J-A05039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS EUGENE WALTEMYER,
Appellant No. 975 EDA 2015
Appeal from the Judgment of Sentence November 18, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000953-2013
BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 08, 2016
Appellant Thomas Eugene Waltemyer appeals the judgment of
sentence entered on November 18, 2014, by the Honorable Jonathan Mark
in the Court of Common Pleas of Monroe County. Following a review of the
record, we affirm.
The trial court aptly detailed the facts and procedural history herein as
follows:
The charges in this case stem from incidents of domestic
violence in which [Appellant] assaulted his wife, Anna
Airepetian.[1] On November 30, 2012, [Appellant] and Ms.
Airepetian were having a dispute via text message where insults
were being hurled at one another. After returning to the house
the couple shared, Ms. Airepetian went to sleep in her son's
bedroom. There, Defendant attacked Ms. Airepetian by grabbing
her hair and repeatedly slamming her head into a wall.
____________________________________________
1
In the record and trial transcripts, the victim’s name is spelled Airapetian.
*Former Justice specially assigned to the Superior Court.
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Defendant continued his attack by choking Ms. Airepetian.
Following this attack, Ms. Airepetian attempted to flee but after
things had briefly calmed down, she returned to the house for
her son.
The next day, while [Appellant] was out hunting, Ms.
Airepetian attempted to gather some items and leave the house.
While she was searching for her cell phone, [Appellant] returned
to the house. The two began arguing in the kitchen, and
[Appellant] placed Ms. Airepetian in a martial arts-style hold and
slammed her to the ground again.
After this second incident, Ms. Airepetian left the house
and went to the Lehighton Barracks of the Pennsylvania State
Police. There, she reported to troopers what had happened, and
the police took pictures of her injuries including bruising around
her neck. [Appellant] came to the police barracks where he was
arrested and charged with Aggravated Assault, Simple Assault,
and Harassment.
After much delay due to defense counsel's involvement in
a long federal criminal proceeding in New Jersey, a jury trial was
convened in this case on August 19, 2014.
Immediately before the trial began, a hearing
("Suppression Hearing") was held on a motion in limine filed by
the Commonwealth and a motion to suppress filed by
[Appellant]. (N.T., 8l19/2014, pp. 2- 1). During this hearing, the
Commonwealth called one of the arresting state troopers, a
defense exhibit was identified, and the attorneys argued their
respective positions. At the conclusion of the hearing, we issued
an order denying [Appellant’s] motion to suppress and grating
[sic] in part and denying in part the Commonwealth's motion in
limine. (Id. at 35-36; Order dated August 19, 2014). We ruled
that [Appellant] would not be allowed to present evidence of
medications that Ms. Airepetian was allegedly taking for
supposed mental health issues purportedly relating to an
abortion. We also barred any mention of the alleged abortion.
(Id. at 30-40; Order dated August 19, 2014). In doing so, we
summarized our reasoning on the record. (Id. at 25-26, 30-34,
and 39-40). We incorporate our on-record statements and
reasoning into this opinion by reference.
After the hearing ended, the trial commenced. On August
21, 2014, the jury found [Appellant] guilty of simple assault and
harassment. The jury was a hung [sic] on the Aggravated
Assault charge. After the verdict was entered, a sentencing
hearing was scheduled and a Pre-Sentence Investigation ("PSI")
report was ordered.
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On November 18, 2014, after a continuance granted at the
request of [Appellant], the sentencing hearing was convened. At
the conclusion of the hearing, [Appellant] was sentenced to one
to two years, less a day, in the Monroe Country Correctional
Facility, a sentence in the standard range.1
At the sentencing hearing, [Appellant] did not contest any
of the information contained in the PSI report, including his
classification as a Repeat Felon for sentencing purposes. (N.T.,
11/18/2014, pp. 3-4 and 22-23), [Appellant] and his attorney
both addressed the Court. In addition, they presented Exhibits,
including evaluations that were performed on [Appellant] in New
York as part of a custody case, which were admitted and
reviewed by the Court before sentence was imposed. In
summary, [Appellant] and his attorney asked the Court for
leniency and a sentence that would deviate below the mitigated
range on the basis that most of [Appellant’s] history that earned
him the Repeat Felon status occurred more than twenty years
ago while he was a young adult. (Id. at 2-15).
