s
consideration of the fact that Appellant was dishonest about the amount of
alcohol consumed prior to the fatal crash.
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Berry was convicted of several crimes related to the sexual
abuse of two young family members. Although he had no prior
convictions or juvenile adjudications, and thus a prior record
score of zero, the trial court imposed a sentence that departed
significantly upward from the standard guideline sentencing
range. In support, the trial court cited Berry's arrest record,
which the court characterized as other previous contacts with
the criminal justice system, as a factor.
Following its grant of discretionary review, the Supreme
Court concluded “the sentencing court committed an error of
law when it relied upon prior arrests as a sentencing factor.”
The Court stated that “if a sentencing court chooses to depart
from the guidelines, it must provide its reasons for doing so”
and that “the sentencing court indicated that a reason for the
sentence—an upward departure from the guideline range—was
Berry's arrest record.” The Court explained, however, that
“evidence of a defendant's arrest record is inadmissible and
irrelevant in nearly every criminal law context,” including
sentencing, as “a sizeable percentage of arrests do not lead to
convictions.” The Court also pointed out that the Sentencing
Code does not require a court to consider a defendant's prior
arrests in determining a sentence. The Supreme Court therefore
held that a defendant's arrest history, without resultant
convictions, is an impermissible factor for courts to consider at
sentencing, finding it “incompatible with settled law establishing
that arrests, without convictions, simply have no value as
probative matter.”
Commonwealth v. Davis, 341 A.3d 808, 811–12 (Pa.Super. 2025) (cleaned
up).
This case does not implicate the concerns that the High Court confronted
in Berry, where the defendant was being sentenced for a first conviction and
the sentencing court specifically stated that it considered his previous arrests,
which did not result in convictions, as a reason to deviate upwards from the
standard guidelines. Unlike in Berry, the record in the case at bar bears out
that the court did not consider any arrests that did not lead to convictions.
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Rather it considered Appellant’s traffic citations and summary convictions for
careless driving. There simply is no support for Appellant’s contention that
these considerations were improper.
Moreover, to the extent that it was impermissible for the trial court to
consider the juvenile consent decree that was entered against Appellant for a
traffic accident he caused as a minor in 2016, no relief is due. At bottom,
Appellant argues that a consent decree differs from an adjudication of
delinquency insofar as it is not tantamount to a determination of guilt. See
Appellant’s brief at 20. However, assuming that it was impermissible for the
court to consider the juvenile consent decree, it is beyond cavil that the
consideration of a single impermissible sentencing factor will not constitute
reversible error where legitimate reasons exist for imposing an aggravated
sentence.6 Commonwealth v. Salter, 290 A.3d 741 (Pa. 2023) (“[A]s long
as independently valid reasons exist for imposing an aggravated sentence, it
must be affirmed.”).
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6 We observe that when the impermissible factor punishes the exercise of a
constitutional right, such the right to a trial, relief is warranted upon a showing
that the sentencing court considered it. See Commonwealth v. Campbell,
347 A.3d 707, 717-18 (where impermissible factor punishes exercise of
constitutional right relief may be granted on that basis alone)(Pa.Super.
2025)); Commonwealth v. Bethea, 379 A.2d 102 at 104 (Pa. 1977) (“An
accused cannot be punished by a more severe sentence because he
unsuccessfully exercised his constitutional right to stand trial rather than plead
guilty.”) (citation omitted). Appellant does not assert that the improper
consideration of his consent decree is tied to the exercise of a constitutionally
protected right.
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In sum, notwithstanding Appellant’s attempt to diminish his conduct
simply as a first-time DUI, the record bears out his inebriation on the night of
the fatal collision and his criminal responsibility for the death of two people.
The trial court imposed the lowest possible aggravated-range sentence of one
to four years imprisonment for that specific conduct in light of the several
legitimate factors that it outlined on the record during the sentencing hearing.
As the certified record reflects the sentencing court’s measured consideration
of all the evidence presented at the sentencing hearing, we can discern no
basis to disturb the court’s sentencing discretion. Phrased differently,
Appellant has not persuaded us that, in fashioning his sentence, 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.” Lucky, 229 A.3d at 663.
Judgment of sentence affirmed.
DATE: 10/27/2026
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