J-S78044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                      Appellee              :
                                            :
               v.                           :
                                            :
KIENAN WADE KENNEDY,                        :
                                            :
                      Appellant             :          No. 428 MDA 2014

     Appeal from the Judgment of Sentence entered on September 27, 2013
               in the Court of Common Pleas of Lebanon County,
                 Criminal Division, No. CP-38-CR-0001235-2012

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED FEBRUARY 23, 2015

         Kienan Wade Kennedy (“Kennedy”) appeals from the judgment of

sentence entered following his conviction of rape, indecent assault and

endangering the welfare of a child.1 We affirm.

         In its Opinion, the trial court summarized the relevant history

underlying the instant appeal, which we incorporate herein by reference.

See Trial Court Opinion, 4/29/14, at 2-4.

         Briefly, on September 12, 2012, the Commonwealth charged Kennedy

with one count each of rape of a child, indecent assault, endangering the

welfare of children and corruption of minors.2 On December 19, 2012, the

date scheduled for a hearing on Kennedy’s Omnibus Pretrial Motion, the

Commonwealth offered a plea deal whereby Kennedy would plead guilty to

1
    18 Pa.C.S.A. §§ 3121, 3126, 4304.

2
    18 Pa.C.S.A. §§ 3121, 3126, 4304, 6301.
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one count each of rape of a child, indecent assault and endangering the

welfare of children, and receive a sentence of 10 to 20 years in prison. The

Commonwealth represented that the plea deal was available only that day.

Kennedy accepted the Commonwealth’s offer, tendering a guilty plea on that

date.

        On March 12, 2013, prior to sentencing, Kennedy filed a Petition to

Withdraw Guilty Plea. Kennedy asserted that he was innocent and wished to

proceed to trial. The trial court issued a Rule to Show Cause why Kennedy’s

Petition should not be granted. The Commonwealth filed a response, stating

that it suffer substantial prejudice should the matter proceed to trial. After a

hearing, the trial court denied Kennedy’s Petition. On September 27, 2013,

the trial court sentenced Kennedy to 10 to twenty years in prison. Kennedy

filed a post-sentence Motion to withdraw his guilty plea.       The trial court

denied Kennedy’s Motion, after which Kennedy timely filed a Notice of

Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement.

        Kennedy now presents the following claims for our review:

          I.     Did the [trial c]ourt err in denying [Kennedy’s] request
                to withdraw his guilty plea where the request was made
                prior to the imposition of sentence, [Kennedy] presented
                a fair and just reason for the withdrawal of the plea, and
                the Commonwealth would not have been substantially
                prejudiced by the withdrawal?

          II.   Was [Kennedy’s] guilty plea not knowingly, intelligently,
                and voluntarily entered where [Kennedy] was not given
                sufficient time to consider the amended plea that was
                offered on December 19, 2012, and the Commonwealth
                placed excessive pressure to induce [Kennedy] into


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              pleading guilty by threatening to withdraw the amended
              plea [offer] if [Kennedy] did not both withdraw his
              pretrial motion and plead guilty to the amended plea on
              December 19, 2012?

Brief for Appellant at 4.

      Kennedy first claims that the trial court improperly denied his Petition

to withdraw his guilty plea. Id. at 10. In support, Kennedy argues that (a)

his claim of innocence constituted a fair and just reason to support

withdrawal of the plea; and (b) the Commonwealth’s desire to shield the

victim “from the emotional discomfort of testifying at a trial was is not

substantial prejudice.”     Id. at 11-12.   Kennedy points out that the victim

testified at the preliminary hearing, and was subject to cross-examination.

Id. at 12. Kennedy further contends that the difficulty in transporting the

victim from New York to Pennsylvania existed prior to his guilty plea.     Id.

Therefore, Kennedy argues that the withdrawal of his guilty plea would place

the Commonwealth in the same position as it was prior to his plea. Id.

      As this Court has recognized, “[a]t any time before the imposition of

sentence, the court may, in its discretion, permit, upon motion of the

defendant, or direct sua sponte, the withdrawal of a plea of guilty … and the

substitution of a plea of not guilty.” Commonwealth v. Prendes, 97 A.3d

337, 354 (Pa. Super. 2014) (citations omitted).         “Although there is no

absolute right to withdraw a guilty plea, properly received by the trial court,

it is clear that a request made [b]efore sentencing ... should be liberally

allowed.” Id. at 351 (citation omitted). In his Petition to Withdraw Guilty


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Plea, Kennedy asserted that he is innocent of the charges.           Petition to

Withdraw Guilty Plea, 3/12/13, at ¶ 3. This Court has recognized that “the

mere articulation of innocence [is] ‘a fair and just’ reason for the pre-

sentence withdrawal of a guilty plea[,] unless the Commonwealth has

demonstrated that it would be substantially prejudiced.”      Commonwealth

v. Katonka, 33 A.3d 44, 46 (Pa. Super. 2011) (en banc).            An abuse of

discretion exists when a defendant has shown a “fair and just” reason for

withdrawing his plea, absent “substantial prejudice” to the Commonwealth.

