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March 10, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Simmons, D.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 470 WDA 2025
• Precedential Status: Non-Precedential

• Judges: Stevens

• Opinion

• Authorities (14)

• Cited By (0)

• Summaries (0)

• Similar Cases (616)

• PDF

Combined Opinion

                        by [Correale F. Stevens](https://www.courtlistener.com/person/8248/correale-f-stevens/)

J-S01044-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAWANN MARTRIC SIMMONS :
:
Appellant : No. 470 WDA 2025

Appeal from the Judgment of Sentence Entered January 2, 2025
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002833-2023

BEFORE: BOWES, J., PANELLA, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: March 10, 2026

Appellant, Dawann Martric Simmons, appeals from the judgment of

sentence entered in the Court of Common Pleas of Erie County on January 2,

1. After a careful review, we affirm.

A summary of the relevant facts and procedural history are as follows:

On August 20, 2023, near the intersection of West Main Road and Brickyard

Road in North East, Pennsylvania, emergency personnel responded to a two-

vehicle crash. Summary of Case for Defendant’s Plea, Com. Ex. 1, 11/7/24, at

1. Emergency personnel included the Fuller Hose Company of the North East

Volunteer Fire Department and Pennsylvania State Troopers, relevantly

including Fire Police Officer Shawn Giles. Id. at 2. Officer Giles was responsible

---

• Former Justice specially assigned to the Superior Court. J-S01044-26

for traffic control in the eastbound lane while firefighters and state troopers

performed their investigation of the crash. Id. Officer Giles was wearing

fluorescent clothing and holding fluorescent flags while conducting these

official duties. Id.

At this time, Appellant was traveling in a silver Lexus at a high rate of

speed in the left eastbound lane on State Route 20. Notably, Appellant, the

driver and sole occupant of the Lexus, was driving with his license suspended

by PennDOT. Id. at 3. Maintaining a high rate of speed, Appellant traveled into

the right lane, then abruptly swerved back into the left lane to avoid colliding

with a vehicle stopped by Officer Giles. Id. at 2. During this maneuver,

Appellant’s Lexus struck Officer Giles, causing his death as a result of blunt

force trauma. Id. at 3.

Through forensic calculation and investigation, Appellant’s vehicle was

determined to have been traveling approximately 78 miles per hour (mph)

immediately prior to the crash and approximately 58 mph when his vehicle

impacted the victim. The posted speed limit was 55 mph, and the required

speed limit in an emergency response area is 20 mph less than the posted

speed limit, thus resulting in a reduced speed limit of 35 mph. Id.

Appellant was charged on December 14, 2023 in a fifteen-count criminal

information with Homicide by Vehicle and related offenses. After Appellant was

appointed various attorneys who withdrew from representation, and filed

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J-S01044-26

numerous pro se correspondences, he proceeded with counsel to a guilty plea

hearing on November 7, 2024.

At Mr. Simmons’ plea, a colloquy was orally entered into the
record which reflected a written factual summary of the case,
which had been agreed to and signed by Mr. Simmons, his Defense
Counsel, the Attorney for the Commonwealth, and the court and
filed in advance of the plea (see “Summary of Case for
Defendant’s Plea” filed as Docket Entry of November 7, 2024).

Mr. Simmons was advised of the possible maximum
sentences for the charges to which he was pleading No Contest or
Guilty, and was advised that his trial was scheduled for the
following Tuesday. A written plea colloquy form was read to Mr.
Simmons and he also signed this form at the time of the plea (see
“Defendant’s Statement of Understanding of Rights Prior to
Guilty/No Contest Plea” filed as Docket Entry of November 7,
2024).

Tr. Ct. Op. 3-4 (unpaginated).

