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06/09/97 COMMONWEALTH PENNSYLVANIA v. EDWARD COSS

June 9, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
EDWARD COSS, JR., APPELLANT



Appeal from the JUDGMENT OF SENTENCE June 11, 1996. In the Court of Common Pleas of LACKAWANNA County, CRIMINAL, No. NO. 89-CR-1371. Before MUNLEY, J.

Before: Mcewen, P.j., Schiller, Olszewski, J.j. Opinion BY Schiller

The opinion of the court was delivered by: Schiller

SCHILLER

OPINION BY: SCHILLER, J.

Filed June 9, 1997

Appellant, Edward Coss, Jr., appeals from the judgment of sentence entered by the Court of Common Pleas of Lackawanna County following his conviction of one count each of aggravated assault *fn1 and simple assault. *fn2 We affirm.

FACTS:

On September 11, 1990, following a jury trial, appellant was convicted of the crimes described above. These crimes stem from the beating of Peter Petrovich on August 30, 1989, by a group of five or six men, including appellant. After a trial by jury and his conviction, appellant was sentenced to a term of imprisonment of six to twelve years on the aggravated assault conviction, which was within the standard range of the Pennsylvania Sentencing Guidelines. *fn3 On direct appeal, this Court vacated the sentence because it was not clear that the presentence report was accurate; concurrently, we remanded the case for resentencing. Commonwealth v. Edward Coss, Jr. 449 Pa. Super. 718, 674 A.2d 313 (Memorandum decision, 1995). Prior to resentencing, appellant challenged the determination of his prior record and offense gravity scores. The trial court determined that the offense gravity score for the aggravated assault conviction would remain the same at 9, using the sentencing guidelines in effect at the time appellant committed this crime, but reduced the prior record score from 3 to 2, agreeing with appellant that his three prior misdemeanors convictions all arose from the same action, and did not count separately against his prior record, pursuant to 204 Pa.Code 303.7(b), 42 Pa.C.S. § 9721. Thereafter, the trial court resentenced appellant to the same sentence, i.e. six to twelve years imprisonment; this was still within the standard range of the sentencing guidelines. This appeal followed.

Discussion

Appellant now raises several issues concerning the correctness of his sentence: (1) whether the trial court abused its discretion in sentencing appellant to six to twelve years imprisonment; (2) whether the trial court failed to state on the record its reasons for the sentence and for total confinement; (3) score; and (4) whether the trial court erred in computing the prior record score.

Regarding his first issue, appellant does not have an appeal as of right from the discretionary aspects of his sentence. 42 Pa.C.S. § 9781(b); Commonwealth v. Scullin, 414 Pa. Super. 442, 446-447, 607 A.2d 750, 752 (1992), alloc. denied 533 Pa. 633, 621 A.2d 579 (1992). Two requirements must be met before appellant's challenge to the judgment of sentence will be heard on the merits. Commonwealth v. Koren, 435 Pa. Super. 499, 503, 646 A.2d 1205, 1207 (1994). First appellant must "set forth in his brief a concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence." Pa.R.A.P. 2119(f), Id. Second, the appellant must show "that there is a substantial question that the sentence imposed is not appropriate under this chapter." 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 513, 522 A.2d 17, 20 (1987), Commonwealth v. Urrutia, 439 Pa. Super. 227, 236, 653 A.2d 706, 710, alloc. denied 541 Pa. 625, 661 A.2d 873 (1995). This Court has held that a claim of excessiveness of sentence does not raise a substantial question where the sentence is within the statutory limits. Commonwealth v. Jones, 418 Pa. Super. 93, 106, 613 A.2d 587, 593 (1992), alloc. denied 535 Pa. 516, 629 A.2d 1377 (1993) (en banc).

We note that appellant has set forth in his brief a concise statement pursuant to Pa.R.A.P. 2119(f). However, appellant has not raised a substantial question that the sentence imposed was inappropriate, because the sentence imposed was within the statutory recommendation. The guidelines in effect at the time appellant was convicted suggested a minimum sentence of 48-72 months where the offense gravity score is 9 and the prior record score is 2. Appellant was sentenced to 72-144 months, which, as appellant acknowledges, was within the applicable range. Appellant argues that the trial court abused its discretion by sentencing him to the highest sentence possible under the standard range. Such an argument does not raise a substantial question under Commonwealth v. Tuladziecki, (supra) , and therefore appellant's argument is not cognizable.

Appellant's next issue is that the trial court failed to adequately explain its reasons on the record for the sentence and for the imposition of total confinement. This issue is reviewable:

Although a claim that the trial court failed to provide reasons for its sentence technically involves the discretionary aspects of sentencing, see Commonwealth v. Smicklo, 375 Pa. Super. 448, 544 A.2d 1005 (1988) (en banc), the trial court has no discretion in determining whether or not to place such reasons on the record. Rather, the Sentencing Code provides, in pertinent part, that "in every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and ...


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