J-S76013-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

! OF
PENNSYLVANIA
Appellee
V. !
ERICA HARRIS,
I
Appellant ; No. 383 WDA 2018

Appeal from the Judgment of Sentence Entered August 2, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005275-2016

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 24, 2019

Appellant, Erica Harris, appeals from the judgment of sentence of 20 to
45 years’ incarceration, imposed after she pled guilty to third-degree murder,
conspiracy to commit murder, and kidnapping. On appeal, Appellant
challenges the discretionary aspects of her sentence, and argues that her
guilty plea was involuntary. After careful review, we affirm.

The facts of Appellant’s case were summarized by the trial court, as

follows:

On March 24, 2016, [Appellant] drove a vehicle registered
to her to a residence on Boggs Avenue in the Mt. Washington
section of the City of Pittsburgh where the victim, Saevon Scott
Ponder, was located. [Appellant] had originally attempted to
purchase marijuana from the victim. When the victim didn’t meet
[Appellant’s] demand, she contacted her boyfriend[, co-defendant
Mitchell Coles,] and one of his friends[, co-defendant Johnnie
Raines,] to help her obtain the marijuana. The three of them
returned to the Boggs Avenue residence. A witness at that
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residence reported that the victim had been with the witness at
the Boggs Avenue residence. There was a knock on the door and
the victim went outside with the person or persons who knocked
on the door. The victim came back inside and grabbed some
Xanax bars (illegal narcotics). The victim went back outside and
left with [Appellant] and the two other males. A short time later,
the victim called the witness and asked the witness to come
outside. The witness came outside and observed the victim
fleeing from inside the vehicle and running away from the area.
Shortly thereafter, [Coles and Raines] were seen leading the
victim to an area in [the] Beltzhoover section of the City of
Pittsburgh adjacent to Mt. Washington. Gunshots were heard and
the victim was found lying dead on the street. Video surveillance
confirmed the circumstances of the incident including the fact that
[Appellant] had been driving the vehicle that transported [Coles,
Raines, ] and the victim to the scene of the homicide. One of the
shooters, when questioned, confirmed that [Appellant] had driven
them to the Boggs Avenue residence and to the scene of the
shooting.

Trial Court Opinion (TCO), 7/11/18, at 2-3.

On May 8, 2017, Appellant entered an open guilty plea to the above-
stated charges. On August 2, 2017, the court sentenced her to 15 to 30 years’
imprisonment for her third-degree murder conviction, a consecutive term of 5
to 15 years’ incarceration for her kidnapping offense, and no further penalty
for her conspiracy charge. Thus, Appellant’s aggregate sentence is 20 to 45
years’ incarceration. With the trial court’s permission, Appellant filed nunc pro
tunc post-sentence motions to withdraw her guilty plea and _ for
reconsideration of her sentence. The court denied those motions on February
13, 2018. Appellant then filed a timely notice of appeal, and she also timely
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) statement. The

trial court thereafter filed a Rule 1925(a) opinion.
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During the pendency of this appeal, Appellant filed a pro se “Application
for Relief,” indicating that she desired to terminate the representation of her
trial counsel, Scott Alan Westcott, Esq., and proceed pro se on appeal.! On
January 23, 2019, this Court issued a per curiam order forwarding Appellant’s
pro se application to Attorney Westcott in accordance with Commonwealth
v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (“[T]he proper response to any pro
se pleading is to refer the pleading to counsel and to take no further action on
the pro se pleading unless counsel forwards a motion.”).

On January 28, 2019, this Court received a letter from the trial court
indicating that Attorney Westcott’s license to practice law had been suspended
on or after January 23, 2019. Therefore, Attorney Westcott could not have
acted on Appellant’s pro se application to terminate his representation that
was forwarded to him by this Court, and Appellant was _ effectively
unrepresented on appeal. Consequently, we remanded Appellant’s case for
the trial court to conduct a hearing to determine if new counsel should be
appointed or, if Appellant wished to proceed pro se, that her decision to do so
was knowing, intelligent, and voluntary in accordance with Commonwealth
v. Grazier, 713 A.2d 81 (Pa. 1998). We directed the court to conduct that
within 30 days of the February 28, 2019 filing date of our decision. We also

provided that Appellant would have 30 days after the date of the court’s

 

1 When Appellant’s pro se application was filed on January 17, 2019, Attorney
Westcott had already filed a brief on her behalf on October 9, 2018.
Additionally, the Commonwealth had filed its brief on November 6, 2018, and
the time for Appellant’s filing a reply brief had passed.