The assistant district attorney also addressed the Court
and introduced exhibits. He asked that we adopt the sentence of
eleven and one-half to twenty-three months recommended in
the PSI report, pointing to the facts of the case, the impact on
the victim, and [Appellant’s] Repeat Felon status. (Id. at 15-22).
Thereafter, we informed [Appellant] of the information we
considered and explained our reasons for imposing the sentence
we ordered. We advised [Appellant] that the sentence was based
on the record and file in this case, the facts presented during
trial, the comprehensive PSI report that had been prepared by
our Probation Office, the statements made by [Appellant] his
attorney, and the assistant district attorney during the
sentencing hearing, the exhibits presented at time of sentencing,
and the applicable sentencing laws, rules, and guidelines. We
then stated our reasons on the record. (Id. at 22-29; PSI
Report). We incorporate our on- record statements and
reasoning into this opinion by reference.
On November 20, 2014, [Appellant] filed a post-sentence
motion raising the same issues that he presents in this appeal. A
hearing on the motion was convened on March 30, 2015. At the
conclusion of the hearing, we entered an order denying the
motion. (NT., 3/30/2015, pp. 30-31; Order dated March 30, 2-
15). During the hearing, we articulated our reasons for denying
the motion on the record. In doing so, we referenced and
incorporated the rulings and reasoning we expressed during the
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Suppression Hearing, the trial, and the sentencing hearing.
(N.T., 3/30/2015, pp. 2-3, 11-32; Order dated March 30, 2015).
We incorporate our on-record statements and reasoning into this
Opinion by reference.
_______
1
[Appellant] is a Repeat Felon for sentencing purposes. As a
result, the standard range sentence is one to two years, a state
sentence that is also the statutory maximum. If imposed, this
sentence would have required [Appellant] to serve his time in a
state correctional facility. Since [Appellant] was sentenced to
one year less a day to two years less a day, to be served in a
county correctional facility, the sentence was technically a
mitigated range sentence.
Trial Court opinion, filed 6/2/15, at 1-4.
On April 6, 2015, Appellant filed his notice of appeal, and on that same
date the trial court ordered Appellant to file a concise statement of the
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied and raised therein seven assignments of error.
In his appellate brief, Appellant presents the following two questions
for our review:
A.
Whether the trial court rulings and jury instructions which served
to permit the jury to render a guilty verdict on the offenses
charged in the Information based on uncharged criminal conduct
deprived Appellant of his constitutional rights to not be convicted
for [sic] an offense for which he was not charged, and his
constitutional rights to not be convicted of any offense on a less
than unanimous verdict?
B.
Whether the trial court’s guideline sentence of 12 to 24 months
(less one day) based primarily on Appellant’s criminal history
category of RFEL (repeat felon) which category was based on 24
year old convictions was unreasonable and inappropriate,
especially in light of highly favorable individual factors to which
the court failed to give due weight and consideration?
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Brief for Appellant at 3.
Appellant first maintains the trial court unlawfully amended or allowed
the Commonwealth to unlawfully amend the Criminal Information and erred
in failing to instruct the jury to disregard any evidence related to the incident
that occurred in the couple’s kitchen on December 1, 2012. Appellant
stresses that he does not challenge the validity of the Information but rather
the trial court’s instruction to the jury. He maintains that as the Criminal
Information solely charged him with the “bedroom” assault, the trial court’s
instruction directing the jury to consider the “kitchen” assault as a basis for
finding Appellant guilty deprived him of his due process right to fair trial and
a unanimous verdict on the crimes charged in the information in that it had
effectively added three additional charges to the information. Brief for
Appellant at 6, 10, 20. Appellant states that in viewing this issue as one
which challenges the validity of the Information, the trial court’s analysis in
its Pa.R.A.P. 1925(a) opinion is illustrative of its “utter failure to understand
the issue raised by Appellant at trial and on appeal.” Brief for Appellant at
20-21. Upon our review of the record, we disagree.
In Commonwealth v. Conaway, 105 A.3d 755 (Pa.Super. 2014),
this Court recently reiterated the well-established purpose of an Information
or an Indictment as follows:
The purpose of an [i]nformation or an [i]ndictment is to provide
the accused with sufficient notice to prepare a defense, and to
ensure that he will not be tried twice for the same act.
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Commonwealth v. Ohle, [ ] 470 A.2d 61, 73 (Pa. 1983);
Commonwealth v. Diaz, [ ] 383 A.2d 852 (Pa. 978);
Commonwealth v. Rolinski, [ ] 406 A.2d 763 (Pa. Super.
