J. S59032/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
JAMES CLAYTON GRACE,                        :
                                            :
                          Appellant         :     No. 459 WDA 2015

             Appeal from the Judgment of Sentence March 10, 2014
               In the Court of Common Pleas of Allegheny County
               Criminal Division No(s).: CP-02-CR-0006787-2013
                                         CP-02-CR-0008328-2013

BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 15, 2015

        Appellant, James Clayton Grace, appeals from the judgment of

sentence entered in the Allegheny County Court of Common Pleas.

Following a non-jury trial, at 6787-2013, Appellant was found guilty of

aggravated assault,1 simple assault,2 harassment,3 disorderly conduct,4 and




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2702(a)(1).
2
    18 Pa.C.S. § 2701(a)(1).
3
    18 Pa.C.S. § 2709(a)(1).
4
    18 Pa.C.S. § 5503(a)(4).
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public drunkenness.5 Appellant entered a general plea to burglary,6 criminal

trespass,7 terroristic threats,8 and possession of a weapon9 at 8328-2013.

N.T., 12/9/13, at 30. We affirm.

        We glean the facts from the record.     At trial, Victim testified that

Appellant was her boyfriend.       N.T., 12/5/13, at 8.   Victim was not in a

relationship with him at the time of the incident on May 3, 2013. Id. She

had filed a temporary protection from abuse 10 (“PFA”) petition, which

excluded him from Victim’s residence. Id. Appellant was at Victim’s house

near her garage when she first saw him. Id. at 9. She told him he was not

allowed to be there because of the PFA.        Id.   Appellant hit Victim with

“closed fists, on each side of [her] face.” Id. at 10. Her face was bleeding.

Id. at 11. Victim testified that after he stopped hitting her, she ran “down

the road” yelling “He’s going to kill me.    Somebody help me.”     Id. at 12.

Appellant “tackled” her and she “landed flat in the road.” Id. at 12-13. She


5
    18 Pa.C.S. § 5505.
6
    18 Pa.C.S. § 3502(a)(2).
7
    18 Pa.C.S. § 3503(a)(1)(i)-(ii).
8
    18 Pa.C.S. § 2706(a)(1).
9
    18 Pa.C.S. § 907(b).
10
   At the sentencing hearing, Appellant referred to the incident that gave rise
to the PFA. She stated that on May 1st, 2013, she “woke up to [Appellant]
naked on top of [her], strangling [her].” N.T. Sentencing Hr’g, 3/10/14, at
12.



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testified that he “put his hand around my neck and strangled me as he was

punching me, telling me to shut the ‘F’ up.” Id. at 13. Her neighbor came

out and Appellant “took off down the road.” Id. at 15. Victim’s neighbor,

David Dull, was aware of the fact that “she had a PFA against” Appellant.

N.T., 12/9/13, at 5-6. He called 911. Id. at 7. He saw Appellant punching

Victim and heard her screaming “stop, you’re going to kill me . . . .” Id. at

8. He testified Appellant “had her by the throat and he was punching her in

the face.”   Id.   Dull ran towards Appellant and Appellant released Victim.

Id. at 9.

        On March 10, 2014, Appellant was sentenced to six to twenty years’

imprisonment for the criminal complaint at 6787-2013 and a concurrent

term of imprisonment of two to five years for the criminal complaint at

8328-2013. N.T., 3/10/14, at 16. Appellant filed a pro se motion to modify

sentence on March 17, 2014.11

        On December 2, 2014, Appellant filed a pro se Post Conviction Relief

Act12 (“PCRA”) petition. The court appointed counsel to represent Appellant.

Counsel filed an amended PCRA petition.     On January 21, 2015, the court

granted the petition and reinstated Appellant’s post-sentence rights nunc pro

tunc.

11
  We note that the record in 6787-2013 contains the consolidated filings for
6787-2013 and 8328-2013.
12
     42 Pa.C.S. §§ 9541-9546.