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resolution of the representation issue to file with this Court a reply brief to
supplement the brief supplied by Attorney Westcott.

The trial court conducted a hearing on March 14, 2019. On May 8, 2019,
it issued an order stating that Megan Loftis, Esq., is counsel of record for
Appellant. However, Attorney Loftis did not file a reply brief by the due date
of June 8, 2019. Accordingly, we will address only the following two issues

set forth in Appellant’s original brief:

I. Did the [t]rial [c]ourt err in abusing its discretion in sentencing
Appellant to an excessive and identical sentence as the co-
[djefendants, and _ failing to thoroughly consider factors
established in the [S]entencing [C]lode, 4[2] Pa.C.S. [§] 9701, et
seq.?

II. Did the [t]rial [cJourt err in refusing to grant [Appellant’s]
Motion to Withdraw Guilty Plea based upon ineffective assistance
of counsel and [Appellant’s] failing to enter into a voluntary and
knowing[] plea, considering, but not limited to[,] the following
factors:

a. Trial [c]ounsel never reviewed with [Appellant] all of the
evidence obtained through discovery;

b. Trial [c]ounsel did not review the Affidavit of Probable
Cause to the Criminal Complaint as evidence in the
sentencing record; and

c. Trial [c]ounsel advised [Appellant] to answer “yes” in
order to continue the plea hearing.

Appellant’s Brief at 6.
Appellant first challenges the discretionary aspects of her sentence.

Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:

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We conduct a four-part analysis to determine: (1) whether
[the] 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 [the]
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.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Commonwealth v. Mann, 820
A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
A.2d 599 (2003).

The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912-13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Appellant preserved her instant sentencing claim in a post-sentence
motion, she filed a timely notice of appeal, and she included a Rule 2119(f)
statement in her appellate brief. However, the entirety of that statement
reads: “[Appellant] raises the discretionary aspects of the [l]ower [c]ourt’s
sentence in that the [l]ower [c]lourt sentenced Appellant to an excessive
sentence without employing the fundamental norms that [Appellant’s]

sentence be individualized.” Appellant’s Brief at 16. The Commonwealth
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submits that Appellant’s cursory Rule 2119(f) statement fails to demonstrate
that she is raising a substantial question for our review. See Commonwealth's
Brief at 12. We agree. Appellant offers no elaboration on why her sentence
is excessive, nor any support for her allegation that the court failed to
individualize her sentence. Accordingly, her cursory Rule 2119(f) statement
does not convince us that her claim involves a substantial question for our
review.

Nevertheless, even had Appellant satisfied the prerequisites for review
of her sentencing claim, we would deem it meritless. Essentially, Appellant
contends that the court failed to take into account her character and individual
circumstances in fashioning her sentence and, instead, determined, prior to
the sentencing hearing, that it would impose upon Appellant the exact same
sentence her co-defendants received.? See Appellant’s Brief at 23. According
to Appellant, her codefendants “had extensive juvenile records” that resulted
in prior record scores exceeding her own score of zero, and guideline ranges
that were higher than those applicable to Appellant. Id. at 20, 21. Thus,
Appellant insists that the court’s decision to impose upon her the same
sentence it fashioned for her co-defendants demonstrates that the court
“basically used the co-[d]efendant[s’] prior record score[s] - and sentencing
guidelines - as the yardstick in determining Appellant’s sentence.” Id. at 22.

As proof of this fact, Appellant stresses that, at her sentencing hearing, the

 

2 Appellant’s co-defendants, Coles and Raines, received aggregate terms of
incarceration of 20 to 50 and 20 to 45 years, respectively.

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court stated: “I think that [Appellant] should serve the same penalty as her
co[-]defendants.... I do. I don’t see any reason to deviate from it because
she facilitated it, all of this. All of it.“ N.T. Sentencing, 8/2/17, at 34.

