J-A05041-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD COLEMAN :
:
Appellant : No. 230 EDA 2020
Appeal from the Judgment of Sentence Entered December 3, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009254-2017
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: Filed: May 6, 2021
Appellant, Ronald Coleman, appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County, which sat as
finder of fact in Appellant’s bench trial and found him guilty of Rape—Forcible
Compulsion, Involuntary Deviate Sexual Intercourse—Forcible Compulsion,
Sexual Assault, Indecent Assault—Forcible Compulsion, and Simple Assault.1
Of the four issues Appellant raised in his counseled Pa.R.A.P. 1925(b)
statement, he briefs only his challenge to the discretionary aspects of his
sentence. After careful review, we affirm.
The trial court aptly sets forth the pertinent facts and procedural history
of the case, as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A §§ 3121(a)(1), 3123(a)(1), 3124.1, 3126(a)(2), and 2701(a),
respectively.
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On September 20, 2017, [H.F., the Complainant] left the South
Philadelphia Library on 1700 South Broad Street to look for his
library card. N.T. 7/1/19, at 8-9, 11, 43. After several minutes,
H.F. could not find the library card and decided to walk home. Id.
at 11. As H.F. walked home, he was approached by Appellant.
Id. at 10-11. H.F. testified that he had never met Appellant
before that day. Id. at 13. Appellant asked H.F. “what are you
trying to get into” and invited him to drink and smoke in the
DiSilvestro Playground recreation center, located at 1701 South
Fifteenth Street adjacent to the library. Id. at 12-13, 51, 76.
H.F. followed Appellant into a room with a microwave and tables.
Id. at 14. Appellant told H.F. to “pull [his] pants down, “a
command that H.F. obeyed. Id. at 16. H.F. testified that he was
so scared that he was “shaking” and that he complied with
Appellant’s command because he was “scared.” Id. Immediately
thereafter, Appellant pushed H.F. to the ground and pulled his own
pants down. Appellant held H.F. by his feet and anally penetrated
him. Id. at 16. During the incident H.F. defecated himself. Id.
at 37. H.F. cried and told Appellant he wanted to go home.
Despite H.F.’s pleas, Appellant threatened to put his penis in H.F.’s
mouth if he did not stop kicking and crying. Id. at 15-16. H.F.
testified that Appellant told him “somebody showed him how to
do this in jail.” Id. at 16.
When the incident was over, H.F. got up, ran through the back
door, and went home. Id. at 19. H.F. arrived home and fainted
at the door. Id. at 43. When he awoke, H.F told his parents that
he had been raped at the library.fn Id. at 44. H.F. and his parents
immediately went back to the library and recreation center. Id.
at 44, 50-51. H.F. took his father to the room where the incident
occurred, and his father called police. Id. at 45. Officers arrived
and transported H.F. and his mother to the Special Victims Unit,
where he was shown a photo array and identified Appellant as his
assailant. Id. at 20-21, 58. H.F. was also taken to the sexual
assault response center where he received a sexual assault exam
and a sexual assault kit. Id. at 84.
FN. H.F.’s father . . . testified that his son has special
needs. N.T. 7/1/16 at 41. [He] stated that his son has a
learning disability, which required him to attend[] special
classes and participate in an Individualized Education
Program (“I.E.P.”) when he was in school. His son still lives
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at home and does not have a job due to his disability. Id.
at 41. During cross-examination, [Father] testified that his
son does not function well enough to do things in the
community by himself. Id. at 51. His son does not interact
much with other people or have good judgment and
reasoning. Id. at 52.
At trial, . . . Appellant’s supervisor at the time of the underlying
incident[] testified that Appellant was employed by the DiSilvestro
Playground recreation center as the maintenance person. Id. at
76. [He] testified that on September 20, 2017, the day of the
alleged incident, the recreation center’s security cameras were
inoperative and had been inoperative for two weeks. Id. at 77-
78. [He] testified that Appellant was aware that the cameras were
not able to be fixed that day, as the technician called him from
Appellant’s phone to let him know “they had to get a part and they
were going to come about either the next day or the next few
days.” Id. at 82-83. During the same conversation, [he] told
Appellant that he probably would not be in until after Appellant’s
shift, around 3:00 p.m.
...
On September 21, 2017, a search warrant was executed on
Appellant’s residence. . . . The detectives recovered articles of
clothing and attempted to locate Appellant, but he was not home.
Id. at 99-100. [Detectives] received information that Appellant
was located across the street in a neighbor’s residence . . . [and]
then received permission from the neighbor to enter the home and
arrest Appellant. Id. at 102.