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      On January 26, 2015, Appellant filed a post-sentence motion. The trial

court denied his post-sentence motion on March 11, 2015.             This timely

appeal followed.    Appellant filed a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal and the trial court filed a responsive opinion.

      Appellant raises the following issue for our review:

         1. Did the trial court err in denying Appellant’s post
         sentencing motions since the trial court erred in imposing
         an excessive aggravated range guideline sentence of 6-20
         years’ imprisonment at the aggravated assault conviction
         at 6787-2013, especially since Appellant possessed
         longstanding mental health, drug and alcohol problems,
         which greatly contributed to the instant aggravated
         assault. Moreover, the trial court failed to consider all of
         the factors contained at 42 Pa.C.S. § 9721(B)?

Appellant’s Brief at 3.

      Appellant challenges the discretionary aspect of his sentence.        This

Court has stated

         discretionary aspects of [ ] sentence . . . are not
         appealable as of right. Rather, an appellant challenging
         the sentencing court’s discretion must invoke this Court’s
         jurisdiction by satisfying a four-part test.

            We conduct a four-part analysis to determine: (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).




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Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some

citations omitted).

      Instantly, Appellant timely appealed, preserved his issue in his post

sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.

According, we ascertain whether Appellant has raised a substantial question.

See id.

      “We have held that a substantial question is raised where an appellant

alleges the sentencing court erred by imposing an aggravated range

sentence      without   consideration      of   mitigating   circumstances.”

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012). This

Court has stated that “to the extent that [a defendant’s] claim impugns the

trial court’s failure to offer specific reasons for the sentence that comport

with the considerations required in section 9721(b), we conclude that it

raises a substantial question . . . .”   Commonwealth v. Coulverson, 34

A.3d 135, 143 (Pa. Super. 2011) (citation omitted).

      Appellant contends the trial court imposed a manifestly excessive

aggravated guideline range sentence because he suffered from borderline

personality disorder and was addicted to drugs and alcohol. Appellant’s Brief

at 11-12. Appellant argues he needs psychiatric help and medication rather

than imprisonment. Id. at 12. He avers the “[c]ourt failed to consider the

factors at 42 Pa.C.S. § 9721(b), including the protection of the public, the




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gravity of the offense as it relates to the community, and [his] rehabilitative

needs, including the nature and characteristics of” Appellant. Id.

      We find that Appellant’s rule 2119(f) statement presents a substantial

question.   See Bowen, 55 A.3d at 1263; Coulverson, 34 A.3d at 143.

Therefore, we will review the merits of Appellant’s challenge to the

discretionary aspects of his sentence.

      Our standard of review is as follows:

            Sentencing is a matter vested in the sound discretion
            of the sentencing judge, and a sentence will not be
            disturbed on appeal absent a manifest abuse of
            discretion. An abuse of discretion is more than just
            an error in judgment and, on appeal, the trial court
            will not be found to have abused its discretion unless
            the record discloses that the judgment exercised was
            manifestly unreasonable, or the result of partiality,
            prejudice, bias, or ill-will.

         More specifically, 42 Pa.C.S.A. § 9721(b) offers the
         following guidance to the trial court’s sentencing
         determination:

            [T]he sentence imposed should call for confinement
            that is consistent with the protection of the public,
            the gravity of the offense as it relates to the impact
            on the life of the victim and on the community, and
            the rehabilitative needs of the defendant.