Appellant pleaded no contest to count one and pleaded guilty to the

remaining counts listed below:

Count 1, Homicide by Vehicle, 75 Pa.C.S. 3732(A), a Felony of the
Third Degree;
Count 2, Accidents Involving Death or Personal Injury While Not
Properly Licensed, 75 Pa.C.S. 3742.1, a Felony of the Third
Degree;
Count 3, Driving While Operating Privilege is Suspended or
Revoked, 75 Pa.C.S. 1543(a), a Summary Offense;
Count 5, Reckless Driving, 75 Pa.C.S. 3736(A), a Summary
Offense;
Count 8, Recklessly Endangering Another Person, 18 Pa.C.S.
2705, a Misdemeanor of the Second Degree;
Count 9, Recklessly Endangering Another Person, 18 Pa.C.S.
2705, a Misdemeanor of the Second Degree;
Count 10, Recklessly Endangering Another Person, 18 Pa.C.S.
2705, a Misdemeanor of the Second Degree;
Count 14, Duty of Driver in an Emergency Response Area, 75
Pa.C.S. 3327(A)(2), a Summary Offense; and,

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J-S01044-26

Count 15, Driving Vehicle at Safe Speed, 75 Pa.C.S. 3361, a
Summary Offense.

Tr. Ct. Op. 1-2 (unpaginated); see N.T., 11/7/24, at 7. The remaining counts

were nolle prossed with the consent of the district attorney and the court.

Appellant was sentenced on January 2, 2025, to an aggregate of 109 to

218 months’ incarceration. See N.T., 11/7/24. Appellant’s counsel withdrew

and he was appointed new counsel. On January 10, 2025, Appellant filed

through his counsel a motion to withdraw plea, vacate sentence, and

reschedule case for trial. The court denied his motion by order entered January

27, 2025. Following the filing of a petition for post-conviction collateral relief,

Appellant was granted leave to file an appeal nunc pro tunc from the order of

January 27, 2025, which denied his post-sentence motion.

On April 17, 2025, Appellant timely filed a notice of appeal and

thereafter filed a concise statement pursuant to Pa.R.A.P. 1925(b). This appeal

follows.

Appellant raises the following issue for our review:

A. Whether the lower Court committed legal error and abused its
discretion in failing to grant the Defendant’s Motion for leave to
withdraw his guilty plea?

B. Whether the lower Court committed legal error and abused its
discretion in failing to grant the Defendant’s motion seeking
reconsideration and/or modification of sentence predicated on the
lower Court failing to elucidate on the record as mandated the
basis for imposing sentence in the aggravated range as to count
1 (Homicide By Motor Vehicle) and count 2 (Accidents Involving
Death or Injury While Not Licensed)?

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J-S01044-26

C. Whether the lower Court committed legal error and abused its
discretion in failing to reconsider or modify the sentencing
structure as to counts 1 and 2 in that although said counts do not
merge as a matter of law, both offenses are based on essentially
the same conduct, the same state of mind and the same
consequences?

D. The lower Court committed legal error and abused its discretion
in failing to reconsider or modify the sentence imposed as to the
reckless endangerment convictions at counts 8, 9 and 10, where
the Court imposed sentences at the top of the standard ranges
and further imposed the sentences consecutively to each other
thereby amplifying the sentencing exposure by some three years
[of] incarceration?

E. Whether the lower Court committed legal error and abused its
discretion in failing to afford reconsideration or modification of the
sentence as per the post-sentence motion based upon the
averment that the extant sentence is manifestly excessive given
that the Defendant’s offenses were reckless as opposed to
intentional and thereby the Court had ample basis to modify the
sentencing structure to some form of concurrent sentences as to
counts 1 and 2 and the series of reckless endangerment counts 8,
9 and 10?

Appellant’s Br. at 3.

Appellant’s first issue challenges the trial court’s denial of his motion to

withdraw his guilty plea. The principles governing post-sentence motions to

withdraw guilty pleas are as follows:

It is well-settled that the decision whether to permit a defendant to

withdraw a guilty plea is within the sound discretion of the trial court.

Commonwealth v. Unangst, 71 A.3d 1017, 1019 (Pa. Super. 2013). When

a defendant seeks to withdraw a plea after sentencing, he “must demonstrate

prejudice on the order of manifest injustice.” Commonwealth v. Yeomans,

24 A.3d 1044, 1046 (Pa. Super. 2011). “A defendant may withdraw his guilty

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J-S01044-26

plea after sentencing only where necessary to correct manifest injustice. Thus,

post-sentence motions for withdrawal are subject to higher scrutiny since the

courts strive to discourage the entry of guilty pleas as sentence-testing

devices.” Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017)

(internal citations omitted).

