J-S41030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHURLAN ESPINOSA                           :
                                               :
                       Appellant               :   No. 3579 EDA 2016

            Appeal from the Judgment of Sentence October 25, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009741-2013,
              CP-51-CR-0009742-2013, CP-51-CR-0009743-2013,
                           CP-51-CR-0009754-2013


BEFORE:      GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                              FILED OCTOBER 09, 2018

       Appellant, Shurlan Espinosa, appeals from the judgment of sentence

entered on October 25, 2016 in the Criminal Division of the Court of Common

Pleas of Philadelphia County, as made final by the denial of post-sentence

motions. We affirm.

       The trial court aptly summarized the facts1 and procedural history in this

case as follows.

       From approximately 2007 through February 2013, [Appellant]
       sexually assaulted his step-daughter, S.B.     These assaults
       occurred in [the family] home on West Courtland Street in
       Philadelphia and at [Appellant’s] place of employment in
       Gladwyne, Pennsylvania. S.B. was [seven] to 13 years old during

____________________________________________


1The Commonwealth’s presentation at Appellant’s plea hearing served as the
basis for the trial court’s recitation of the facts. See Trial Court Opinion,
12/21/17, at 2.
____________________________________
* Former Justice specially assigned to the Superior Court.
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     the periods of abuse, and multiple occasions started when she was
     [seven]. [During these episodes, Appellant] would pull down her
     clothes, forcefully grab her breasts and vagina and insert his
     finger[s] into her vagina more than one time. Additionally, he
     then progressed to [inserting] his penis in[to] her vagina and
     [placing] his tongue on her vagina. Again, this stopped when she
     was 13 years old.

     From 1999 through 2000, [Appellant] sexually abused his
     biological daughter, L.E. The abuse occurred when [L.E.] was
     approximately 7 to 8 years old. This abuse occurred in their home
     on 5th Street, in the City and County of Philadelphia. On several
     occasions [Appellant] would call L.E. into his bed where he would
     be laying down naked. He would touch her vagina and insert his
     finger into her vagina. He also took her hand and made her touch
     his penis.

     From approximately 2009 through 2012, [Appellant] sexually
     assaulted his stepson, E.B. This occurred when E.B. was 10 to 12
     years old, in their home located on West Courtland Street in
     Philadelphia. [Appellant] would call E.B. into his bed, [tell] him to
     pull his pants down, and with lotion, [Appellant] would rub E.B.’s
     penis. [Appellant] also made E.B. touch his penis.

     From approximately 1992 through 1994, [Appellant] sexually
     assaulted Y.S. when she was 11 to 12 years of age. At the time
     of the sexual abuse, [Appellant] was dating Y.S.’s cousin and
     living in the same home as the victim. Starting at age 11,
     [Appellant] would touch Y.S.’s breasts [and, on numerous
     occasions,] he also penetrated her vagina with his penis. When
     Y.S. was 12 years old, he impregnated her. She gave birth to a
     son on June [19, 1994.] DNA testing [] confirmed that [Appellant]
     is the biological father of that child. These assaults occurred at
     Y.S.’s aunt’s house located on Ogontz Street in Philadelphia.

Trial Court Opinion, 12/21/17, 1-2 (footnotes and record citations omitted).

     On July 13, 2016, Appellant pled guilty to the following charges: 1) at

CP-51-CR-0009741-2013 (complainant S.B.) rape of a child (18 Pa.C.S.A.

§ 3121) and involuntary deviate sexual intercourse with a child (18 Pa.C.S.A.

§ 3123); 2) at CP-51-CR-0009742-2013 (complainant L.E.) aggravated


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indecent assault (18 Pa.C.S.A. § 3125) and corruption of minors (18 Pa.C.S.A.

§ 6301); 3) at CP-51-CR-0009743-2013 (complainant E.B.) indecent assault

(18   Pa.C.S.A.   § 4303)    and    corruption   of   minors;    and,    4)   at

CP-51-CR-0009754-2013 (complainant Y.S.) rape and corruption of minors.

The trial court deferred sentencing pending the completion of a presentence

investigation report (“PSI”), a mental health evaluation, and a report by the

Sex Offenders Assessment Board (“SOAB report”).         On October 25, 2016,

Appellant received 40-80 years’ incarceration for his offenses. On November

3, 2014, Appellant filed timely motions to withdraw his guilty plea and for

reconsideration of his sentence. Both motions were denied without a hearing

on November 14, 2016.

