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COMMONWEALTH PENNSYLVANIA v. ROBERT SMITH (12/16/87)

filed: December 16, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT SMITH, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal at No. 4786/1985.

COUNSEL

John P. Hendrzak, Assistant Public Defender, Doylestown, for appellant.

Lawrence M. Cherba, Assistant District Attorney, Doylestown, for Com., appellee.

Montemuro, Popovich and Cercone, JJ.

Author: Montemuro

[ 369 Pa. Super. Page 2]

Appellant Robert Smith appeals from the judgment of sentence of the Court of Common Pleas of Bucks County entered on November 21, 1986. Appellant was convicted by a jury of homicide by vehicle,*fn1 involuntary manslaughter,*fn2

[ 369 Pa. Super. Page 3]

    and driving under the influence of alcohol.*fn3 He was sentenced to a period of incarceration of 29 1/2 to 59 1/2 months on the homicide by vehicle charge and a consecutive two year period of probation on the driving under the influence charge.*fn4

Appellant was the operator of a motor vehicle involved in a two vehicle accident on August 13, 1985. The evidence presented at trial established that appellant's vehicle had crossed the center line of the highway and struck a vehicle operated by Mrs. Margery Dewar head on. The impact of the crash sent Mrs. Dewar's vehicle over an embankment, killing her. Blood tests taken two hours after the accident revealed that appellant's blood alcohol content was 0.09%.

Appellant was convicted by a jury of homicide by vehicle, involuntary manslaughter, and driving under the influence of alcohol. A sentencing hearing was held, at which the victim's husband testified. A presentence investigation was also submitted. The trial judge sentenced appellant to a term of 29 1/2 to 59 1/2 months imprisonment on the homicide by vehicle conviction and a consecutive 2 year period of probation on the driving under the influence conviction. In addition, the trial judge ordered one hundred hours of community service to be performed during the probationary period and two hundred hours during the parole period. The court granted a reconsideration of sentence hearing but made no changes in appellant's sentence. This timely appeal seeking remand for resentencing followed.

Appellant claims that the trial court abused its discretion because it failed to consider the sentencing guidelines in imposing sentence. He also contends that the reasons set forth for deviating from the sentencing guidelines and imposing a sentence of 29 1/2 months to 59 1/2 months, one half

[ 369 Pa. Super. Page 4]

    month less than the five year statutory maximum sentence, were ...


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