“Manifest injustice occurs when the plea is not tendered knowingly,

intelligently, voluntarily, and understandingly.” Commonwealth v. Kpou, 153

A.3d 1020, 1023 (Pa. Super. 2016) (citation omitted). In determining whether

a plea is valid, the court must examine the totality of circumstances

surrounding the plea. Id. “Pennsylvania law presumes a defendant who

entered a guilty plea was aware of what he was doing, and the defendant

bears the burden of proving otherwise. Id.

To ensure a plea is voluntary, knowing, and intelligent, Rule 590 of the

Pennsylvania Rules of Criminal Procedure requires that a trial court conduct

an inquiry of the defendant before accepting a guilty plea. It first requires that

a guilty plea be offered in open court. The rule then provides a procedure to

determine whether the plea is voluntarily, knowingly, and intelligently entered.

As the Comment to Rule 590 provides, the trial court should ask the following

questions:

(1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to
trial by jury?

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J-S01044-26

(4) Does the defendant understand that he or she is presumed
innocent until found guilty?
(5) Is the defendant aware of the permissible range or sentences
and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge accepts
such agreement?

Pa.R.Crim.P. 590, cmt.

The colloquy must show, based on the totality of the circumstances, that

the defendant understood what the plea connoted and its consequences.

Yeomans, 24 A.3d at 1047 (Pa. Super. 2011).

Here, Appellant argues that manifest injustice occurred because there

is “no evidence whatsoever demonstrating” that he had “any awareness of his

maximum sentence exposure and the likely imposition of an aggregate

sentence[.]” Appellant’s Br. at 9. Appellant argues that his counsel focused

her discussions with him on the standard range, espousing a false expectation

of his sentence. Id. at 10. Appellant states, “[t]he fact that a maximum

sentence [] in excess of 25 years was quietly referenced in the plea record is

merely an amorphous number without import when weighed against what

counsel was actively and steadfastly seeking to impart[.]” Id.

Our evaluation of the record reveals that Appellant understood what his

plea connoted and its consequences. Yeomans, supra. The written guilty

plea colloquy displaying Appellant’s signature and his counsel’s signature

indicate the maximum prison sentence of twenty-five years and six months.

Com. Ex. 2, ¶ 4. The record and the plea hearing transcript shows that

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J-S01044-26

Appellant was advised on the record of, inter alia, each of his rights required

under Rule 590: Appellant was advised of the nature of his charges. Com. Ex.

2, ¶ 1; Pa.R.Crim.P. 590, cmt. ¶ 1. The written factual basis for the plea was

admitted as part of the record and signed by Appellant, and the legal and

factual basis for the plea was read orally on the record. Summary of Case for

Defendant’s Plea, Com. Ex. 1, 11/7/24, at 3, N.T., 11/7/24, at 12-14;

Pa.R.Crim.P. 590, cmt. ¶ 2. Appellant was told of his right to a jury trial, and

in fact has a trial scheduled for the week following the guilty plea hearing

should he have elected to go to trial. N.T., 11/7/24, at 3, Tr. Ct. Order, 9/10/24;

Pa.R.Crim.P. 590, cmt. ¶ 3. Appellant was advised that he is presumed

innocent until found guilty beyond a reasonable doubt. N.T., 11/7/24, at 3;

Pa.R.Crim.P. 590, cmt. ¶ 4. The court orally advised Appellant of the maximum

sentences he was facing. N.T., 11/7/24, at 8-9; Pa.R.Crim.P. 590, cmt. ¶ 5.

Finally, Appellant was told:

The Judge is not bound by the terms of the plea bargain unless
the Judge chooses to accept it. . . . If the Commonwealth agrees
to make a sentencing recommendation on your behalf, the Judge
will not be bound by the recommendation, and you will understand
that they will not be permitted to withdraw your guilty plea if this
should occur.

N.T., 11/7/24, at 4-5; Pa.R.Crim.P. 590, cmt. ¶ 6.

