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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                              IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellee

                       v.

DEBRA JEAN BOYER

                            Appellant                          No. 1648 WDA 2014


            Appeal from the Judgment of Sentence March 24, 2014
                In the Court of Common Pleas of Blair County
             Criminal Division at No(s): CP-07-CR-0000071-2014


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                   FILED AUGUST 12, 2015

       Debra Boyer appeals from the judgment of sentence denying her post-

sentence motion to withdraw her guilty plea. We affirm.

       Boyer was charged with possession with intent to deliver a controlled

substance     (“PWID”),     possession         of   a   controlled   substance,   criminal

conspiracy and criminal use of a communication facility1 arising from the

sale of controlled substances to a confidential informant on October 3, 2013.

On March 24, 2014, Boyer entered a negotiated guilty plea to PWID and

conspiracy. She twice was advised of the charges to which she was pleading

guilty, once when the Commonwealth advised the trial court of the charges,

and again when the trial court inquired whether she understood the charges
____________________________________________


1
  35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S. § 903,
and 18 Pa.C.S. § 7512, respectively.
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to which she was pleading guilty. N.T., 3/24/14, at 1, 4-5. The trial court

advised her of her right to a jury trial and of the presumption of innocence

she would enjoy during trial.    Id. at 3.   The court asked if she knew the

maximum penalties for the charges, and she answered that she did.         Id.

The court advised her that it did not have to accept the plea agreement. Id.

at 4.

        The trial court accepted Boyer’s guilty plea and sentenced her to 3-23

months’ imprisonment followed by 5 years’ probation. She received credit

for time served and was released from prison on the date of sentencing.

        On April 3, 2014, Boyer filed a timely post-sentence motion to

withdraw her guilty plea.    She claimed in her motion that the confidential

informant called her from Blair County Prison and told her that he did not

buy drugs from her on October 3, 2013.

        On May 22, 2014 and July 3, 2014, the trial court held hearings on

Boyer’s motion to withdraw her guilty plea.      Boyer testified that she lied

when she pled guilty, and that she did not sell drugs to the confidential

informant, Christopher Chaplin. N.T., 5/22/14, at 9. She claimed that she

pled guilty in order to keep her granddaughter out of foster care, and she

now wants her granddaughter to know that she did not commit this crime.

Id. at 11-12.

        Boyer testified as follows: Chaplin is the stepfather of Boyer’s

granddaughter and is the only father Boyer’s granddaughter has ever

known.     N.T., 7/3/14, at 8.   “Angelo” gave Chaplin the drugs instead of

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Boyer. Angelo was “like a brother” to Boyer and had lived in her house, but

Boyer had kicked Angelo out of her house two weeks before October 3rd.

N.T., 7/3/14, at 15-16. On October 3, 2013, Chaplin came to Boyer’s house.

N.T., 5/22/14, at 17. At the same time, Angelo was at Boyer’s house to pick

up his belongings. N.T., 7/3/14, at 16. Chaplin mixed baking soda into a

bag of drugs that Angelo gave him. N.T., 5/22/14, at 17. When Boyer saw

the transaction between Chaplin and Angelo, she called Trooper Chaney of

the State Police to ask what she should do if someone was making up a fake

bag in her house.   Id. Boyer attempted to buy drugs from Angelo in the

past while working with Trooper Chaney to bust Angelo, but Angelo would

not sell drugs to her.   N.T., 7/3/14, at 18.   Following Boyer’s guilty plea,

Chaplin called her from prison and told her that she did not sell him drugs.

N.T., 5/22/14, p. 15.    As a result of this conversation, Boyer asked her

attorney to file a motion to withdraw her guilty plea because she did not

commit a crime. Id. at 15-16.

     Chaplin testified for the Commonwealth and stated that he did in fact

purchase drugs from Boyer.      N.T., 7/3/14, p. 25.   He called Boyer from

prison and told her that he did not buy drugs from her because he did not

want her to know that he was a confidential informant.        Id. at 28.   He

worked as a confidential informant hoping to obtain leniency in his own

cases. Id. at 32.

