J-S27027-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KAISHA DUGGINS                             :
                                               :
                       Appellant               :   No. 3241 EDA 2019

          Appeal from the Judgment of Sentence Entered June 29, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002548-2016


BEFORE:      SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.:                              FILED JULY 15, 2020

        Kaisha Duggins (Appellant) appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas following

her open guilty pleas to voluntary manslaughter—unreasonable belief killing

justifiable,1 conspiracy to commit voluntary manslaughter, and possessing an

instrument of crime (PIC).2 Appellant argues the court abused its discretion




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*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. § 2503(b).

2   18 Pa.C.S. §§ 903(a), 907.
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when imposing her sentence by failing to consider mitigating circumstances.3

We affirm.

       Appellant and two co-defendants, Aleathea Gillard and Shareena

Joachim,4 were charged with attacking Robert Barnes (Decedent), who was

homeless. The charges proceeded to a joint plea hearing on January 29, 2018,

where the Commonwealth presented the following factual summary. See N.T.

Guilty Plea H’rg, 1/29/18, at 53-54.           On April 7, 2015, around 6:30 p.m.,

Decedent was standing outside a gas station located at 5335 North 5th Street

in Philadelphia.     A 10-year old boy rode his bike near Decedent and, for

reasons unknown, went home and told his mother, Gillard, that Decedent hit

the boy and called him a racial slur. Approximately 10 minutes later, Gillard

and her cohorts, Appellant and Joachim, arrived at the gas station, exited their

van and immediately attacked Decedent.             Three juveniles — two of whom

were Gillard’s children — also joined the attack. Id. at 53, 55. Decedent “was

knocked to the ground and punched, kicked and beaten about the head and

body with various objects.”         Id. at 53.    Appellant struck Decedent with a



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3 Upon the Commonwealth’s request, this panel granted an extension of time
for it to file a brief. The Commonwealth then filed a second extension of time,
which this panel denied.

4  During the recitation of the facts at the guilty plea hearing, the
Commonwealth referred to Joachim as Appellant’s friend. N.T. Guilty Plea
H’rg, 1/29/18, at 53. However, Appellant’s sentencing memorandum stated
Appellant and Joachim are sisters. See Appellant’s Sentencing Memorandum,
5/25/18, at 7.

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hammer, while Gillard beat him with a wooden chair leg.            Joachim also

attempted to blind Decedent by spraying mace into his eyes, but instead

sprayed one of the juveniles involved. Recovered video surveillance showed

the brutal attack in its entirety.         The video confirmed that the unarmed

Decedent did not have, prior to the attack, any verbal or physical contact with

Gillard’s son, Appellant, her two co-defendants, or the juveniles involved.

       The Commonwealth’s evidence showed the following. See N.T., Guilty

Plea H’rg, at 54-55. Decedent was rushed to the hospital in critical condition

where he underwent brain surgery. Post-surgery, Decedent was transferred

to a nursing home on April 30, 2015, where his condition deteriorated and he

died on November 25, 2015. The Montgomery County Medical Examiner’s

office performed an autopsy, which “revealed brain hemorrhages, contusions

to both eyes, [a] fractured left orbital bone, a fractured nasal bone[,] and

blunt impact injury to the torso.” Id. at 55. The Medical Examiner’s officer

determined “the cause of death [was] complications following blunt impact

injury to the head” and ruled the manner of death was homicide. Id.

       On January 29, 2018, Appellant and both co-defendants entered open

guilty pleas to voluntary manslaughter, conspiracy, and PIC.5 N.T., Guilty Plea


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5 Gillard and Joachim each took direct appeals to this Court, challenging the
discretionary aspects of their sentences. Commonwealth v. Gillard, 3390
EDA 2018 (unpub. memo.) (Pa. Super. Dec. 18, 2019); Commonwealth v.
Joachim, 3400 EDA 2018 (unpub. memo.) (Pa. Super. Dec. 18, 2019). This



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H’rg, at 6-7, 56-58; see Written Guilty Plea Colloquy, 1/29/18.                 Each

defendant signed statements admitting their participation in the attack.