Commonwealth v. Elia, 83 A.3d 254, 261 (Pa. Super. 2013).

        In its Opinion, the trial court credited the Commonwealth’s evidence of

the substantial prejudice it would suffer should Kennedy withdraw his guilty

plea.    Trial Court Opinion, 4/29/14, at 5.    The record supports the trial

court’s findings, and its legal conclusions are sound. Accordingly, we affirm

on the basis of the trial court’s Opinion with regard to Kennedy’s claim. See

id. at 4-5. We additionally observe the following.

        At the hearing on Kennedy’s Petition, Elizabeth Siracuse (“Ms.

Siracuse”), the victim’s clinical social worker, testified by telephone as to the

victim’s response to questioning about the incidents involving Kennedy.

N.T., 5/15/13, at 9-10. Of particular note, Ms. Siracuse testified as to the

victim’s regression during treatment, when asked about the incidents:

        So, as I am sitting across from [the victim], I said to her, of
        course [the trial court is] going to want to know what happened.
        Can you go back and share what happened?



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           [The victim] started to share—you could see her eyes were
     vacant and she started to speak in a more robotic fashion. I
     asked her about before [the incidents]. Did she feel comfortable
     with [Kennedy]? And she did not answer. Then she talked
     about the transition.

           As she did so, you just saw here withdraw into herself.
     She talked about the first time he was inappropriate. A big tear
     came from her eye. That would be the end of her being able to
     talk about this. She pushed back in her seat and she looked
     down. She was disconnected. She started quietly to cry. I
     reminded her [that] she was safe and that I was with her and he
     couldn’t harm her. I was reassuring her. Clearly she was not
     with me then.

          She just began to sob uncontrollably. I knew her mom
     was in the building for a meeting elsewhere. I decided it was
     important for her mom to be here.

           I called the caseworker who got the mom. The mom came
     upstairs. [The victim] was sobbing. Her mom came upstairs
     and came into the room and sat in the seat….

           [The victim] was 13 and … crawled into her mother’s arms
     like a baby and put her head in her mom’s neck, wrapped her
     arms around her and sobbed like a small child. Her mom just
     told her [sic] and said it was going to be okay.

          That is how our session ended….        The following week, I
     met with [the victim] again.

           She came in. She was resilient [sic]—very upset, not
     going to do it. I decided that I didn’t think it was clinically safe
     for me to broach her history at that point. I think she needed
     space and distance to feel she had permission to say no.

           I was told[,] in reading the records that came from both
     Pennsylvania and here [in New York State, that] this is
     something that went on for probably half of the child’s life. This
     started when she was five or six. She was told when it finally
     was stopped and the police were brought in. More than half of
     this child’s life she was victimized and made to do things that are
     unspeakable.



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             It’s my feeling as a clinical social worker that forcing her to
      testify at this moment would not be in her best interest, and
      could actually really be to her detriment.

Id. at 9-11.   When asked if she thought that the victim would be able to

verbalize in court what had taken place, Ms. Siracuse responded as follows:

      No. I absolutely don’t. If [the victim] could not do that in my
      office with a therapist she very much likes and feels safe with
      and enjoys and trusts, if she could not do that there, I don’t see
      how she’s going to be able to do that in a courtroom facing her
      perpetrator. I don’t think she has the coping skills right now.

            I think I’m watching her regress as a further
      regression. I don’t think she can do what you need her to do
      right now.

Id. at 11-12 (emphasis added).

      For the reasons stated by the trial court, and supported by the

Commonwealth’s witnesses at the hearing, including the testimony of Ms.

Siracuse, we discern no abuse of discretion by the trial court in denying

Kennedy’s Petition to Withdraw his guilty plea. Accordingly, we cannot grant

Kennedy relief on his first claim.

      In his second claim, Kennedy asserts that the trial court improperly

denied his post-sentence Motion to withdraw his guilty plea.            Brief for

Appellant at 13.    Kennedy claims that his guilty plea was not voluntarily

entered, “because he was placed under excessive pressure when the

Commonwealth would not give him sufficient time to consider an amended

plea.” Id.




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      In its Opinion, the trial court addressed Kennedy’s claim and concluded

that it is without merit. See Trial Court Opinion, 4/29/14, at 5-6. We agree

with the sound reasoning of the trial court, as set forth in its Opinion, and

affirm on this basis. See id.