Appellant also insists that the court’s sentencing decision in this case
mirrors that struck down by this Court in Commonwealth v. Luketic, 162
A.3d 1149 (Pa. Super. 2017). There, Luketic pled guilty to possessing a
controlled substance that had been sold to him by Lanel Buckner, who also
pled guilty to certain offenses. Id. at 1152. At Buckner’s sentencing hearing,
which occurred before Luketic’s, the trial court referred to Luketic as a “dope
fiend[]” and stated, “[Luketic] is going to jail, too. [Luketic] is not walking
out of here either.” Id. On appeal, Luketic contended “that the court erred
in not imposing an individualized sentence following his open guilty plea, and
that it instead decided [Luketic] would receive a sentence of incarceration
before the sentencing proceeding began.” Id. at 1159.

This Court agreed, holding that “the trial court manifestly abused its
discretion by pre-determining [Luketic’s] sentence without considering
individualized factors regarding [Luketic].” Id. at 1163. In support of our
decision, we observed that, “the trial judge announced his intention to
incarcerate [Luketic] prior to the commencement of [his] sentencing
proceeding and before receiving any individualized information about
[Luketic].” Id. The Luketic panel also took issue with the court’s statement
that Luketic, as a drug user, was the ‘opposite side of the same coin’ of his

co-defendant, the drug dealer. Id. at 1164-65. We found that this rationale

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was akin to using “the nature of the criminal act ... as the sole basis for the
determination of the length of sentence[,]” which constitutes an abuse of
discretion. Id. at 1165 (citation omitted). Finally, the Luketic panel
concluded that the trial court had paid mere lip service to other individualized
sentencing factors in fashioning Luketic’s term of imprisonment. Jd. For
instance, the court did not order any drug treatment, despite Luketic’s
addiction issues. Id. The court also did not order a pre-sentence investigation
report, thus precluding a presumption that the court “was aware of relevant
information regarding [Appellant]’s character and weighed those
considerations along with the mitigating statutory factors.” Id. Accordingly,
“[flor all of these reasons,” we vacated Luketic’s sentence. Id.

It is clear that the present case is distinguishable from Luketic. First,
Appellant does not identify any pre-sentencing statements by the court that
are comparable to that made by the trial court in Luketic. While the court
did state that Appellant deserved the same sentence as her co-defendants,
that remark was made after the court considered the evidence presented at
the sentencing hearing. That evidence included a pre-sentence report, to
which Appellant made no additions or corrections, see N.T. Sentencing,
8/2/17, at 3; victim impact statements from the victim’s mother, sister, and
brother, id. at 4-10; and Appellant’s statement of allocution, in which she
expressed her remorse for her actions and stated that she planned to focus
on rehabilitation while incarcerated, fd. at 11-13. The court also considered

arguments by the Commonwealth and defense counsel, including, inter alia,

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the Commonwealth’s position that Appellant’s sentence should be equal to
those imposed upon her co-defendants because she instigated and facilitated
the murder, id, at 19-20, and defense counsel’s argument that Appellant
should receive a more lenient sentence because she had “accepted
responsibility” by pleading guilty, she spared the victim’s family the stress of
“sitting through a trial,” and she had recently given birth to a child, id. at 26-
27.

After listening to the evidence, and the parties’ arguments, the court

explained the sentence it was imposing upon Appellant, as follows:

[Appellant], the child involved in this case, your child,
[defense counsel] references, perhaps is a symbol of sort of all
the young lives that are affected by your decisions.

[Defense counsel] is in a way pleading with the [c]ourt to
allow your child to have a mother before your child is off to college.
But other people’s children, the victim and your two co-
[djefendants, have already been affected.

They are all young people. You are a young person. Older
people like myself, when you see these cases where young people
like you with a lot of positive possibilities in her life, ... make
decisions that take all those possibilities away. In some cases,
judges have no discretion to send a person your age or younger
to prison forever, life without parole.

2K OK K

You've got to answer to the community and to some
particular members of the community for your conduct despite the
fact that it is going to take you out of the life of your child for a
long, long time. There is no way around it.