Appellant specifically admitted to striking Decedent in his head with a

hammer. Id. at 55.

        On June 29, 2018, the trial court sentenced Appellant to the following:

two consecutive terms of 10 to 20 years’ incarceration for voluntary

manslaughter and conspiracy; and a consecutive term of 2 1/2 years to 5

years’ incarceration for PIC. Appellant’s aggregate term was 22 1/2 to 45

years’ incarceration.       The court reviewed the sentencing memorandum,

summarized the information therein, and acknowledged an upward deviation

from the Sentencing Guidelines.6 N.T. Sentencing H’rg, 6/29/18, at 9, 111-

13. Appellant timely filed a post-sentence motion, which the court denied on

October 24, 2018.

        Appellant did not initially file a notice of appeal, but filed a timely pro se

Post Conviction Relief Act7 (PCRA) petition on December 28, 2018. The trial


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Court affirmed both co-defendants’ judgments of sentences on December 18,
2019.

6 The standard range sentence for voluntary manslaughter with a deadly
weapon enhancement was 54 to 72 months’ incarceration, plus or minus 12
months. For conspiracy to commit voluntary manslaughter, the standard
range with a deadly weapon enhancement was 40 to 54 months’ incarceration,
plus or minus 12 months. For PIC, the standard range sentence was
restorative sanctions, plus or minus 3 months’ incarceration. See N.T.,
Sentencing H’rg, at 10.

7   42 Pa.C.S. §§ 9541-9546.

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court appointed present counsel for Appellant. On August 8, 2018, Appellant

filed an amended PCRA petition. Appellant alleged ineffective assistance in

trial counsel’s failure to perfect an appeal when she requested counsel to do

so, and abandoning her without withdrawing from representation.              On

November 8, 2019, the PCRA court reinstated Appellant’s appellate rights

nunc pro tunc. That same day, Appellant filed a notice of appeal, followed by

a Pa.R.A.P. 1925(b) statement on November 20, 2019, which the trial court

did not order. The trial court has advised this Court by letter, dated February

12, 2020, that the trial judge, the Honorable Sandy Byrd, is no longer sitting

as a judge in Philadelphia County and no trial court opinion has been filed.

Letter from Common Pleas Trial Division, 2/12/20.

      Appellant presents one issue for our review:

      Did the trial court abuse its discretion in sentencing Appellant to
      22 1/2 to 45 years of state incarceration when Appellant accepted
      responsibility for her actions and showed remorse, when Appellant
      is the mother of a minor child, when Appellant suffers from mental
      health disorders and was intoxicated at the time of the incident,
      and when Appellant had no prior record score resulting in a
      sentence that was a substantial departure from the sentencing
      guidelines?

Appellant’s Brief at 4.    Appellant avers the imposition of her sentence

constitutes an abuse of discretion by the trial court “and goes well beyond the

purpose of the penal system — protection of society, general deterrence,

individual deterrence, rehabilitation, and retribution.” Id. at 11. Appellant

contends the trial court did not consider a variety of factors when it fashioned

her sentence. Appellant stresses she accepted responsibility and entered into

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a guilty plea, was remorseful and apologetic about her actions, was untreated

for bipolar disorder, was under the influence of “various drugs” when the

attack occurred,8 has a young child for whom she cares, and did not initiate

the attack. Id. at 7. Appellant also contends that she had no prior record

and her sentence deviation from co-defendant Joachim — who received an

aggregate sentence of 12 1/2 to 25 years’ incarceration — “was not

adequately justified,” thus, requiring she be resentenced. Id. at 9; see N.T.,

Sentencing H’rg, at 120.