      Judgment of Sentence affirmed.

      Gantman, P.J., joins the memorandum.

      Jenkins, J., files a concurring and dissenting statement.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2015




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                       IN THE COURT OF COMMON PLEAS
                      OF LEBANON COUNTY, PENNSYLVANIA

                                      CRIMINAL DIVISION


COMMONWEALTH OF
PENNSYLVANIA

        v.                                                          No. CP-38-CR-1235-2012

KIENAN KENNEDY,
Defendant


OPINION BY JONES, JR., J.:
        Defendant has appealed this Court's Order of February 6, 2014 denying his
Post-Sentence Motions.

FACTUAL AND PROCEDURAL HISTORY
        On September 12, 2012, a criminal information was filed against Kienan
Kennedy (hereinafter "Defendant") charging him with one (1) count of Rape of a
Child (F1), one (1) count of Indecent Assault, one (1) count of Endangering the
Welfare of Children (F3) and one count of Corruption of Minors (F3).1 On August
30, 2012, a preliminary hearing was held and the charges were bound over. On
August 30,2012, the minor victim2 (hereinafter "D.N.") was present and testified at
the preliminary hearing. On November 16, 2012, Defendant filed an Omnibus
Pretrial Motion to Suppress Evidence.                      A pretrial hearing was scheduled for
December 19,2012.



I Count 1 18 Pa.C.S.A. § 3121(c); Count 2 18 Pa.C.S.A. §3126(a)(7); Count 3 18 Pa.C.S.A. §4304(a)(I); Count 4 18
Pa.C.S.A. 6301(a)(1)(ii)
2 Minor victim was twelve (12) years of age when the offenses occurred.


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          When Defendant arrived for the pretrial hearing, the Commonwealth offered
him an amended plea of ten (10) years to twenty (20) years in a state correctional
facility. To accept the plea, Defendant had to withdraw his pretrial motion and plead
guilty on December 19,2012. The Commonwealth told the Defendant and the Court
that the offer was only good for that day. The Court recessed so that Defendant
could confer with counsel. Defendant pleaded guilty on December 19,2012.
           On March 12, 2013, Defendant filed a Motion to Withdraw Guilty Plea. On
March 19, 2013, the Commonwealth filed a response arguing that the Motion should
be denied because D.N. was in foster care in the State of New York, and the
Commonwealth was unable to force the State of New York to transport D.N. to
Pennsylvania for trial. 3 On May 15,2013, a hearing was held before this Court on
Defendant's Motion to Withdraw Guilty Plea.                              The Commonwealth presented
testimony via telephone from Elizabeth Siracuse, D.N. 's psychotherapist, and
Debbie Thomas, a representative from D.N.'s foster care agency.                                  Following the
hearing, the Court denied Defendant's Motion to Withdraw Guilty Plea.
           On September 27, 2013, a Megan's Law hearing was held where the Court
found Defendant should be classified as a sexually violent predator. Immediately
following the hearing, Defendant was sentenced to ten (10) years to twenty (20)
years in a state correctional institution. On October 7, 2013, Defendant filed a timely
Post-Sentence Motion.                 Both parties filed briefs in support of their respective
positions. On February 6, 2014, Defendant's Post-Sentence Motion was denied by
this Court.
           Defendant appealed to the Superior Court on March 3, 2014. On March 24,
2014, Defendant filed a Concise Statement of Matters Complained of on Appeal
pursuant to Pa. R.A.P. 1925(b). Defendant alleges that: (1) this Court erred in


3   D.N. was thirteen (13) years old at the time of the Hearing on Defendant's Motion to Withdraw Guilty Plea.

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denying Defendant's request to withdraw his guilty plea and (2) Defendant's guilty
plea was not knowingly, intelligently, and voluntarily entered.