Appellant indicated that he followed along with the statement of

understanding of rights prior to his guilty plea. N.T., 11/7/24, at 7. Appellant

stated that he made his decision to plead guilty “voluntarily without any

pressure” and with full understanding of “all [his] rights.” Id. He stated that

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J-S01044-26

he understood the crimes with which he was charged, that he was entitled to

a trial by jury, and that he was presumed innocent. Id. at 7-8. Most

importantly for this appeal, the court read Appellant the maximum sentence

for each crime and stated clearly that in the aggregate, he was facing a period

of incarceration of up to twenty-five years and six months. Id. at 9. Appellant

stated that he had no questions regarding the maximum sentences and that

he understood that the judge was not bound by any particular sentence. Id.

at 10. Appellant agreed to the facts supporting the plea as stated. Id. at 15.

Appellant’s statement that there is no evidence whatsoever that he was

aware of the maximum sentence is belied by the record. His statement that

he was unaware of the likelihood of the imposition of the maximum sentence

may be true, but it is of no matter. Defendants are not required to be advised

of the likelihood that any particular sentence will be imposed. Based on the

totality of the circumstances, there is more than ample evidence that

Appellant entered his plea knowingly, voluntarily, and intelligently. The trial

court’s colloquy was sufficient and followed the procedure required by Rule

590, and Appellant indicated that he understood each of his rights.

Accordingly, the trial court did not err in denying his motion to withdraw his

guilty plea and no manifest injustice has occurred.

Appellant’s remaining four issues challenge the discretionary aspects of

his sentence. As we have observed, “[a]n appellant is not entitled to the

review of challenges to the discretionary aspects of a sentence as of right.”

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J-S01044-26

Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016) (citation

omitted). Instead, to invoke our jurisdiction involving a challenge to the

discretionary aspects of a sentence, an appellant must satisfy the following

four-part test:

(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).

Id.

Here, Appellant filed a timely appeal. He presented a Pa.R.A.P. 2119(f)

statement in his brief. See Appellant’s Br. at 7-8. Appellant preserved issues

C, D, and E in his post-sentence motion. Appellant, however, failed to raise

appellate issue B in his post-sentence motion; on appeal he complains that

the court failed to state on the record the basis for imposing a sentence in the

aggravated range for counts one and two, but in his post-sentence motion, he

admitted that the court stated its basis at the time of sentencing but argues

that the basis is improper and asks the court to reconsider its decision to

impose an aggravated range sentence for counts one and two. Appellant’s

motion states:

The defendant requests the court to reconsider its decision to
impose an aggravated range sentence on Count 1 (Homicide By
Vehicle) and Count 2 (Accidents Involving Death or Injury While
Not Licensed). . . . At the time of sentencing the court made
reference to the speed that the defendant was driving at the time
of the accident, the fact that the defendant’s license was

• 10 - J-S01044-26

suspended, and the that his conduct caused the death of Mr. Giles.
Each of these factors are already addressed and/or encompassed
in the elements of Count 1 and/or Count 2.

Post-Sentence Motion, 1/10/25, at ¶¶ 13, 15.

An appellant waives a challenge to the discretionary aspects of sentence

not raised in a post-sentence motion; he may not raise it for the first time on

appeal. See Commonwealth v. Bradley, 237 A.3d 1131, 1138-39 (Pa.

Super. 2020) (finding claim waived where appellant did not raise it in a post-

sentence motion). Accordingly, we find that Appellant is not entitled to review

of issue B because he has not invoked our jurisdiction as to that issue by

failing to preserve it in his post-sentence motion. We therefore will proceed to

determine if Appellant raised a substantial question as to issues C, D, and E.

“A substantial question exists where an appellant sets forth a plausible

argument that the sentence violates a particular provision of the Sentencing

Code or is contrary to the fundamental norms underlying the sentencing

process.” Commonwealth v. Brown, 249 A.3d 1206, 1211 (Pa. Super.

2021). “The determination of whether a particular issue raises a substantial

question is to be evaluated on a case-by-case basis.” Commonwealth v.

Crawford, 257 A.3d 75, 78 (Pa. Super. 2021) (citation omitted). An appellate

court will not lightly disturb the trial court’s sentencing judgment as the judge

is in the best position to “review the defendant’s character, defiance or

indifference, and the overall nature of the crime.” Commonwealth v. Conte,

• 11 - J-S01044-26

198 A.3d 1169, 1177 (Pa. Super. 2018) (internal citation and quotations

omitted).