     Corporal Christopher Moser of the State Police testified that Chaplin

worked with him as a confidential informant.       N.T., 7/3/14, at 38.    On

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October 3, 2013, Corporal Moser said, he was involved in a buy between

Chaplin and Boyer. Id. He searched Chaplin, gave him task force funds and

drove him to Boyer’s house, where he went inside. Id. at 39. While Chaplin

was inside, a white SUV arrived and then left a few minutes later.          Id.

Chaplin then returned to Corporal Moser’s vehicle with a bag of suspected

crack cocaine and some grapefruits.      Id.   The bag testified positive for

cocaine. Id. at 40. Trooper Chaney called Trooper Moser during the buy to

ask if he was doing a buy on Boyer, because she was calling Trooper Chaney

while Chaplin was with her. Id. at 41. Corporal Moser told Trooper Chaney

to tell her that he did not know whether there was a controlled buy in

progress. Id. at 46.

      On September 3, 2014, subsequent to the hearings on Boyer’s post-

sentence motion, the trial court entered a detailed opinion and order denying

her motion. Boyer filed a timely appeal, and both Boyer and the trial court

complied with Pa.R.A.P. 1925.

      Boyer raises one issue in this appeal: “Whether the lower court erred

and abused its discretion in denying [Boyer’s] motion to withdraw [her]

guilty plea that was based on after-discovered evidence?”            Brief For

Appellant, p. 10.

     After the court has imposed sentence,

     a defendant can withdraw his guilty plea ‘only where necessary to
     correct a manifest injustice.’ Commonwealth v. Starr, [] 301
     A.2d 592, 595 ([Pa.]1973). ‘[P]ost-sentence motions for
     withdrawal are subject to higher scrutiny [than pre-sentence
     motions] since courts strive to discourage the entry of guilty pleas

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    as sentencing-testing devices.” Commonwealth v. Kelly, 5 A.3d
    370, 377 (Pa.Super.2010), appeal denied, [] 32 A.3d 1276
    ([Pa.]2011). If the appellant knows the only possible sentence he
    can get for the crime to which he pled guilty, then any pre-
    sentence motion to withdraw the plea is akin to a post-sentence
    motion to withdraw the plea, and the ‘manifest injustice’ standard
    will apply to the pre-sentence motion. Commonwealth v.
    Lesko, [] 467 A.2d 307, 310 ([Pa.]1983).

    To be valid, a guilty plea must be knowingly, voluntarily and
    intelligently entered. Commonwealth v. Pollard, 832 A.2d 517,
    522 (Pa.Super.2003). ‘[A] manifest injustice occurs when a plea
    is not tendered knowingly, intelligently, voluntarily, and
    understandingly.’ Commonwealth v. Gunter, [] 771 A.2d 767,
    771 ([Pa.]2001). The Pennsylvania Rules of Criminal Procedure
    mandate pleas be taken in open court and require the court to
    conduct an on-the-record colloquy to ascertain whether a
    defendant is aware of his rights and the consequences of his plea.
    Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa.Super.2002)
    (citing Pa.R.Crim.P. 590). Under Rule 590, the court should
    confirm, inter alia, that a defendant understands: (1) the nature
    of the charges to which he is pleading guilty; (2) the factual basis
    for the plea; (3) he is giving up his right to trial by jury; (4) and
    the presumption of innocence; (5) he is aware of the permissible
    ranges of sentences and fines possible; and (6) the court is not
    bound by the terms of the agreement unless the court accepts
    the plea. Commonwealth v. Watson, 835 A.2d 786
    (Pa.Super.2003). The reviewing Court will evaluate the adequacy
    of the plea colloquy and the voluntariness of the resulting plea by
    examining the totality of the circumstances surrounding the entry
    of that plea. Commonwealth v. Muhammad, 794 A.2d 378
    (Pa.Super.2002). Pennsylvania law presumes a defendant who
    entered a guilty plea was aware of what he was doing, and the
    defendant bears the burden of proving otherwise. Pollard,
    supra.