      A timely notice of appeal followed on November 16, 2016. Thereafter,

on October 25, 2017, counsel for Appellant filed a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued

its Rule 1925(a) opinion on December 21, 2017.

      Appellant’s brief raises two claims for our review:

      Did the trial court err and/or abuse its discretion when it denied
      [Appellant’s] post-sentence, written and properly filed motion
      seeking to withdraw his guilty plea where [Appellant] asserted his
      innocence and that the plea was the result of coercion, and that
      the Commonwealth did not establish that it would suffer any
      prejudice as a result of the withdrawal of the plea?

      Is the sentence imposed unduly harsh and greater that which
      would be consistent with the protection of the public, the gravity
      of [Appellant’s] conduct as it relates to the impact on the life of
      others in the community, and the rehabilitative needs of
      [Appellant], and did the trial court [fail] to take into account all


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      mitigating and relevant and necessary factors to be considered by
      a sentencing court (including [Appellant’s] age, lawful work
      history, rehabilitative needs, medical and psychiatric issues,
      acceptance of responsibility, remorse, and sparing further injury
      to the complainants by foregoing the necessity of trial and his
      allocution); that is, is confinement in a state correctional facility
      for the term imposed is not the least restrictive sentence
      necessary to effectuate the aims of Pennsylvania’s sentencing
      laws?

Appellant’s Brief at 5.

      In his first claim, Appellant argues that the trial court erred in denying

his post-sentence motion to withdraw his guilty plea. In support of this claim,

Appellant asserts that his guilty plea was the product of undue coercion and

duress and, therefore, involuntary. Since his plea was involuntary, a manifest

injustice occurred. Under these circumstances, Appellant maintains that the

trial court erred in denying the motion to withdraw, particularly since the

Commonwealth came forward with no evidence showing that it would suffer

prejudice if the motion were granted.

      [A]fter the court has imposed a 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 since courts strive to discourage the
      entry   of guilty    pleas    as  sentencing-testing    devices.”
      Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa. Super. 2010),
      appeal denied, 32 A.3d 1276 (Pa. 2011).

      To be valid [under the “manifest injustice” standard], 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

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      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
      [c]ourt 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) [(noting that a defendant has no absolute right to withdraw
      a guilty plea and that the decision to grant such a motion lies
      within the sound discretion of the trial court)]. 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. Kpou, 153 A.3d 1020, 1023-1024 (Pa. Super. 2016)

(quotation omitted).

      The trial court did not abuse its discretion in denying Appellant’s

post-sentence motion to withdraw his guilty plea. In this case, a thorough

and   comprehensive     on-the-record    colloquy    established   that   Appellant

knowingly, willingly, and voluntarily pled guilty.      During the plea hearing,

Appellant confirmed his understanding of each factor listed in Pa.R.Crim.P.

590. Moreover, Appellant specifically confirmed that he freely entered his plea

and that he was neither pressured nor coerced into pleading guilty.              See

Muhammad, 794 A.2d at 384 (defendant is bound by statements at plea

hearing and cannot assert claims that contradict such statements). Finally,

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the trial court correctly disregarded Appellant’s bald assertion of innocence,

which lacked even a trace of support in the record.2 See Kpou, 153 A.3d at

1024 (assertions of innocence are relevant only in context of pre-sentence

motions to withdraw guilty pleas; post-sentence claims of innocence do not

demonstrate manifest injustice).

       Following our review of the totality of relevant circumstances, we

conclude that Appellant failed to demonstrate that his guilty plea was entered

in an involuntary, unknowing, or unintelligent manner. As such, he did not

establish a manifest injustice necessary for the post-sentence withdrawal of

his guilty plea.    Accordingly, we hold that the trial court neither erred nor

abused its discretion in denying Appellant's motion to withdraw his plea.

       Appellant’s second claim challenges the discretionary aspects of his

sentence. When an appellant challenges the discretionary aspects of his

sentence, we consider his brief on this issue a petition for permission to

appeal. Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010). Prior

to reaching the merits of a discretionary sentencing issue,

       [we conduct] a four[-]part analysis to determine: (1) whether
       [A]ppellant 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 [A]ppellant's brief has a fatal
       defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial


____________________________________________


2 We are obliged to note that DNA evidence confirming that Appellant
impregnated a 12-year-old victim erects a nearly insurmountable obstacle to
establishing a colorable claim of factual innocence.

