J-S66001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

STEPHEN PAUL COULSON

                            Appellant               No. 699 WDA 2014


            Appeal from the Judgment of Sentence March 10, 2014
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0008360-2013


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED JANUARY 05, 2016

        Appellant, Stephen Paul Coulson, appeals from the judgment of

sentence of seven and one-half (7½) to fifteen (15) years of incarceration

entered on March 10, 2014, after Appellant pled guilty to aggravated

assault, burglary, criminal trespass, and recklessly endangering another

person (REAP).1 Upon review, we affirm.

        On January 22, 2014, Appellant appeared before the trial court and

entered his plea to the above charges.2 The Commonwealth stated it was

withdrawing a charge of criminal attempt – homicide, in exchange for the

plea. N.T., 1/22/14, at 2. The trial court ordered a pre-sentence report.
____________________________________________


1
    18 Pa.C.S.A. §§ 2702, 3502, 3503 and 2705, respectively.
2
  The facts underlying Appellant’s convictions are detailed below in our
analysis.



*Retired Senior Judge assigned to the Superior Court.
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      On March 10, 2014, the trial court convened a sentencing hearing.

The trial court heard from counsel, Appellant, and the victim’s two

daughters. The trial court additionally considered written statements from

the victim’s other daughter and son. At the conclusion of the hearing, the

trial court sentenced Appellant to seven and one-half (7½) to fifteen (15)

years of incarceration for the aggravated assault conviction. The trial court

sentenced Appellant to a consecutive five (5) years of probation for the

burglary conviction, and imposed no further penalties for the criminal

trespass and REAP convictions.

      On March 17, 2014, Appellant filed a timely post-sentence motion to

modify sentence, which, after conducting a hearing on April 3, 2014, the trial

court denied on April 9, 2014. Appellant filed this timely appeal on May 2,

2014. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

      Appellant presents four sentencing issues for our review:

            1. Should the sentence imposed upon Appellant
               Coulson be vacated, and his case remanded for
               re-sentencing, owing to the fact that the
               sentencing court in this case, in imposing a
               beyond-the-aggravated-range         non-guidelines
               sentence, purported to sentence within the
               sentencing guidelines but applied those guidelines
               erroneously (a situation that 42 Pa.C.S. §
               9781(c)(1) indicates requires the granting of
               sentencing relief)?

            2. Should the sentence imposed upon Appellant
               Coulson be vacated, and his case remanded for
               re-sentencing, owing to the fact that the
               sentencing court’s 42 Pa.C.S. § 9721(b)
               statement of sentencing rationale indicated that
               Appellant was sentenced as he was because the

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               nature of the offense that he committed (a
               situation  that     § 9721(b) itself indicates
               constitutes grounds for the awarding of
               sentencing relief)?

            3. Should the sentence imposed upon Appellant
               Coulson be vacated, and his case remanded for
               re-sentencing, owing to the fact that the non-
               guidelines sentence imposed upon him was
               unreasonable in view of the totality of the
               circumstances (a situation that 42 Pa.C.S. §
               9781(c)(3) indicates requires the granting of
               sentencing relief)?

            4. Are not all of the foregoing legal theories properly
               before th[e Superior] Court owing to the fact that
               defense counsel in the sentencing court expressly
               and repeatedly argued that a shorter prison
               sentence should be imposed upon Appellant than
               was imposed?

Appellant’s Brief at 3-4.

      All of Appellant’s four issues are interrelated, such that we address

them together.     In each issue, Appellant objects to the length of his

sentence, and thus challenges the discretionary aspects of his sentence.

Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super. 2010) (claim

that sentence is excessive is a challenge to the discretionary aspects of a

sentence). It is well-settled that “sentencing is a matter vested in the sound

discretion of the sentencing judge, whose judgment will not be disturbed

absent an abuse of discretion.”     Commonwealth v. Ritchey, 779 A.2d

1183, 1185 (Pa. Super. 2001).      Moreover, pursuant to statute, Appellant

does not have an automatic right to appeal the discretionary aspects of his

sentence.   See 42 Pa.C.S.A. § 9781(b).     Instead, Appellant must petition

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this Court for permission to appeal the discretionary aspects of his sentence.

Id.