...
On July 1, 2019, following a [bench trial], Appellant was found
guilty of [the offenses cited above]. On December 3, 2019,
Appellant was sentenced to an aggregate term of eight to sixteen
years of incarceration, followed by a consecutive term of four
years of reporting probation. On December 12, 2019, Appellant
filed a Motion for an Extension of Time to File a Post-sentence
Motion, which [the trial court] granted on December 13, 2019.
[However, Appellant ultimately did not file any post-sentence
motion.] On December 30, 2019, Appellant filed a timely Notice
of Appeal, and [the trial] court ordered Appellant to file a
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Statement of Errors Complained of on January 7, 2020. On
February 9, 2020, Appellant filed a Statement of Errors, raising
[four issues, including the following]:
[Appellant’s] sentence was an abuse of discretion as he
was sentenced by the court to 8 to 16 years followed by a
4-year probation tail for Rape (F1) on the above-captioned
matter when the court failed to thoroughly consider
petitioner’s background, his ability for rehabilitation, his
social history, rehabilitative needs, and mental health
capacity.
TCO, 717/2020, at 2-4, 1-2.
As noted, Appellant’s brief presents one argument for this Court’s
consideration, namely, whether his standard range guideline sentence
reflected the trial court’s abuse of sentencing discretion. Our standard of
review for a challenge to the discretionary aspects of sentencing is well-
settled:
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. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted).
“[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits
of such claims, we must determine:
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whether the appeal is timely; (2) whether [the a]ppellant
preserved his issues; (3) whether [the a]ppellant's brief includes
a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is inappropriate under the [S]entencing [C]ode.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation
omitted).
“To preserve an attack on the discretionary aspects of sentence, an
appellant must raise his issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted).
Where a sentence is imposed within the guidelines, we may only reverse
the trial court if we find that the circumstances of the case rendered the
application of the guidelines “clearly unreasonable.” 42 Pa.C.S.A. §
9781(c)(2). Our review of the reasonableness is based upon the factors
contained in 42 Pa.C.S.A. § 9781(d), and the trial court's consideration of the
general sentencing standards contained in 42 Pa.C.S.A. § 9721(b). See
Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013). However,
“[w]e cannot re-weigh the sentencing factors and impose our judgment in the
place of the sentencing court.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa. Super. 2009) (citation omitted).
Here, Appellant filed a timely Notice of Appeal and included in his
appellate brief a separate Rule 2119(f) Statement. Our review of the record,
however, discloses that Appellant failed to preserve his claim either at
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resentencing or in a timely post-sentence motion. See Commonwealth v.
Mann, 820 A.2d 788, 794 (Pa. Super. 2003) (holding that objections to the
discretionary aspects of sentence are generally waived if they are not raised
at the sentencing hearing or in a motion to modify the sentence imposed at
that hearing). Thus, we are unable to address his issue on appeal.2
Judgment of sentence affirmed.
____________________________________________
2 Even if Appellant had preserved his issue and presented therein a substantial
question meriting our review, we would find his issue affords him no relief, as
the sentencing transcript shows the trial court had the benefit of a pre-
sentence investigation report (“PSI”). N.T. 9/3/19, at 3, 4, 14. See
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
(holding that, where a sentencing court is informed by a PSI, “it is presumed
that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.”).
Moreover, Appellant’s claim that the court failed to consider Appellant’s
rehabilitative needs, mental health issues, and other mitigating factors is
belied by the record. The transcript of Appellant’s sentencing hearing shows
the court invited testimony regarding Appellant’s mental health conditions,
which including ADHD, drug addiction, and bipolar disorder, as well as other
mitigating factors as attested to by his aunt, who spoke to both the negative
effect the 1997 death of Appellant’s grandmother had on him and the allegedly
good parenting skills he demonstrated with his two-year old child. In imposing
the standard guideline range sentence, the court noted its familiarity with all
presentencing reports, acknowledged Appellant’s family’s statements, and
ordered that he continue to receive treatment for his mental health and drug
abuse needs in prison. Nonetheless, the severe and calculated nature of
Appellant’s crime, where he took advantage of a clearly vulnerable victim and
brought him to his unoccupied place of work on a day he knew the surveillance
cameras were inoperable, impressed the court that a standard range guideline
sentence was appropriate. N.T. at 4-14. Finding nothing “clearly
unreasonable” about this sentence under the totality of circumstances, see
42 Pa.C.S.A. § 9781(c)(2), we would affirm judgment of sentence on this basis
had Appellant preserved the issue for review.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/21
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