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.
BEFORE: BOWES, J. OLSON, J. and KUNSELMAN, J.
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
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2016) (unpublished memorandum).
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
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
Letter from Mrs. Kruszka (emphasis added).
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.
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.
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.
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
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.
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).
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
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 ...