       Appellant challenges the discretionary aspects of her sentence. Such a

claim is not appealable as of right, but “must be considered a petition for

permission to appeal.” Commonwealth v. Best, 120 A.3d 329, 348 (Pa.

Super. 2015) (citation omitted). Before we reach the merits of a discretionary

sentencing issue, this Court must determine:

       (1) whether the appeal is timely; (2) whether Appellant preserved
       [the] issue; (3) whether Appellant’s brief includes a concise
       statement of the reasons relied upon for allowance of appeal with
       respect to the discretionary aspects of sentence; and (4) whether
       the concise statement raises a substantial question that the
       sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013)



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8 Although Appellant’s brief does not elaborate on the various drugs used, her
Sentencing Memorandum explained that in her pre-sentence interview,
Appellant stated she had “taken 4 Xanax and smoked 2 blunts” on the date of
the incident and “took shots of alcohol to swallow down the pills.” See
Appellant’s Sentencing Memorandum, 5/28/15, at 8.


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(citation omitted).

      Appellant complied with the procedural requirements for this appeal by

filing a timely post-sentence motion and a nunc pro tunc notice of appeal. In

her appellate brief, Appellant includes a statement of reasons relied upon for

appeal pursuant to Pa.R.A.P. 2119(f).     See Edwards, 71 A.3d at 329-30;

Appellant’s Brief at 8-12.   This statement claims she had no prior record,

accepted responsibility for her crime, has a young child, and had a “difficult

social background and mental health and substance issues,” and that the

sentence imposed “goes well beyond the purpose of the penal system.”

Appellant’s Brief at 9, 11. In Commonwealth v. Dodge, 77 A.3d 1263 (Pa.

Super. 2013), this Court found that “an excessive sentence claim, in

conjunction with an assertion that the court did not consider mitigating

factors, raised a substantial question.” See Commonwealth v. Dodge, 77

A.3d 1263, 1272 (Pa. Super. 2013). Accordingly, we conclude Appellant has

raised a substantial question for our review, and now turn our attention to the

specific issued raised on appeal.

      We review the trial court’s determination for an abuse of discretion.

      [T]he proper standard of review when considering whether to
      affirm the sentencing court’s determination is an abuse of
      discretion. . . . [A]n abuse of discretion is more than a mere error
      of judgment; thus, a sentencing court will not have abused its
      discretion unless the record discloses that the judgment exercised
      was manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will. . . .

Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa. Super. 2010) (citation


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omitted).

      In reviewing the sentence, an appellate court shall 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; and
      (4) the guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d)(1)–(4).        A sentence of total confinement shall be

consistent with “the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).

      Furthermore,

                  When imposing a sentence, the sentencing court is
            required to consider the sentence ranges set forth in the
            Sentencing Guidelines, but it [is] not bound by the
            Sentencing Guidelines. Commonwealth v. Yuhasz,
            923 A.2d 1111, 1118 (Pa. 2007) (“It is well established
            that the Sentencing Guidelines are purely advisory in
            nature.”).       The court may deviate from the
            recommended guidelines; they are “merely one factor
            among many that the court must consider in imposing a
            sentence.” A court may depart from the guidelines “if
            necessary, to fashion a sentence which takes into
            account the protection of the public, the rehabilitative
            needs of the defendant, and the gravity of the particular
            offense as it relates to the impact on the life of the victim
            and the community.” When a court chooses to depart
            from the guidelines[,] however, it must “demonstrate on
            the record, as a proper starting point, [its] awareness of
            the sentencing guidelines.” Further, the court must
            “provide a contemporaneous written statement of the
            reason or reasons for the deviation from the guidelines.”
            42 Pa.C.S.[ ] §9721(b).

      The requirement that the court provide a contemporaneous

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      written statement is satisfied “when the judge states his reasons
      for the sentence on the record and in the defendant's presence.”

Commonwealth v. Durazo, 210 A.3d 316, 320–21 (Pa. Super. 2019) (some

citations omitted).