[Defense counsel] is right. There are no winners, everybody
loses, and your child that didn’t exist when this happened ...
lose[s] because of the decisions that you made, and I say
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decisions plural, not singular. You made several decisions in this
case that cost a young man, a member of our community, his life.

Sometimes I wonder whether people in your position think
that you are part of the community or you are some little colony
over there, some island over there. You are not part of the
community.

We all lose when we have to send somebody like you to
prison just like we lose the victim in this case. He isn’t here
anymore to be a member of our community, but you have to
answer for it.

You can’t keep saying, she didn’t mean it, she didn’t know.
Oh, well, she has a child. You can’t keep making -- I won’t say
excuses, but finding reasons not to hold you accountable.

Sometimes when we have the victim impact statements the
members of the decedent’s family are speaking with venom. They
are entitled to.

Today they did not. Today we had very meaningful
statements but calmly presented. And I applaud the family for
that because they are entitled to spew venom if they want over
what happen[ed] to their loved one.

Then they themselves sometimes are caught with their own
-- challenging their own values. [The victim’s] [m]om said that
she was raised as a Christian, as I was. And she referred to the
Old Testament, an eye for an eye, but the New Testament says,
turn the other cheek, and the Judge has to balance both.

It is not easy. I sign a piece of paper and off you go for
however many years that I say and however that I follow the law
that you are going to serve those years and the law allows me to
send you away for -- I can literally send you away for longer than
[your co-defendants].

The law permits that. I won’t. Because in the end you were
not the one who pulled the trigger.

You facilitated everything that happened in this case and
you demonstrated even after the fact that you were going to
continue to try to protect [your co-defendant, Coles,] who

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committed this terrible act[,] even by misrepresenting your
situation to the Commonwealth when they gave you a chance.!?!

I have to tell you that that somewhat cuts back on my
willingness to accept your total remorse today because I wonder
are you just saying what you think needs to be said? Again, it is
hard to say.

I think that [Appellant] should serve the same penalty as
her co-[d]jefendants.... I do. I don’t see any reason to deviate
from it because she facilitated it, all of this. All of it.

This would be a different case if she did one thing and it got
out of hand and the other guys acted in a way that went beyond
what you might expect happened, but that’s not what happened
in this case.

She facilitated it when the victim jumped out of the car. She
was there to wait to get him back in, to take him to the spot where
he would be executed -- sorry, mom, but that’s what happened
here[,] he was executed, and you sat there and waited for them
to execute him and then you gave them the ride back, and even
after the fact you lied to the Commonwealth as to your intent to
cooperate.

 

3 The court is referring to the fact that, as explained by the Commonwealth at
Appellant’s guilty plea proceeding,

there was an agreement made between the Commonwealth and
[Appellant] immediately prior to the preliminary hearing in this
case[,] which is why [Appellant] was [initially] only charged with
kidnapping, conspiracy and possession of marijuana.... Part of that
agreement was she have no contact whatsoever with [her co-
defendant,] Mr. Coles. She flagrantly violated that agreement,
repeatedly spoke to him on the phone, spoke to him about this
case, these charges, [and] the circumstances.

N.T. Guilty Plea, 5/8/17, at 10. The trial court found that Appellant’s violating
her pretrial agreement with the Commonwealth cast doubt on the sincerity of
her expressions of remorse for her part in the shooting. See N.T. Sentencing
at 25-26.

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I see that as demonstrating that you pose a substantial risk
to the community and you need to face the same sentence as your
co-[d]jefendants do. ... It is the [c]Jourt’s intention to sentence
[Appellant] to 20 to 45 years.