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa.Super.2014).                  The

defendant bears the burden of demonstrating that her guilty plea was

involuntary, unknowing or unintelligent. Commonwealth v. Stork, 737

A.2d 789, 790 (Pa.Super.1999). The defendant is bound by the statements



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she makes during the guilty plea colloquy and cannot later assert grounds

for withdrawing the plea that contradict statements she made when pleading

guilty.   Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super.2003).

Nor may a defendant challenge her guilty plea by asserting that she lied

while under oath. Id.

      The trial court concluded that Boyer entered her guilty plea knowingly,

voluntarily and intelligently. Based on our review of the guilty plea hearing

transcript and the transcripts from Boyer’s motion to withdraw her guilty

plea, we agree.    Boyer testified during the hearing on her motion to

withdraw her guilty plea that she pled guilty to keep her granddaughter out

of foster care.    This is a perfectly valid reason for pleading guilty.

Commonwealth v. Watson, 835 A.2d 786, 796 (Pa.Super.2003) (“a

defendant may plead guilty for any reason: to shield others, avoid further

exposure, to diminish the penalty, to be done with the matter, or any secret

reason that appeals to his needs”).     As the trial court observed, Boyer

“received the benefit of her bargain by being released so that she could

continue to care for her granddaughter.” Opinion and Order, 9/3/14, at 9.

Moreover, nothing in the guilty plea hearing transcript indicates that Boyer

acted involuntarily, unknowingly or unintelligently. She admitted committing

the crimes to which she was pleading guilty. She was advised of her right to

a jury trial, the presumption of innocence, the maximum penalties and the

court’s authority to accept or reject the plea agreement, and she

acknowledged understanding all of these terms.

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      In addition, Boyer’s claim that she lied when she pled guilty, and that

she did not actually sell drugs to Chaplin, violates the rule prohibiting the

defendant from challenging her guilty plea by asserting that she lied while

under oath. Pollard, 832 A.2d at 523. We will not permit her to withdraw

her guilty plea by running afoul of this longstanding principle.

      Boyer contends that Chaplin’s telephone call from prison constitutes

after-discovered evidence that entitles her to withdraw her guilty plea and

assert her innocence at trial. We disagree.

      Any after-discovered evidence which would justify a new trial would

also entitle a defendant to withdraw his guilty plea.      Commonwealth v.

Peoples, 319 A.2d 679, 681 (Pa.1974). To justify granting a new trial on

the basis of after-discovered evidence, the evidence must have been

discovered after the trial and must be such that it could not have been

obtained at the trial by reasonable diligence, must not be cumulative or

merely impeach credibility, and must be such as would likely compel a

different result. Id.

      Chaplin’s telephone call is not cumulative and is not merely useful for

impeachment. Nevertheless, it does not satisfy the other elements of after-

discovered evidence. Although it came to light after Boyer’s sentencing, she

did not show that she could not have communicated with Chaplin prior to

sentencing. Furthermore, as the trial court reasoned,

      th[is] evidence is not of such a nature and character that a
      different outcome is likely. This is not like DNA evidence or
      other scientific evidence that would wholly prove or disprove the

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     case.    Here we have a confidential informant who is the
     [step]father of [Boyer’s] granddaughter calling [Boyer] to
     confirm that he did not sell drugs to her. At the time of the
     hearing, [Chaplin] testified that the purpose of his call was to
     dissuade [Boyer] from thinking that he was the confidential
     informant in her case. He also testified that he did in fact
     purchase drugs from [Boyer].             Thus, [Chaplin] himself
     contradicts the veracity of [Boyer’s after-discovered] evidence.

Opinion and order, 9/3/14, p. 9.

     For these reasons, the trial court properly denied Boyer’s post-

sentence motion to withdraw her guilty plea.

     Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2015




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