DISCUSSION
      "Prior to the imposition of sentence, a defendant should be permitted to
withdraw his plea 'for any fair and just reason.'" Commonwealth v. Kirsch, 930
A.2d 1282, 1284-85 (Pa.Super. 2007), citing Commonwealth v. Forbes, 450 Pa.
185, 191 (1973); see also Pa. R. Crim. P. 591 (A). A fair and just reason would
entitle a defendant to withdraw a plea of guilty unless substantial prejudice would
inure to the Commonwealth upon the granting of the motion. Kirsch, 930 A.2d at
1285; Forbes, 450 Pa. at 191. Prejudice requires a showing that due to events
occurring after the plea was entered, the Commonwealth is placed in a worse
position than it would have been had trial taken place as scheduled. Commonwealth
v. Carrasquilla, 78 A.3d 1120, 1129 (Pa. Super. 2013), citing Kirsch, 930 A.2d at
1286. "Thus, prejudice is about the Commonwealth's ability to try its case, not about
the personal inconvenience to complainants unless that inconvenience somehow
impairs the Commonwealth's prosecution." Commonwealth v. Gordy, 73 A.3d
620, 624 (Pa.Super. 2013).
       When Defendant requested to withdraw his guilty plea on March 12, 2013,
the victim was in foster care and undergoing weekly counseling under the care of
the New York Social Services. On May 15,2013, a hearing was held on Defendant's
request to withdraw his guilty plea. At that time, the Commonwealth asserted that
it would be highly unlikely that they would be able to have the victim present at trial.
IfD.N. was returned to her mother's care, the Commonwealth would need to rely on
the mother to transport the minor child. The Commonwealth stated that given the
mother's past behaviors, this would be problematic. IfD.N. remained in foster care,
New York Social Services would not commit to transporting D.N. to Lebanon
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County for a trial. If the Social Services believed appearing at the trial would cause
D.N. harm, they had a responsibility not to subject her to that.
           Commonwealth presented evidence through the testimony of Ms. Siracuse
and Ms. Thomas. 4 Ms. Siracuse testified that, as D.N.'s psychotherapist, she had
been seeing the victim on a weekly basis since December of 2013, following the
Defendant's guilty plea. When Ms. Siracuse learned D.N. may have to testify at a
trial, she spoke to D.N. at one of their sessions. Ms. Siracuse testified that in her
opinion, she was not positive that D.N. could make it through a trial. When Ms.
Siracuse brought up the subject with D.N., D.N. became withdrawn and had a vacant
look in her eyes. (N.T. at 8). She also began sobbing. Ms. Siracuse testified that,
in her opinion, forcing D.N. to testify would not be in her best interest, and would
likely be to her detriment. Ms. Siracuse testified that D.N. was a long way from
being emotionally stable enough to handle the burden of the trial.
           The Court put great weigh to the Commonwealth's argument that the victim
could not be made available for trial. The Court found that the Commonwealth
would suffer substantial prejudice if the Defendant was allowed to withdraw his
guilty plea.           Therefore, the Court did not abuse its discretion when it denied
Defendant's Motion to Withdraw Guilty Plea.
           Defendant also alleges that his guilty plea was not knowingly, intelligently,
and voluntarily entered because he was not given sufficient time to consider the
amended plea and that the Commonwealth placed excessive pressure on Defendant
to induce him to accept the amended plea. Defendant alleges that Commonwealth
placed undue pressure on him by threatening to withdraw the plea if Defendant did
not withdraw his pretrial motion and plead guilty that same day. We do not find
Defendant's argument to be credible.


4   Both witnesses testified via telephone.

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      The Commonwealth presented the amended plea to Defendant's counsel
around lunchtime the day of the pretrial hearing.              Defendant's counsel
communicated the amended plea to the Defendant. Before the scheduled pretrial
hearing, Defendant was given at least ten (10) minutes to speak with his attorney and
with his Mother, who was present in the courtroom. After consulting with his
attorney and his mother, Defendant accepted the plea. According to the transcript,
the Court recessed at 2:32 p.m. to allow Defendant time to consider the plea. Court
was called back into session at 3:39 p.m. after Defendant had decided to plead guilty
and filled out the guilty plea colloquy.
      The court may not accept a plea of guilty unless it finds from proceedings in
open court at the time the plea is proffered that the defendant understands the nature
of the charges against him and the consequences of his plea. See Pa.R.Crim.P. 590.
At Defendant's guilty plea hearing, the Court reviewed the guilty plea colloquy with
Defendant. Defendant's counsel read the entire form to Defendant because he did
not read very well. (N.T. at 7). The Court repeated the charges and asked Defendant
ifhe understood the charges; Defendant replied in the affirmative. (N.T at 8). When
the Court asked the Defendant if he was pleading guilty because he committed the
offenses, Defendant replied yes. (N.T. at 8).
      The Court further questioned if Defendant had enough time to review the
guilty plea; the Defendant replied in the affirmative. (N.T. at 9-10). When asked
in the written colloquy if he had been pressured or coerced into making the plea,
Defendant replied in the negative. At the end of the Court's questions, Defendant
was asked by the Court ifhe still wished to enter a plea of guilty; Defendant replied
yes, agam.      For the above reasons, we find that the Defendant knowingly,
intelligently and voluntarily entered into the amended plea.




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              CONCLUSION
                    For the reasons set forth above, this Court's Order of February 6, 2014 is
              hereby affirmed.




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