      Recently, this Court reiterated:

            The right to appellate review of the discretionary
            aspects of a sentence is not absolute, and must be
            considered a petition for permission to appeal. See
            [Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
            Super. 2007)] (citation omitted). An appellant must
            satisfy a four-part test to invoke this Court's
            jurisdiction when challenging the discretionary
            aspects of a sentence.

            [W]e conduct a four-part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal;
            (2) whether the issue was properly preserved at
            sentencing or in a 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. Moury, 992 A.2d 162, 170 (Pa.
            Super. 2010) (citations omitted).

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-1266 (Pa. Super.

2013) (en banc), appeal denied, 104 A.3d 1 (Pa. 2014).

            “A substantial question exists only when the
            appellant advances a colorable argument that the
            sentencing judge's actions were either: (1)
            inconsistent with a specific provision of the
            Sentencing Code; or (2) contrary to the fundamental
            norms which underlie the sentencing process.”
            Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.
            Super. 2012) (citations and internal quotation marks
            omitted).

Buterbaugh, 91 A.3d at 1266.



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      Instantly, Appellant filed a timely notice of appeal, preserved his

sentencing challenge in his post-sentence motion to modify sentence, and

included a separate Rule 2119(f) concise statement in his appellate brief.

See Appellant’s Brief at 17-22. To the extent Appellant argues that the trial

court failed to consider certain factors, his assertion that the trial court failed

to consider mitigating facts of record does not raise a substantial question.

Buterbaugh, 91 A.3d at 1266.            However, with regard to Appellant’s

contention that the trial court sentenced him beyond the guidelines to what

the trial court “mistakenly believed was an aggravated range guideline

sentence,” and misapplied the sentencing guidelines “in view of the totality

of the circumstances,” such claims present substantial questions.             See

Appellant’s Brief at 3; Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super.

2007) (claim that the sentencing court misapplied the sentencing guidelines

presents a substantial question); Commonwealth v. Eby, 784 A.2d 204,

206 (Pa. Super. 2001) (claim that the sentencing court imposed an

unreasonable sentence by sentencing outside the guideline ranges presents

a substantial question). This, we will consider those claims.

      In examining the merits of Appellant’s claims, we recognize that the

primary consideration in our review of the discretionary aspects of a

sentence imposed by a trial court is whether the court imposed an

individualized   sentence,   and   whether    the   sentence   was    nonetheless

unreasonable for sentences falling outside the guidelines. Commonwealth



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v. Coulverson, 34 A.3d 135 (Pa. Super. 2011). Also, “[a] trial court need

not undertake a lengthy discourse for its reasons for imposing a sentence or

specifically reference the statute in question, but the record as a whole must

reflect the sentencing court’s consideration of the facts of the crime and

character of the offender.”   Commonwealth v. Crump, 995 A.2d 1280,

1283 (Pa. Super. 2010), appeal denied, 13 A.3d 475 (Pa. 2010).

      Here, our thorough review of the record as a whole reveals that the

sentence imposed by the trial court – albeit outside of the guidelines, and

with a misstatement by the trial court – was not unreasonable, and reflected

the trial court’s consideration of the facts of the crime and the character of

Appellant. We recount our review of the record in detail below because of its

relevance to our analysis.

      At sentencing, the Commonwealth explained that the victim hired

Appellant and worked with him on the day of the attack. N.T., 3/10/14, at

17.   That evening, while the victim was asleep in his home, Appellant

attacked him with a hammer, causing the victim to receive sixty-two (62)

stitches and to suffer from continuing dizziness until the present day. Id.

“At the hospital, [the victim] was told if the hammer had hit his temple, it

would have killed him.” Id. The Commonwealth stated that the standard

guideline sentence for Appellant was thirty-six (36) to fifty-four (54) months

of incarceration, and indicated it was looking for a sentence that was at least

within the standard range. Id.


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      Appellant’s counsel noted that although Appellant was a veteran and

served two combat tours, he was rejected from both Veterans Court and

Mental Health Court “because of the seriousness of this crime.”     Id. at 5.

Appellant’s counsel explained:

            Because of the seriousness of this crime, Your
            Honor. It was an attempted homicide. He’s now
            pled guilty to the crime of aggravated assault. He
            struck a sixty-five-year-old man in the head with a
            hammer, so I believe that’s why it was rejected from
            the specialty court programs, like Mental Health
            Court, Drug Court, Veterans Court.

Id. at 5-6.   Appellant’s counsel requested that the trial court sentence

Appellant in the mitigated range of the guidelines to a minimum of

twenty-four (24) months of incarceration.