         42 Pa.C.S.A. § 9721(b).

         Furthermore,

            Section 9781(c) specifically defines three instances
            in which the appellate courts should vacate a
            sentence and remand: (1) the sentencing court
            applied the guidelines erroneously; (2) the sentence
            falls within the guidelines, but is “clearly
            unreasonable” based on the circumstances of the


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           case; and (3) the sentence falls outside of the
           guidelines and is “unreasonable.”        42 Pa.C.S. §
           9781(c). Under 42 Pa.C.S. § 9781(d), the appellate
           courts must review the record and consider the
           nature and circumstances of the offense, the
           sentencing court’s observations of the defendant, the
           findings that formed the basis of the sentence, and
           the sentencing guidelines. The weighing of factors
           under 42 Pa.C.S. § 9721(b) is exclusively for the
           sentencing court, and an appellate court could not
           substitute its own weighing of those factors. The
           primary consideration, therefore, is whether the
           court imposed an individualized sentence, and
           whether the sentence was nonetheless unreasonable
           for sentences falling outside the guidelines, or clearly
           unreasonable for sentences falling within the
           guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012)

(alterations and some citations omitted).

     Our Supreme Court has stated:

        Where pre-sentence reports exist, we shall continue to
        presume that the sentencing judge was aware of relevant
        information regarding the defendant’s character and
        weighed those considerations along with mitigating
        statutory factors. A pre-sentence report constitutes the
        record and speaks for itself.      In order to dispel any
        lingering doubt as to our intention of engaging in an effort
        of legal purification, we state clearly that sentencers are
        under no compulsion to employ checklists or any extended
        or systematic definitions of their punishment procedure.
        Having been fully informed by the pre-sentence
        report, the sentencing court’s discretion should not
        be disturbed. This is particularly true, we repeat, in
        those circumstances where it can be demonstrated that
        the judge had any degree of awareness of the sentencing
        considerations, and there we will presume also that the
        weighing process took place in a meaningful fashion. . . .

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added).



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      At the sentencing hearing, the court stated that it had “ordered, read

and considered a presentence report prepared in [Appellant’s] behalf.           In

addition to that, I have a service plan . . . from Justice Related Services.”

N.T. Sentencing Hr’g, 3/10/14, at 3.       Appellant’s counsel noted that “both

my client and I have read the presentence report.” Id.

            [W]e are in agreement with Dr. Martone, what she says in
            the presentence report that [Appellant] does need dual
            diagnosis treatment for his mental health issues, also with
            his drug and alcohol problems. I would like the [c]ourt to
            know that he was honorably discharged from the Army
            back in 1993. He was diagnosed as having borderline
            personality disorder and, of course he’s going to need
            treatment from [sic] that.

Id. at 4.

      The trial court stated that Victim

            did everything right that she was supposed to and she
            acted under the law. When she first became afraid of you,
            she went and got a PFA so that you would stay away from
            [her] and her children. You reacted by assaulting her,
            punching in her face, breaking into her house. . . . You
            have the prior conviction for attempted murder with a
            firearm of a police officer or of a sheriff’s officer and you
            were paroled in 2010. . . . You did a long term in the state
            penitentiary, but since you got out, you were arrested
            beside the two cases I have for another assault. It’s
            interesting that before the incidents you were not taking
            your meds but do admit to self-medicating . . . .[13] You
            knew that you had problems, you knew that you were out
            of control. The courts have made several attempts to

13
   At trial, Appellant testified that he suffered from mental illness, specifically
borderline personality disorder and he stated he was bipolar. N.T., 12/9/13,
at 17. He testified at sentencing that he has “a problem with drugs and
alcohol, and it fuels this anger and bitterness from when I was a kid and I
need some help.” N.T., 3/10/14, at 5.



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         rehabilitate you and you have failed at all of them. You
         continue to live a life of assaultive behavior and criminal
         activity.

           The [c]ourt agrees that you are a danger to the
         community.

Id. at 15-16.

      Appellant’s argument that the trial court ignored mitigating factors is

belied by the record.     Furthermore, the court considered the presentence

report. See Devers, 546 A.2d at 18. Appellant’s claim that the court failed

to offer specific reasons for the sentence pursuant to Section 9721 factors is

without merit.    See Coulverson, 34 A.3d at 143.          Accordingly, after

examining the record as a whole, we find that the trial court’s sentence was

not manifestly excessive. We discern no abuse of discretion. See Bricker,

41 A.3d at 875-76.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/15/2015




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