J-S42005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BENDU MASSAQUOI                            :
                                               :
                       Appellant               :   No. 1939 EDA 2018

       Appeal from the Judgment of Sentence Entered February 12, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010800-2016


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 04, 2019

        Bendu Massaquoi appeals from the judgment of sentence imposed on

February 12, 2018, in the Court of Common Pleas of Philadelphia County. This

followed her open guilty plea, on December 11, 2017, to one count of

aggravated assault by vehicle while driving under the influence (DUI), 1 three

counts of accident involving death — not properly licensed,2 one count of




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. § 3735.1(a).

2   75 Pa.C.S.A. § 3742.1(a).
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aggravated assault by vehicle,3 two counts of homicide by vehicle while DUI,4

and two counts of homicide by vehicle.5 On February 12, 2018, the trial court

sentenced Massaquoi to an aggregate sentence of 10 to 20 years’

imprisonment.       On appeal, Massaquoi challenges the denial of her post-

sentence motion to withdraw her guilty plea and the discretionary aspects of

her sentence. For the reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter from

the trial court’s November 14, 2018 opinion.

        On July 24, 2016, [Massaquoi], Matherlina Assouge, Ben Jimmy
        and Kowo Jallah were at Trilogy nightclub together. Afterward,
        they all entered Ben Jimmy’s car, a 2005 Mazda 6. As Ben Jimmy
        was driving, [Massaquoi] demanded that he pull over so that she
        could drive. Ben Jimmy pulled over and allowed [Massaquoi] to
        drive. [Massaquoi] began speeding on Columbus Boulevard at 80
        miles per hour. The passengers in the car continuously asked
        [Massaquoi] to slow down. She slowed down and then sped up
        again. [Massaquoi] was driving unsteadily and an Uber driver
        recorded [Massaquoi’s] erratic driving with a camera. The camera
        captured [Massaquoi] cutting off other vehicles, speeding,
        swerving, and ultimately crashing into a PECO building.

        Matherlina Assouge, Ben Jimmy, and Kowo Jallah were passengers
        in the car when it crashed. Kowo Jallah and Ben Jimmy’s cause
        of death was blunt impact trauma resulting from the car crash
        while seated in the back seat. Matherlina Assouge suffered
        injuries and lacerations to her head and left leg. At the time of
        the collision, [Massaquoi’s] driver’s license was suspended and
        [her] blood alcohol content was 0.174%.
____________________________________________


3   75 Pa.C.S.A. § 3732.1(a).

4   75 Pa.C.S.A. § 3735(a).

5   75 Pa.C.S.A. § 3732(a).


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Trial Court Opinion, 11/14/2018, at 2.

        On December 11, 2017, the day scheduled for trial to begin, Massaquoi

elected to enter an open guilty plea to the aforementioned charges.            On

February 12, 2018, following receipt of a pre-sentence investigation report

(PSI) and a mental health evaluation, the trial court sentenced Massaquoi as

delineated above.         On February 19, 2018, Massaquoi filed a motion to

withdraw her guilty plea.         On February 21, 2018, she filed a motion for

reconsideration of sentence. The trial court denied both motions by operation

of law on June 20, 2018. The instant, timely appeal followed.6

        In her first issue,7 Massaquoi argues the trial court erred in denying her

post-sentence motion to withdraw her guilty plea. Massaquoi’s Brief, at 14.

Specifically, Massaquoi claims her guilty plea was the product of duress and

she is actually innocent of the crime. Id. at 15-16. However, Massaquoi is

not entitled to relief.

        Our standard of review for the denial of a post-sentence motion to

withdraw a guilty plea is well settled.          “[A] defendant who attempts to

withdraw a guilty plea after sentencing must demonstrate prejudice on the

order of manifest injustice before withdrawal is justified.        A showing of



____________________________________________


6 In response to the trial court’s order, Massaquoi filed a timely concise
statement of errors complained of on appeal on July 30, 2018. On November
14, 2018, the trial court issued an opinion.