Appellant’s issue C complains that he was sentenced consecutively for

counts one and two when both offenses, based on essentially the same

conduct and same state of mind, are “functionally equivalent.” Appellant’s Br.

at 12. This challenge does not raise a substantial question. Sentencing courts

are afforded discretion to impose concurrent or consecutive sentences. See

Commonwealth v. Aulisio, 253 A.3d 338, 343 (Pa. Super. 2021). It is well-

settled that a bare challenge that the trial court erred in imposing consecutive

sentences does not raise a substantial question. Commonwealth v. Moury,

992 A.2d 162, 171-72 (Pa. Super. 2010). Although “[a] claim that crimes

should have merged for sentencing purposes raises a challenge to the legality

of the sentence[,]” Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.

Super. 2012), Appellant does not make such a claim. Indeed, Appellant

concedes that the sentences for “said counts do not merge as a matter of law,”

but baldly states that they should have nonetheless run concurrently.

Appellant’s Br. at 12. Therefore, this claim fails to state a substantial question.

Appellant’s issue D complains that the court imposed consecutive

sentences, each at the top of the standard range, for counts eight, nine, and

ten. Appellant argues that the serial imposition of consecutive sentences

without adequate rationale on the record require strict scrutiny, Appellant’s Br.

at 13, but he does not specify how the sentence is inconsistent with the

• 12 - J-S01044-26

Sentencing Code or why he believes it is contrary to the fundamental norms

of the sentencing process. Brown, supra. He states that the conduct

underlying counts eight, nine, and ten, namely; three counts of reckless

endangerment, involved three emergency personnel who were tangentially in

the zone of danger caused by Appellant’s vehicle, but that he posed no credible

risk of injury or harm to them and none of those individuals sustained any

injury or harm. Appellant’s Br. at 13-14.

Appellant again fails to raise a substantial question. He had a prior

record score of five and was sentenced within the standard range; twelve to

twenty-four months on each count of reckless endangerment. N.T., 1/2/25, at

49, 56-57. The court stated on the record that these sentences are in regard

to each individual who could have been hit by his vehicle. Id. at 56-57. Even

if Appellant had raised a substantial question, we do not find that an aggregate

sentence of thirty-six months’ to six years’ incarceration for these three counts

is excessive given that his path of flight took one life and could have easily

taken the lives of two law enforcement officers and another volunteer

firefighter. Id. at 47.

Appellant’s final issue argues that his sentence is manifestly excessive

given that his offenses were reckless as opposed to intentional. Appellant

argues that the sentencing court was influenced by the sense of public outrage

and displayed bias and animus emanating from this highly public and

notorious incident. Appellant’s Br. at 14. Appellant argues that the court failed

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to engage in a dispassionate exercise of individualized sentencing consistent

with sentencing norms and the objectives of the sentencing code. Id.

Appellant argues that there was no evidence that he acted purposefully and

merely used poor judgment. Id. at 15. Additionally, Appellant questions the

court’s decision to mention in its Rule 1925(a) opinion that count six of the

criminal information, homicide by vehicle while driving under the influence, 75

Pa.C.S.A. 3735(a)(1)(i), a Felony of the Second Degree, was among the

charges nolle prossed, which “significantly reduced [Appellant’s] incarceration

exposure.” Id. at 15; Tr. Ct. Op. at 2 (unpaginated). Appellant believes that

the court used this charge to justify its sentence when it should have ignored

this charge.

Insofar as Appellant claims that the trial court imposed an aggravated-

range sentence based on incorrect or impermissible factors, Appellant raises

a substantial question, warranting review. See Commonwealth v. Stewart,

867 A.2d 589, 592 (Pa. Super. 2005) (“Based on [a]ppellant’s assertion that

the sentencing court considered improper factors in placing the sentence in

the aggravated range, we conclude that [a]ppellant presents a substantial

question on appeal.”).

Most importantly, there is no evidence in the notes of testimony or in

the trial court’s analysis in its Rule 1925(a) opinion that it considered a nolle

prossed count in determining Appellant’s sentence. There is no mention of this

charge in the plea hearing transcript or in the sentencing transcript. The court

• 14 - J-S01044-26

did note in the procedural history section of its Rule 1925(a) opinion that the

DUI-related charge was dropped, but the court did not justify its sentence on

that fact.