1979). An [i]ndictment or an [i]nformation is sufficient if it sets
forth the elements of the offense intended to be charged with
sufficient detail that the defendant is apprised of what he must
be prepared to meet, and may plead double jeopardy in a future
prosecution based on the same set of events. Commonwealth
v. Bell, [ ] 516 A.2d 1172, 1177 (Pa. 1986); Commonwealth
v. Ohle, [ ] 470 A.2d 61, 73 (Pa. 1983); Russell v. United
States, 369 U.S. 749[ ] (1962); [s]ee Pa.R.Crim.P. 225(b). This
may be accomplished through use of the words of the statute
itself as long as “those words of themselves fully, directly, and
expressly, without any uncertainty or ambiguity, set forth all the
elements necessary to constitute the offense intended to be
punished.” Hamling v. United States, 418 U.S. 87[ ](1974),
quoting, United States v. Carll, 105 U.S. 611, 612[ ] (
[1881]). Id. at 764, citing Commonwealth v. Alston, 651 A.2d
1092, 1095–96 (Pa. 1994). Moreover, while the information shall
contain “the official or customary citation of the statute and
section thereof ... that the defendant is alleged to have violated
[,] ... the omission of or error in such citation shall not affect the
validity or sufficiency of the information.” Id. at (C).
Id. at 764 citing Commonwealth v. Alston, 651 A.2d 1092, 1095-96 (Pa.
1994).
Herein, the Criminal Complaint provided in pertinent part:
Aggravated Assault
Acts of the accused associated with this Offense:
IN THAT, on or about said date, [APPELLANT] did attempt
to cause or did intentionally, knowingly or recklessly cause
serious bodily injury to his wife (Anna Levonauna AIRAPETIAN)
under circumstances manifesting extreme indifference to the
value of human life, that is to say [APPELLANT] did grab the
victim by the hair and smash her head against a wall causing a
lump behind the right ear. [APPELLANT] then through [sic] the
victim on the ground and was choking her causing her to
temporarily lose [sic] conciousness [sic], in violation of section
2702(a)(1) of the PA Crimes Code.
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***
Simple Assault
Acts of the accused associated with this Offense:
IN THAT, on or about said date, [APPELLANT] did attempt
to cause or did intentionally, knowingly or recklessly cause
serious bodily injury to his wife (Anna Levonauna AIRAPETIAN)
under circumstances manifesting extreme indifference to the
value of human life, that is to say [APPELLANT] did grab the
victim by the hair and smash her head against a wall causing a
lump behind the right ear. [APPELLANT} then through [sic] the
victim on the ground and was choking her causing her to
temporarily lose [sic] conciousness [sic], in violation of section
2701(a)(1) of the PA Crimes Code.
***
Harassment
Acts of the accused associated with this Offense:
IN THAT, on or about said date, [APPELLANT], with intent
to harass, annoy or alarm another person, namely (VICTIM), did
strike, shove kick or otherwise subject such other person to
physical contact, or did attempt or threaten to do the same, in
that [APPELLANT] did grab the victim by the hair and smash her
head against a wall causing a lump behind the right ear.
[APPELLANT] then through [sic] the victim on the ground and
was choking her causing her to temporarily lose conciousness
[sic], in violation of Section 2709(a)(1) of the PA Crimes Code.
Criminal Complaint, 12/1/12, at 3-4.
The Amended Criminal Information was filed on May 28, 2013, and
states:
Count 1
On or about December 1, 2012 in the County of Monroe, Eldred
Township, Pennsylvania, [Appellant] attempted to cause serious
bodily injury to another, or caused such injury intentionally,
knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life, to wit: struck
Anna Airapetian, threw her against a wall, repeatedly struck her
head against a wall and choked her.
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AGGRAVATED ASSAULT
18 Pa.C.S. § 903(A)(1)
F1
Count 2
On or about December 1, 2012 in the County of Monroe, Eldred
Township, Pennsylvnaia,[sic] [Appellant] attempted to cause or
intentionally, knowingly or recklessly caused bodily injury to
another, to wit: struck Anna Airpetian, [sic] threw her against a
wall, repeatedly struck her head against a wall and choked her.
SIMPLE ASSAULT
18 Pa.C.S. § 2701a1
M2
Count 3
On or about December 1, 2012 in the County of Monroe, Eldred
Township, Pennsylvania, [Appellant] with intent to harass, annoy
or alarm another person struck, shoved, kicked or otherwise
subjected said person to physical contact, or attempted or
threatened to do the same, to wit: struck Anna Airpetian, [sic]
threw her against a wall, repeatedly struck her head against a
wall and choked her.