      Thereafter, the trial court commented:

            That’s the amazing part of it to me.           Here’s
            somebody who has a past, who has a criminal
            record. You use drugs. You abuse drugs. You’ve
            been thrown out of the [A]rmy.           You’ve been
            basically cast to the side by basically everyone over
            your years, and the hand that [the victim has]
            extended to you, what do you do? You smash some
            man in the head while he sleeps in his bed.

                                    ***

            How do you do that to a friend, someone who
            extends the hand of help to you, someone who offers
            you a job, someone who pays you, someone who has
            extended that random act of kindness to you?

Id. at 7.

      Appellant responded that there was “no excuse” for what he did. Id.



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      Although the victim was present, the Commonwealth stated that he

“was too upset to speak.” Id. at 8.

      Two of the victim’s daughters testified. Ms. Dana Valerio stated that

Appellant’s attack on her father “changed her life forever” and “has been the

most difficult time of [her] life.” Id. at 9. Ms. Valerio detailed the impact of

the crime on the victim and his family:

            May 30, the day before the crime, was spent at
            Kennywood Park as a family, watching my dad take
            turns riding rides with seven of his ten young
            grandchildren all under the age of nine. The next
            time I would speak to my dad would be in the early
            morning hours of June 1st at 2:09 a.m. when I
            received a call from my father who notified me of the
            home invasion and the brutal attack that took place
            and that he needed our help. That conversation I
            will never forget. I told him that I would drive him
            to the hospital and my brother-in-law Scott would
            stay at his house with the police as they processed
            the crime scene.      I will always remember the
            shakiness in his voice when he said, “I want Scott to
            take me. I don’t want you girls to see me like this.”
            However, nothing could have prepared me for the
            violent scene I was about to witness.

            I was met at my childhood home by police officers
            and detectives who walked me through my father’s
            house pointing out evidence of the attack … The
            blood-spattered walls and floors, the light switch and
            the wall … covered in blood and the obvious signs of
            the struggle that took place … are images I will never
            forget. … My siblings and I feel that our childhood
            home has forever been changed. A place that once
            held so many wonderful memories has been
            overshadowed by the horrific events of that night.

            In the weeks following the attack, I watched my
            father struggle with many different emotions, anger,
            frustration and confusion, about why a person he


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            tried to help would carry out such a malicious attack
            as he slept defenselessly in his bed. We, as his
            children, were worried for his health and safety. My
            sister Diana and I shared the task of having him stay
            with us for over two months as he recovered from
            his injuries. In addition to his physical injuries, we
            observed him having difficulty sleeping. He would
            wake frequently during the night with nightmares of
            the attack. Trying to shield his grandchildren from
            the details of the attack, coordinating doctors’
            appointments and cleaning up his home were equally
            challenging.

            Our family’s summers are usually spent at my dad’s
            house swimming at the pool, taking boat rides and
            going on trips. Instead, we spent most of that
            summer calling, e-mailing and meeting with
            biohazard removal teams, a carpet company, home
            security system installers, a door replacement
            company and a homeowners insurance agent to
            repair his home from the damage. All of these tasks
            were very time-consuming and many times required
            us to be absent from work until the process was
            completed.

            The events that transpired on June 1st, 2013, did not
            only change my father’s life, it changed the lives of
            our entire family.

Id. at 10-12.

      A second daughter, Mrs. Diana Seabol, testified that she felt

responsible for “bringing [Appellant] into our lives” because she and her

husband had hired Appellant to perform contracting work on their home and

rental properties.   Id. at 13.   Mrs. Seabol also detailed the impact of the

crime:

            The overwhelming amount of guilt and anger has led
            me to many sleepless and restless nights. On those
            same nights my thoughts shift to my father. I lay
            awake and think of how he feels trying to sleep in

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          the same house, in the same room and in the same
          bed where he was awoken to the smashing of a
          hammer to his temple.

          My father is a hard-working businessman whose only
          fault was wanting to help a guy who was down on his
          luck. My dad is the rock of our family. He is the
          person we all go to when we need help with
          anything, and after his attack he was the one that
          needed my help. My sisters and I had to shuffle my
          father between our houses to monitor his recovery
          and to lessen our own missed days of work. He
          stayed at my house most of the time while he
          recovered from his injuries. He lived at my house for
          at least two months because I was so concerned for
          his health and safety.        He lives alone and was
          suffering    from    debilitating   headaches.      He
          complained of how the light and noise were so
          bothersome to him. He also mentioned a constant
          ringing in his ears that lasted for weeks. He suffered
          from dizziness and blurred vision. He could not be
          left alone.