      Where the sentencing court had the benefit of a presentence
      investigation report (“PSI”), we can assume the sentencing court
      “was aware of relevant information regarding the defendant’s
      character and weighed those considerations along with mitigating
      statutory factors.” Further, where a sentence is within the
      standard range of the guidelines, Pennsylvania law views the
      sentence as appropriate under the Sentencing Code.

Moury, 992 A.2d at 171 (citations omitted).

      “When imposing a sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In particular, the court should refer to the defendant’s
      prior criminal record, his age, personal characteristics and his
      potential for rehabilitation.”

Id. (citations omitted).

      We reiterate the trial court reviewed Appellant’s pre-sentencing

memorandum. N.T., Sentencing H’rg, at 9. While no opinion was filed in this

matter, the trial court stated its reasons with specificity in open court and on

the record for imposing its sentence:

            [Appellant,] you had the benefit of a mitigation expert. I
      have considered the various documents that were submitted to
      me on your behalf and they are, of course, mitigating factors. All
      of which are laid out in either the presentence investigation, the
      mental health evaluation, the sentencing memorandum or the
      presentation presented here in this court. They include the fact
      that you accepted responsibility by pleading guilty, you are a
      mother of children and you have an underlying psychiatric
      disorder.




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            On the other hand, there are various aggravating factors
     which clearly outweigh the mitigating circumstances.           They
     include the following: [t]his was not a typical voluntary
     manslaughter case. That is, it is compellingly different from other
     manslaughter cases. First, you had no family involvement in this
     case unlike the co-defendant whose son falsely accused the victim
     of a crime. Second, you were a leading actor in the killing, arming
     yourself with a hammer. You were, from my viewing of the video,
     the first to strike [Decedent]; an unarmed, unsuspecting,
     vulnerable person.

           Once [Decedent] was knocked to the ground, others
     engaged in a prolonged beating which resulted in pain and
     suffering over the period of April 2015 through November 2015.

           You acted in concert with children. Rather than removing
     them from this violent confrontation, you did nothing to prevent
     the juveniles from engaging in actions that resulted in two of them
     carrying a lifetime adjudication for third degree murder.

            Now I'm mindful of the fact that you have a prior record
     score of zero, but I know, given the manner in which our
     guidelines are computed, that it does not take into account your
     prior conviction for assault on facts not unlike the present case,
     all be it no one died, obviously, in that case.

          In light of the foregone, the [c]ourt finds that an upward
     departure from the guidelines is required.

N.T., Sentencing H’rg, at 117-19.

     In this case, the trial court fully complied with Section 9721(b). The

court noted the standard range sentence with a deadly weapon enhancement

was 54 to 72 months in prison for voluntary manslaughter and 40 to 54

months in prison for conspiracy to commit voluntary manslaughter.          N.T.,

Sentencing H’rg, at 10. The court, as set forth above, stated its reasons for

imposing a sentence of ten years’ imprisonment. The trial court acknowledged

Appellant’s PSI and it thoroughly considered Appellant’s nature and history.

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It also had an opportunity to observe Appellant and weigh the information in

the PSI concerning her character as well as her mitigation report. The court

explained the aggravating factors that contributed to her sentence, by

elaborating on her being the initial attacker and her use of a hammer on an

“unarmed, unsuspecting, vulnerable person.”            Id.at 107.     The trial court

adequately explained its departure from the standard range of the sentencing

guidelines. See 42 Pa.C.S.A. § 9781(d)(1)–(4); Durazo, 210 A.3d at 320–

21; Moury, 992 A.2d at 171.

          Finally, taking into consideration the totality of the circumstances of this

case, Appellant’s admitted participation in a brutal, sustained, and unprovoked

beating of an unarmed homeless man, this Court does not find the imposed

sentence “shocks the conscience.” Accordingly, Appellant is not entitled to

relief.

          Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2020




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