HARASSMENT/STRIKE, SHOVE, KICK, ETC.
18 Pa.C.S. § 2709A1
S
Amended Criminal Information, filed 5/28/13.
In the Criminal Complaint, Appellant was charged with one count
each of the aforementioned crimes for events “on or about” November 30,
2012, and the Criminal Information specifically referred to events “[o]n or
about December 1, 2012,” the date upon which the encounter occurred in
the kitchen. The allegations as set forth therein provided Appellant with
sufficient notice to prepare a defense at trial in that each element of the
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crime was explained and the citations for the charged crimes were listed.
Conaway, supra. Indeed, both the record and Appellant’s appellate brief
are replete with evidence that he was apprised of the charges he needed to
defend at trial.
From the outset of the case, the Commonwealth represented that
Appellant’s charges arose following events that occurred on the evening of
November 30, 2012 and on the morning of December 1, 2012. A review of
the transcripts from the preliminary hearing held on April 15, 2013, reveals
Appellant never objected to Ms. Airapetian’s testimony concerning the
December 1, 2012, confrontation. To the contrary, defense counsel
repeatedly referenced the assaults in terms of two incidents and even asked
Ms. Airapetian to clarify that her testimony described two, separate
incidents. N.T., 4/15/13, at 12, 14. Similarly, while he filed an omnibus
pretrial motion on January 22, 2014, Appellant challenged therein only
certain incriminating statements, not any anticipated reference to two,
separate incidents at trial. He also never averred such testimony would
result in an unlawful amendment to the Information in violation of his
federal or state constitutional due process rights.
Moreover, in his appellate brief Appellant explains that as is evident in
his opening statement and closing argument at trial, his theory of the case
was that Ms. Airapetian was emotionally unstable during the time which
preceded “the incidents” on November 30, 2012, and December 1, 2012,
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and it was that instability which provoked the “confrontations” on those
dates. In this regard, he specifically states that the contact between Ms.
Airapetian and him on December 1, 2012, was the result of his attempting to
restrain her when she attacked him with a meat tenderizer. Brief for
Appellant at 5-6. Furthermore, Appellant acknowledges that he asked the
trial court to provide the jury with a self-defense instruction for the assault
in the kitchen on December 1, 2012. Brief for Appellant at 9 citing N.T.,
8/21/14, at 2-8.
Furthermore, at trial Appellant vigorously cross-examined Ms.
Airapetian regarding both encounters, presented his own testimony and that
of other witnesses concerning both assaults, and introduced a physical
exhibit related to the kitchen assault- a meat tenderizer. It was not until
both sides had rested that Appellant raised a constitutional challenge to the
trial court’s jury instruction. In fact, he acknowledges in his brief that
“following the close of evidence defense counsel requested the court prohibit
the Commonwealth attorney from arguing the facts of the second incident . .
. .” Brief for Appellant at 15-16.
This Court is hard pressed to discern how Appellant can both admit
that it was he who requested that the trial court provide a self-defense
instruction for the December 1, 2012, confrontation in the kitchen (which
the trial court accordingly supplied) and at the same time challenge that
instruction as creating an illegal amendment of the Information in violation
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of his right to due process. It appears that it is Appellant who has
misconstrued the essence of the first claim he has presented for this Court’s
review, for in arguing it is not one of notice, he ignores that this is precisely
the purpose a criminal information serves. Clearly, from the outset of the
matter the two confrontations were treated as part of the same incident that
led to the three counts initially brought against Appellant; thus, he was
apprised of and vigorously defended his actions on November 30-December
1, 2012, which led to those charges.2 Accordingly, we find that Appellant
was provided with sufficient notice to prepare a defense to the crimes of
aggravated assault, simple assault and harassment; therefore, his first issue
is meritless.
Appellant’s second claim presents a challenge to the discretionary
aspects of his sentence, and one’s right to appeal the discretionary aspects
of his sentence is not absolute. See Commonwealth v. McAfee, 849 A.2d
270, 274 (Pa.Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004). To
reach the merits of a discretionary issue, this Court must 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
____________________________________________
2
It is noteworthy that the jury was hung as to the most serious charge of
aggravated assault.
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appealed from is not appropriate under the Sentencing
Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super. 2011)
(footnotes and citation omitted).
