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Commonwealth v. King

Superior Court of Pennsylvania

March 19, 2018


         Appeal from the Judgment of Sentence entered March 29, 2017, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0006852-2015, CP-02-CR-0016587-2014.



          KUNSELMAN, J.

         Appellant, Che Donte King, appeals from the judgment of sentence imposed at two different dockets, after he pled guilty to various drug charges and to a car accident involving death/personal injury and related offenses. In the one case, Appellant struck a pedestrian, Albert Kruszka, on Pittsburgh's South Side; after pausing briefly upon impact, Appellant sped away from the scene. Several days later, Mr. Kruszka died due to the collision. Because the trial judge did not abuse his discretion or commit an error of law in resentencing, we affirm.

         After Appellant pled guilty to the charges, the trial court originally imposed an aggregate sentence of 5-10 years of imprisonment, followed by three years' probation. Appellant timely appealed. The trial court appointed defense counsel to represent Appellant on appeal. In that appeal, defense counsel argued that one of the individual sentences exceeded the statutory maximum. We agreed, vacated the sentence, and remanded for a new sentencing hearing. (Commonwealth v. King, 159 A.3d 600 (Pa. Super. 2016) (unpublished memorandum).

         At the resentencing hearing, the trial court notified counsel that it had received an ex parte letter from the deceased victim's wife, Mrs. Kruszka. The court provided a copy to counsel for the parties. Defense counsel objected to the court considering the letter as a victim impact statement, because it contained a personal attack on him, which, according to counsel, exceeded the scope of what a victim impact statement may include. Specifically, the letter stated:

I will be in your court room on March 29th, along with my sons [], for the resentencing hearing of Che King, a career criminal who killed my husband, Albert Kruszka. I have been told that you sentenced King illegally - considering your knowledge and expertise, this offends my intelligence. Furthermore, [defense counsel] is lining his pockets with taxpayer dollars defending a confessed criminal. Mr. King has waited for March 29, two days after the statute of limitations for further charges. He has a long history of drug use, drug sales, driving without a license, and blatant disregard for the law. Only three [days] before killing my husband, King was stopped in Fayette county. My sons would still have their father if he had been detained. Our lives have been permanently changed for the worst due to this man's recklessness. The penitentiary system gets its name from an act of contrition - Mr. King must pay his penance within the prison system. This is his time to reflect upon the wrongs of his ways, not plot a way out of punishment, so that he can return to a life of crime. He has not been ordered to pay restitution. With the opioid epidemic costing innocent people their lives, this convicted, confessed heroin dealer has a drug conviction running concurrent with his accidental death conviction. I ask that you consider placing these two sentences consecutively, or for his original sentencing to stay in place. Myself and my sons respectfully request that you aid us in our healing and our journey towards forgiveness by keeping this man off the street as long as possible - and keeping myself, my family and the community safe.

Letter from Mrs. Kruszka (emphasis added).

         The trial court overruled counsel's objections and admitted the letter into evidence. The trial court then restructured the sentence to make it legal, and ultimately imposed the same total sentence on Appellant. This second timely appeal followed. Appellant argues that the trial judge erred and/or abused his discretion by considering irrelevant factors during the resentencing.

         Appellant challenges the discretionary aspects of his sentence. Such a challenge is not appealable as of right. Rather, Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 A.2d 1254 (Pa. Super. 2004). When an Appellant challenges a discretionary aspect of sentencing, we must conduct a four-part analysis before we reach the merits of the Appellant's claim. Commonwealth v. Allen, 24 A.3d 1059, 1064 (Pa. Super. 2011). In this analysis, we must determine: (1) whether the present appeal is timely; (2) whether the issue raised on appeal was properly preserved; (3) whether Appellant has filed a statement pursuant to Pa.R.A.P. 2119(f); and (4) whether Appellant has raised a substantial question that his sentence is not appropriate under the Sentencing Code. Id.

         Appellant filed a timely notice of appeal, and properly preserved his claim in a post-sentence motion. Additionally, Appellant has complied with Pa.R.A.P. 2119(f). See Appellant's Brief at 21-22. We must therefore determine whether Appellant has raised a substantial question for our review.

         A substantial question will be found where the defendant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing process. Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (citations omitted). Here, within his 2119(f) statement Appellant asserts:

In this case, the sentencing court violated 18 P.S. § 11.201(5) and 42 Pa.C.S. § 9738 as well as the Sixth Amendment of the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution when the sentencing court considered irrelevant factors that were stated in a victim impact statement. See Commonwealth v. Smithton, 631 A.2d 1053, 1057 (Pa. Super. 1993) ("It is an abuse of discretion, as a denial of due process of law, for the sentencing court to consider irrelevant factors during sentencing.")
In this case, the sentencing court overruled the objections of defense counsel to permit a victim impact statement into evidence, which had disparaging remarks against defense counsel. Disparaging remarks against defense counsel are not, nor can they ever be, considered proper victim impact statement material. The acceptance of disparaging remarks against defense counsel are irrelevant and violative of 18 P.S. §11.201(5) and 42 Pa.C.S. § 9738 as well as the Sixth Amendment of the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution. The appeal should be granted in this case. See Commonwealth v. Penrod, 578 A.2d 486, 490 (Pa. Super. 1990).

Appellant's Brief at 22-23.

         We interpret the arguments in Appellant's Rule 2119(f) statement essentially to assert that in sentencing Appellant, the trial court considered improper factors. This claim raises a substantial question. Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super 2014).[1]

         The standard employed when reviewing the discretionary aspects of sentencing is very narrow. Commonwealth v. Koren, 646 A.2d 1205, 1208 (Pa. Super. 1994). We may reverse only if the sentencing court abused its discretion or committed an error of law. Id. Merely erring in judgment is insufficient to constitute abuse of discretion. Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996). A court has only abused its discretion when "the record disclosed that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will." Id.

         Although he stated only one question on appeal, Appellant actually makes two arguments. First, he argues that the trial court erred in admitting the victim impact statement of Mrs. Kruszka, the victim's wife. Additionally, he argues that the trial court improperly ...

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