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      question that the sentence appealed from is not appropriate under
      the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

      Here, Appellant filed a timely appeal, preserved his sentencing claim in

a motion for reconsideration, and included a statement of the reasons relied

on for allowance of appeal pursuant to Pa.R.A.P. 2119(f) in his appellate brief.

We now consider whether Appellant raised a substantial question for our

review.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526,

533 (Pa. Super. 2011). Further:

      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.

Id. (internal citations omitted).

      In his Rule 2119(f) statement, Appellant pointed out that he pled guilty

to eight offenses. As punishment, the trial court imposed six sentences within

the standard range of the sentencing guidelines, one sentence in the

aggravated range, and one sentence of no further penalty. The court directed

Appellant to serve all seven sentences in a consecutive manner. All told, the

aggregate sentence in this case ranged from 40 to 80 years. Appellant claims

that such a sentence is excessive and that the trial court imposed it without

considering mitigating factors or his rehabilitative needs.      Appellant also

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claims that the sentence is not the least restrictive punishment designed to

effectuate the aims of Pennsylvania’s sentencing laws and is greater than that

which is consistent with the need to protect the public, redress the gravity of

Appellant’s offenses, and rehabilitate Appellant.

      Framed as such, Appellant’s claims raise substantial questions for our

review.   See Commonwealth v. Swope, 123 A.3d 333, 339 (Pa. Super.

2015) (claim that consecutive sentences are unduly excessive together with

claim that sentencing court failed to consider defendant’s rehabilitative needs

and   mitigating   factors   presents   substantial   question);   see      also

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (“An

appellant making an excessiveness claim raises a substantial question when

he sufficiently articulates the manner in which the sentence violates either a

specific provision of the [] Sentencing Code or a particular fundamental norm

underlying the sentencing process.”), appeal denied, 105 A.3d 736 (Pa. 2014).

Since Appellant raises a substantial question, we proceed to review the merits

of his claim.

      Our standard of review in this context is as follows:

      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.




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     Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super.
     2006). Additionally, our review of the discretionary aspects of a
     sentence is confined by the statutory mandates of 42 Pa.C.S.A.
     §§ 9781(c) and (d). Subsection 9781(c) provides:

              The appellate court shall vacate the sentence and
       remand the case to the sentencing court with instructions if
       it finds:

             (1) the sentencing court purported to sentence within
       the sentencing guidelines but applied the guidelines
       erroneously;

            (2) the sentencing court sentenced within the
       sentencing guidelines but the case involves circumstances
       where the application of the guidelines would be clearly
       unreasonable; or

            (3) the sentencing court sentenced outside the
       sentencing guidelines and the sentence is unreasonable.

            In all other cases the appellate court shall affirm the
       sentence imposed by the sentencing court.

     42 Pa.C.S.A. § 9781(c).

              In reviewing the record, we consider:

             (1) The nature and circumstances of the offense and
       the history and characteristics of the defendant.

             (2) The opportunity of the sentencing court to observe
       the defendant, including any presentence investigation.

              (3) The findings upon which the sentence was based.

              (4) The guidelines promulgated by the commission.

     42 Pa.C.S.A. § 9781(d).

Raven, 97 A.3d at 1253-1254.




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      Our review of the record confirms that the trial court gave adequate

consideration to Appellant’s rehabilitative needs and the relevant mitigating

factors and, ultimately, imposed a sentence consistent with our sentencing

code and the fundamental norms underlying the sentencing process.           The

court calculated the appropriate guidelines range for each offense in this case.

In addition, the court obtained a presentence investigation report. While the

trial court acknowledged that Appellant spared his victims the trauma of a jury

trial, the court determined that the circumstances warranted an enhanced

punishment in view of the severe implications Appellant’s conduct foisted upon

the victims and their families. Noting that Appellant impregnated one of his

young victims, the court reasoned that this case involved “extreme”

circumstances that made the level of mitigation requested by Appellant

inappropriate. See Trial Court Opinion, 12/21/17, at 7. We perceive no abuse

of discretion in this approach to fashioning an individualized sentence under

the circumstances of this case.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/18


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