          I had to take off numerous days of work without pay
          to monitor him and to drive him to many of his
          follow-up doctors’ appointments. I have twin nine-
          year-old boys and a four-year-old daughter who I
          had to lie to about what had happened to their
          grandfather because I didn’t want to scare them.
          We had to be careful of what we said around them
          when we were calling doctors or family to update
          them on my father’s condition. My boys have since
          overheard and discovered what happened to their
          grandfather and continue to ask questions and worry
          about his well-being.

          My father had no health insurance.     He is self-
          employed. In the weeks following the attack, he
          constantly agonized over how he was going to pay
          for his financially overwhelming medical bills. He
          only allowed us to get the treatment the doctors
          deemed absolutely necessary and skipped the rest
          because he [didn’t know] how he was going to pay
          for it.


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           I can describe those weeks as emotionally and
           physically draining for my entire family. We were
           still in shock that this happened.      The array of
           emotions are overwhelming; anger, guilt, pain,
           sadness, shock, wondering how someone could do
           such a horrific thing, mixed with joy, happiness,
           thankfulness and love that my dad was still alive. I
           could not imagine my life without him in it.

           I have taken steps to insure his safety by
           immediately calling to have his home security
           system updated to the latest technology. I continue
           to worry about him so much that I had the
           monitoring system set up so I am e-mail-alerted
           every time his alarm arms or disarms. Since he has
           returned to his home, I vigilantly check it every
           morning and every evening and sometimes in the
           middle of the night just to make sure he’s locked in
           and secure in his home.

           I ask that Your Honor invoke the maximum sentence
           allowed by law to [Appellant] for his violent and
           vicious attack on my father. This attack has taken
           away my family’s sense of security. [Appellant] has
           taken away my father’s willingness to help others,
           and I think that’s the most tragic thing of all, and my
           family will never be the same. Thank you.

Id. at 13-15.

     After Mrs. Seabol’s testimony, the Commonwealth provided the trial

court with written statements from the victim’s daughter, Maureen Loyer,

and his son, Mark Winzek, who did not speak on the record. Id. at 16.

     Appellant spoke on his behalf, and apologized to the victim and his

family:

           I wrote a statement, but I memorized it. I’m sorry
           Joe. I have problems with it too. I have issues with
           it too. When I replay what I did in my head, I have
           problems with it myself.


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             Scott, I am sorry. I was in your dad’s house. You
             guys did give me work when I needed work. I can’t
             understand why I did what I did, to be honest with
             you.

             Joe’s business is a block from my house, and I’ve
             been down there in the mornings – every morning
             for coffee. I take my little boy down there, and Joe
             puts him on the counter. He slices up watermelon
             and gives me food when I need it. I’m sorry, but as
             his father – I’m so sorry, man. I really am. And I
             can’t understand why I did what I did. Joe is a good
             man, and he’s helped me a lot of times, and so has
             Scott. I’m just sorry. I look at you, and I really am.
             I don’t even know why I did what I did. I can’t even
             recall it, and I think about it all the time. I think
             about what you guys had to go through too, because
             I think about if it was my father, what I would feel,
             and I don’t have [any] excuse, and I can’t use drugs
             as an excuse because I know what they do, and I
             can’t use that as an excuse, and I’m not going to.
             That’s all I have.

Id. at 18.

      After hearing from the victim’s family and Appellant, the trial court

offered the following detailed rationale for its sentence:

             I’ve considered the sentencing guidelines, the nature
             of the charges, the fact that [Appellant has]
             accepted responsibility by pleading guilty.       I’ve
             considered [Appellant’s] statement to the [trial
             c]ourt, [Appellant’s] apologies to the victim in open
             court. I’ve considered also [Appellant’s] lawyer’s
             statements and arguments on [Appellant’s] behalf.
             I’ve considered the Commonwealth’s attorney’s
             arguments on behalf of the Commonwealth and the
             victim.    I’ve considered the contents of the
             presentence report, including [Appellant’s counsel’s]
             amendments and – or corrections, rather, to a
             subsection with page six, the third block regarding
             an incident on January 31st of 1999 while [Appellant]
             apparently was in the military, the Army. I’ve also

