Full Opinion

J-S16018-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAMION RAY GEARHART : : Appellant :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, J-S16018-26 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. -2- J-S16018-26 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 -3- J-S16018-26 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). -4- J-S16018-26 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 -5- J-S16018-26 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 -6- J-S16018-26 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. -7- J-S16018-26 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.] .... ____________________________________________ 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. -8- J-S16018-26 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. -9- J-S16018-26 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. - 10 - J-S16018-26 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 - 11 - J-S16018-26 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 ____________________________________________ 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.). - 12 - J-S16018-26 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: ____________________________________________ 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. - 13 - J-S16018-26 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. - 14 - J-S16018-26 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.”). ____________________________________________ 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. - 15 - J-S16018-26 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 - 16 -