7   For ease of disposition, we have reordered the issues in Massaquoi’s brief.

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manifest injustice may be established if the plea was entered into

involuntarily,   unknowingly,   or   unintelligently.”   Commonwealth        v.

Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011) (citation and internal

quotation marks omitted).       “[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. Kpou, 153 A.3d

1020, 1023 (Pa. Super. 2016) (citation omitted). “The law does not require

that appellant be pleased with the outcome of [her] decision to enter a plea

of guilty[.]” Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super.

1996) (en banc) (citation omitted), appeal denied, 701 A.2d 577 (Pa. 1997).

Further, when a defendant has entered a guilty plea, we presume she was

aware of what she was doing; it is her burden to prove the plea was

involuntary. Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super.

2001). Accordingly, where the record clearly shows the court conducted a

guilty plea colloquy and the defendant understood the nature of the charges

against her, the plea is voluntary. Id. In examining whether the defendant

understood the nature and consequences of her plea, we look to the totality

of the circumstances. Id. At a minimum, the trial court must inquire into the

following six areas:

      (1)   Does the defendant understand the nature of the charges to
            which [s]he is pleading guilty?

      (2)   Is there a factual basis for the plea?




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       (3)     Does the defendant understand that [s]he has a right to trial
               by jury?

       (4)     Does the defendant understand that [s]he is presumed
               innocent until [s]he is found guilty?

       (5)     Is the defendant aware of the permissible ranges of
               sentences and/or fines for the offenses charged?

       (6)     Is the defendant aware that the judge is not bound by the
               terms of any plea agreement tendered unless the judge
               accepts such agreement?

Id.   (citation   omitted).       Defense      counsel   or   the   attorney   for   the

Commonwealth, as permitted by the Court, may conduct this examination.

See Pa.R.Crim.P. 590, Comment. Additionally, the examination may consist

of both a “written colloquy that is read, completed, signed by the defendant,

and made part of the record,”8 and an on-the-record oral examination. Id.

       Here, the record reflects the trial court thoroughly inquired into all six

areas.       N.T. Guilty Plea Hearing, 12/11/2017, at 6-72.             Nevertheless,

Massaquoi claims she entered her guilty plea under duress. Massaquoi’s Brief,

at 15-16. In support of this contention, she points to the following exchange

during her plea colloquy.

       THE COURT: Did you discuss it with your attorney?

       [MASSAQUOI]: Yes.

       THE COURT: Are you satisfied with his services?
____________________________________________


8 The notes of testimony from the guilty plea hearing demonstrate Massaquoi
signed a written guilty plea colloquy. N.T. Guilty Plea Hearing, 12/11/2017,
at 25. However, the written plea colloquy is not included in the certified
record.

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      [MASSAQUOI]: (No verbal response.)

      THE COURT: Do you want to talk to her?

      (Brief pause.)

      [DEFENSE COUNSEL]: Your Honor, can I have a moment with the
      district attorney?

      (Brief pause.)

      THE COURT: Off the record.

      (Off the record discussion held.)

      [DEFENSE COUNSEL]: I think I resolved the issue, Your Honor.
      She still intends to proceed by way of plea, Your Honor.

      THE COURT: Did you hear and understand the various questions
      I've asked you?

      [MASSAQUOI]: Yes.

      THE COURT: Have you answered truthfully so far?

      [MASSAQUOI]: Yes.

      THE COURT: The next question I ask before we hear from the
      district attorney is are you satisfied with the services of your
      attorney?

      [MASSAQUOI]: Yes.

N.T. Guilty Plea Hearing, 12/11/2017, at 52-54.

      We see nothing in the exchange that demonstrates Massaquoi’s plea

was the product of duress. At most, the exchange shows Massaquoi had some

question or doubt, which counsel resolved, and the plea hearing continued.

Moreover, we note Massaquoi specifically stated she was pleading guilty of her


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“own free will.” Id. at 52, 67. We have long held a defendant binds herself

by statements made at a plea hearing and cannot assert claims that contradict

such statements. Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa.

Super. 2002).     Thus, because the record reflects Massaquoi entered a

knowing, intelligent, and voluntary guilty plea, her claim does not merit relief.