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           considered the letters that have been written on
           behalf of the victim; his daughter, Maureen Loyer;
           Mark Winzek; Dana Valerio, who testified in open
           court today; Diana Seabol, who also testified in open
           court.    I’ve considered the viciousness and the
           nature and seriousness of this offense, the apparent
           lack of provocation or any reasonable or rational
           basis for this, and as well and as importantly, the
           impact on the victim and his family that continues as
           well as the financial impact. I have a proposed
           Order of Court for $6,068.56 and $1,000 for
           restitution.   And the punitive, rehabilitative and
           deterrent aspects of sentencing. I’ve also considered
           [Appellant’s] long history of drug abuse that’s
           apparently been interwoven with [Appellant’s] life in
           the military and even after [Appellant had] gotten
           out which continues up to and through the events of
           this criminal episode.

           For all those reasons, it’s the judgment and sentence
           of the [trial c]ourt at Count 2 that [Appellant] be
           sentence to not less than seven and [one-]half nor
           more than fifteen years at a state correctional facility
           to be determined by the Department of Corrections.

                                     ***

           This is in the aggravated range of the sentencing
           guidelines, and the reasons are the seriousness of
           the offense, the unprovoked nature of the attack, the
           long-standing impact on the victim and his family,
           and [Appellant’s] history. Even though [Appellant
           has] a prior record score of zero, [Appellant has] had
           a lot of contact with the criminal justice system both
           as a civilian and the military that seems to be a
           common thread also with drug abuse that [Appellant
           has] neglected to get under control in all of these
           years.

Id. at 18-20.




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      Although the trial court misspoke when explaining that its sentence

was “in the aggravated range,” it later acknowledged that the sentence was

outside of the guidelines, and stated:

            The [trial] court misspoke when it stated the
            sentence was in the aggravated range. (N.T. 1, p.
            20). The sentence, in fact, exceeds the aggravated
            range of the applicable sentencing guidelines. The
            [trial c]ourt intended to sentence [Appellant] to 7½ -
            15 years plus probation, and placed its reasons on
            the record.

Trial Court Opinion, 3/24/15, at 5.

      In addition, as noted above, Appellant filed a motion to modify

sentence, and the trial court convened a hearing on April 3, 2014. At the

hearing, Appellant’s counsel’s reiterated Appellant’s prior record score of

zero, and asserted that the attack was an “isolated incident,” and Appellant’s

“first run-in with any crime of violence.”     N.T., 4/3/14, at 3.   Appellant’s

counsel argued, “While the facts of this case are not mitigated, the person

is.   There’s a lot of mitigating circumstances about [Appellant].”         Id.

Appellant’s counsel recounted Appellant’s military tours of duty in Somalia

and Haiti, his diagnosis of Post-Traumatic Stress Syndrome, and his

demonstrated remorse. Id. at 4. Again, Appellant apologized to the victim

in open court. Id. at 4-5.

      The Commonwealth responded that it did not seek “only a standard

range sentence,” and repeated the victim’s continued health challenges. Id.

at 5-6. Subsequently, and significantly, the trial court commented:



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              I feel that the sentence – I gave it a lot of thought,
              especially with the presentence investigation, [and]
              all the testimony entered at that time. I felt it was
              an appropriate sentence then. I still feel it’s an
              appropriate sentence.

Id. at 7.

      In assessing the reasonableness of an extra-guidelines sentence, we,

as a reviewing court, must look at the nature and circumstances of the

offense, the history and characteristics of the defendant, the opportunity of

the sentencing court to observe the defendant, the presentence investigation

report, the findings on which sentence was based, and the sentencing

guidelines. Commonwealth v. Septak, 518 A.2d 1284 (Pa. Super. 1986).

Here, our review of the entire record confirms that the trial court, after

careful     and   thorough   consideration   of   the   relevant   factors,   tailored

Appellant’s sentence to the particular circumstances of this case. Hence, we

do not find that Appellant’s sentence is unreasonable. Given the foregoing,

we discern no abuse of discretion by the trial court, and conclude that

Appellant’s sentencing issues are without merit.

      Judgment of sentence affirmed.

      Judge Stabile joins this memorandum.

      Judge Strassburger files a Dissenting Memorandum.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




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