Id. at 31-35. The court structured Appellant’s sentence such that she
received a standard range term of 15 to 30 years’ for third-degree murder, an
above-aggravated-range sentence of 5 to 10 years’ for kidnapping, and no
further penalty for conspiracy to commit murder.*

The entirety of the record before us demonstrates that, unlike in
Luketic, the court did not make a predetermined decision in sentencing
Appellant, nor did it rely solely on the nature of her criminal act in fashioning
her sentence. Rather, the court reached its sentencing decision after carefully
considering the pre-sentence report, the evidence and arguments presented
at the sentencing hearing, the circumstances of the case, and the individual
characteristics of Appellant, including her youth, familial obligations,
expressions of remorse, and the danger she poses to the community.
Additionally, the court balanced the fact that Appellant was not the person
who shot the victim with the fact that she started, and facilitated, the chain of
events leading to the victim’s death. Namely, she drove her co-defendants to

the victim’s home, drove all three men to the location of the murder, and she

 

4 As the Commonwealth points out, Appellant does not raise any specific
challenge to her kidnapping sentence on the basis that it exceeds the guideline
ranges. See Commonwealth's Brief at 10 n.12.

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did not at any point attempt to stop the killing from happening.? Given all of
these factors, the court determined that Appellant deserved a sentence
comparable to that imposed upon her co-defendants. We would discern no
abuse of discretion in that decision, had Appellant presented a substantial
question for our review in her Rule 2119(f) statement.

In Appellant’s second issue, she contends that her plea counsel acted
ineffectively in several regards, which led to her guilty plea not being knowing,
intelligent, and voluntary. Appellant acknowledges that “claims of ineffective
assistance should ordinarily be reserved for collateral review.” Appellant's
Brief at 24 (relying on Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)).
She avers, however, that the true issue before us is not an ineffectiveness
claim, but an argument that “the lower court failed to make an adequate
inquiry into whether [she] made a knowing, intelligent and voluntary plea.”
Id. Specifically, Appellant attacks the court’s failure to inquire further when

Appellant changed an answer during the plea colloquy, as follows:

THE COURT: [Appellant], did you read the Affidavit in your case?

 

> Appellant claims, in a footnote, that the trial court “relied upon facts that
were purported by the Commonwealth but not substantiated before the court.”
Appellant’s Brief at 22 n.3. However, she provides no citation to the record
to support her claim that, “[a]t sentencing, trial counsel argued that the facts
being offered by the Commonwealth were not completely factual relating to
[her] initial involvement and relating to whether [she] could have abated the
‘kidnapping’ and events leading to the victim’s death.” Id. Moreover, aside
from the two-sentence footnote, Appellant does not develop any meaningful
argument regarding the court’s allegedly considering facts not supported by
the record. Thus, we do not consider that claim herein.

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[Appellant]: No, sir.
[Plea Counsel]: Can I have a moment, Your Honor?
(Counsel and [Appellant] confer.)
[Appellant]: Yes, sir.
N.T. Guilty Plea at 8. According to Appellant,

she did not review the Affidavit of Probable Cause and much of
the discovery provided by the Commonwealth. Appellant
contends that her [plea] counsel, in the off the record
discussion[,] advised her to answer “yes” so the lower court would
accept her plea. Appellant was led to believe by counsel that she
was being sentenced to a period of incarceration of seven (7)
years. It is Appellant’s position that the lower court should have
made a further inquiry relating to why Appellant answered that
she did not read the Affidavit of Probable Cause. Not having
reviewed the discovery associated with this case, Appellant did
not enter into a knowing, intelligent and voluntary plea. [The]
[I]ower court erred in not allowing [her] to withdraw her guilty
plea.

Appellant’s Brief at 28.

Appellant’s assertion that her plea counsel gave her misinformation, and
directed her to provide untrue answers during the plea colloquy, are clearly
ineffectiveness claims that must be raised on collateral review. See Grant,
supra. Without testimony regarding what counsel said to Appellant during
their off-the-record discussion, we cannot conclude that the court’s failure to
inquire into Appellant’s change of answer to the simple question of whether
she read the affidavit of probable cause constitutes “manifest injustice”
warranting the post-sentence withdrawal of her plea. See Commonwealth

v. Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002) (“The standard for

withdrawal of a guilty plea after imposition of sentence is much higher [than

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a pre-sentence withdrawal]; a showing of prejudice on the order of manifest
injustice is required before withdrawal is properly justified.”) (citation and
internal quotation marks omitted). Accordingly, we deny Appellant relief on
her second issue, without prejudice to her right to seek collateral review of
this claim.

Judgment of sentence affirmed.

 

Joseph D. Seletyn, Esdé
Prothonotary

Date: 6/24/2019

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