Herein, Appellant filed a timely notice of appeal as well as a timely
post-sentence motion and has included the requisite Statement of Reasons
for Allowance of Appeal from Discretionary Aspects of Sentence pursuant to
Rule 2119(f) in his appellate brief. Brief for Appellant at 21-23. Therefore,
he is in technical compliance with the requirements to challenge the
discretionary aspects of his sentence, and we may proceed to determine
whether he has presented a substantial question that his sentence is not
appropriate under the Sentencing Code. Commonwealth v. Edwards, 71
A.3d 323, 330 (Pa.Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013).
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 which underlie the
sentencing process. We determine whether a particular case
raises a substantial question on a case-by-case basis.
Additionally, we cannot look beyond the statement of questions
presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.
Commonwealth v. Christine, 78 A.3d 1, 10-11 (Pa.Super. 2013) (internal
quotations and citations omitted).
Herein, in both his “Motion for Post Verdict Relief and/or for
Reconsideration of Sentence” and in his “Statement of Matters Complained
of on Appeal Pursuant to Pa.R.A.P. 1925(B)” Appellant argues simply that:
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Considering the characteristics of the Appellant and the
circumstances of the Appellant’s conduct in this matter, the
Court’s sentence is excessive as a matter of law and fact and
imposed a punishment significantly greater than necessary to
accomplish the purposes of sentencing.
See Motion for Post Verdict Relief and/or for Reconsideration of Sentence at
4; Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P.
1925(B) at ¶ 5.
In his Rule 2119(f) statement, Appellant contends that his sentence,
which had been within the range of that allowable under the Sentencing
Guidelines, was unreasonable and inappropriate because it did not
sufficiently consider Appellant’s prior criminal record and personal situation;
he was characterized as a repeat felon based upon offenses he had
committed twenty-four years earlier when he was eighteen years old, a
misdemeanor assault in 1990, and tattooing a minor (M-3) in 1997).
Appellant further avers “the guideline range greatly overstated the
significance of [Appellant’s] criminal history-so much so that the Presentence
Report recommended sentencing in the mitigated range.” Brief for Appellant
at 22-23.
This Court has repeatedly held that allegations the trial court failed to
consider particular circumstances or factors in an appellant's case do not
raise a substantial question as they go to the weight accorded to various
sentencing factors. Commonwealth v. Griffin, 65 A.3d 932, 936
(Pa.Super. 2013); accord Commonwealth v. Cannon, 954 A.2d 1222,
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1228–1229 (Pa.Super. 2008). In addition, this Court has held that an
argument that the trial court failed to consider certain mitigating factors in
favor of a lesser sentence does not present a substantial question
appropriate for our review. Commonwealth v. Ratushny, 17 A.3d 1269,
1273 (Pa.Super. 2011); accord Commonwealth v. Moury, 992 A.2d 162,
171 (Pa.Super. 2010). Furthermore, Appellant does not set forth the
specific provision of the Sentencing Code or the fundamental norm
underlying the sentencing process the trial court allegedly violated.
Consequently, Appellant does not appear to have raised a substantial
question for our review. See Christine, supra (compare Commonwealth
v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003)(finding a contention
that a trial court misconstrued a prior record score raises a substantial
question)).
Assuming, arguendo, Appellant has presented a substantial question
warranting our review, he would not be entitled to relief. Despite the
recommendations set forth in the Sentencing Guidelines, trial courts retain
broad discretion in sentencing matters and may sentence a defendant
outside of those Guidelines. “The only line that a sentence may not cross is
the statutory maximum sentence.” Commonwealth v. Yuhasz, 923 A.2d
1111, 1119 (Pa. 2007) (citation omitted). In addition, the trial court had the
benefit of a presentence investigation report herein, and in such cases, this
Court has stated that “we can assume the sentencing court was aware of
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relevant information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.” Moury, supra at
171.
The trial court handed down a sentence within the standard range of
the sentencing guidelines and in doing so fully and adequately set forth the
reasons for its sentence. See N.T., 11/18/14, at 22-29; N.T., 3/30/15, at
24-27; Trial Court Opinion, filed 6/9/15 at 13-20. Thus, even were we to
reach the merits of the issue, we would find the trial court did not abuse its
discretion. See Commonwealth v. Austin, 66 A.3d 798, 809-10
(Pa.Super. 2013). For the foregoing reasons and after a careful review of
the entire record, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2016
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