At the time of sentencing, the trial court had the benefit of a pre-

sentence investigation. The court heard that Appellant had been pulled over

by the Pennsylvania State Police just four days prior to the deadly crash for

driving under a suspended license. N.T., 1/2/25, at 45. The court found

particularly persuasive that immediately after the crash Appellant made

statements concerning whether he would lose his job or whether his insurance

costs would go up. The court found the statements “completely outrageous

and actually offensive” because at no point did Appellant inquire about the

welfare of Officer Giles. N.T., 1/2/25, at 54.

In its 1925(a) opinion, the court stated as follows:

Prior to imposing sentence on Mr. Simmons, the court
appropriately considered many factors which Pennsylvania
requires, including the information contained in the Presentence
Investigation Report, the Summary of Case For Defendant’s Plea,
the Defendant’s Sentencing Memorandum, Commonwealth’s
Sentencing Memorandum, the many letters written by both friends
and relatives of the victim, Mr. Giles, and Mr. Simmons, the
defendant, as well as the in-court statements of the numerous
witnesses who so touchingly described the impact this crime has
had on the victim’s family, his fellow firefighters, and the
community. The court also considered the seriousness of the
crime, Mr. Simmons’ criminal history and more notably his
extensive history of vehicle code violations which were not
included in his Prior Record Score. These are all permissible factors
that this court properly considered in fashioning the sentence in
this case.

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The victim in this case was a veteran volunteer firefighter
who was, at the time of his killing, working to protect a crash
scene and attempting to ensure its security from exactly the
hazardous conditions that Mr. Simmons created by his reckless
driving. Impact letters were written by his fellow firefighters,
community members, and many others as well as a strong
showing of support from other firefighters in the courtroom. These
factors all taken into consideration not only justify but require an
aggravated sentence.

Tr. Ct. Op. at 13-14 (unpaginated) (paragraph spacing altered).

The balancing of the sentencing factors is the sole province of the

sentencing court, which has the opportunity to observe the defendant and all

witnesses firsthand. Commonwealth v. Kurtz, 294 A.3d 509, 536 (Pa.

Super. 2023). In conducting appellate review, this Court “cannot reweigh

sentencing factors and impose judgment in place of sentencing court where

lower court was fully aware of all mitigating factors[.]” Id. (citation omitted).

“When imposing a sentence, the sentencing court must consider the factors

set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public, [the]

gravity of [the] offense in relation to [the] impact on [the] victim[s] and [the]

community, and [the] rehabilitative needs of the defendant.” Commonwealth

v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation omitted and

formatting altered). When appropriate, a trial court may consider criminal

conduct not reflected in the prior record score or offense gravity score when

fashioning a sentence. 204 Pa. Code § 303.5 (d) (“The court may consider at

sentencing prior convictions, juvenile adjudications or dispositions not counted

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in the calculation of the Prior Record Score, in addition to other factors deemed

appropriate by the court.”)1

We find that the trial court did not abuse its discretion in fashioning

Appellant’s sentence despite his behavior being reckless rather than

intentional. The court considered all required and permissible factors and

provided adequate justification for its sentence.

Judgement of sentence affirmed.

DATE: 03/10/2026

---

1 We acknowledge our Supreme Court’s precedent in Commonwealth v.
Berry, 323 A.3d 641, 652 (Pa. 2024), clarifying that prior arrests for
unprosecuted crimes are not a permissible sentencing factor. We do not
suggest otherwise here. We merely state that a sentencing court may consider
other criminal conduct of defendant not reflected in the PRS or OGS where
appropriate. Examples of criminal “conduct” that are not “arrests” that may
be considered by a sentencing judge but may not be reflected in a prior record
score could be summary offense convictions, parole/probation violations, and
abuse/neglect findings in an orphan’s court proceeding where applicable to
the offense for which the sentence is being imposed. See 42 PA.C.S.A. §
9721(b). In this case, the court properly considered Appellant’s substantial
history of vehicle code violations, not merely arrests, which were not included
in his PRS.

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