      Massaquoi also maintains she is actually innocent of the crimes because

blood found on the driver’s seat was not hers, which, she argues, means she

was not the driver. Massaquoi’s Brief, at 15.

      This Court has stated:

      [Appellant] argues, instead, that his post-sentence assertion of
      innocence, alone, is enough to demonstrate the manifest injustice
      necessary to secure a post-sentence withdrawal of a guilty plea.
      Nothing in our jurisprudence supports such a proposition, which
      runs counter to established precepts that reject defendant
      attempts to disavow self-incriminating statements made at a plea
      hearing    absent    a   showing    of   coercion,   fundamental
      misunderstanding, or the like. Moreover, as noted above in our
      standard of review, our courts have recognized the relevance of
      an assertion of innocence only in the pre-sentence context,
      explaining that the assertion may represent a fair and just reason
      for pre-sentence withdrawal of a guilty plea.

      Indeed, this Court has held that post-sentence claims of innocence
      do not demonstrate manifest injustice, see Commonwealth v.
      Myers, 434 Pa.Super. 221, 642 A.2d 1103, 1108 (1994) (holding
      “[a] defendant’s post-sentence recantation of guilt does not rise
      to the level of prejudice on the order of manifest injustice
      sufficient to require that he be permitted to withdraw his plea of
      guilty.”), and Appellant presents no meaningful argument or legal
      theory on which to distinguish his case from such precedent. This
      is particularly so where, again, Appellant advances no claim of an
      unknowing, involuntary, or unintelligent plea. Accordingly, we
      discern no merit to the present appeal.




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Kpou, supra at 1024-1025 (quotation marks, footnote, and most citations

omitted).

       Here, Massaquoi has not demonstrated, as discussed above, her guilty

plea was unknowing, involuntary, or unintelligent.    Moreover, her belated

claim that she was not the driver directly contradicts her statements and

admissions at both the plea hearing and sentencing. See N.T. Guilty Plea

Hearing, 12/11/2017, at 62; N.T. Sentencing, 2/18/2018, at 15, 24-25.

Massaquoi cannot now contradict those statements.9 See Kpou, supra at

1024-1025; Muhammed, supra at 384. This claim does not merit relief.

       In her second claim, Massaquoi challenges the discretionary aspects of

her sentence, claiming the trial court failed to put sufficient reasons on the

record to justify sentencing her outside the aggravated range of the




____________________________________________


9 Moreover, Massaquoi’s claim that, because the blood found on the driver’s
seat was not hers, she was not the driver is less than compelling. Massaquoi
does not point to any evidence the accident caused her any injury. Rather,
the evidence showed the front-seat passenger was bleeding from both her
head and her left leg. See PCRA Ct. Op., at 2. Moreover, the Commonwealth
gave an exceedingly detailed summarization of the evidence it would have
presented at trial. That evidence demonstrated there was a video of the
incident. The surviving passenger would have testified Massaquoi was the
driver and that there were three passengers in the car. A Good Samaritan,
who arrived on the scene moments after the accident, would have testified he
pulled Massaquoi from the driver’s seat. First responders would have testified
that, when they arrived on the scene, there were two deceased men in the
back seat of the car and the front-seat passenger was stuck in the passenger
seat. They had to pull the passenger door off to remove her. See N.T. Guilty
Plea Hearing, at 56-62. Massaquoi admitted that all these facts were accurate.
Id. at 62.

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sentencing guidelines and solely focused on the seriousness of the offense.

Massaquoi’s Brief, at 10-14.

      The principles that guide our review are well settled:

      . . . [t]he right to appeal a discretionary aspect of sentence is not
      absolute. Rather, where an appellant challenges the discretionary
      aspects of a sentence, an appellant’s appeal should be considered
      as a petition for allowance of appeal.            As we stated in
      Commonwealth v. Moury, 2010 PA Super 46, 992 A.2d 162 (Pa.
      Super. 2010):

            An appellant challenging the discretionary aspects of
            his sentence must invoke this Court’s jurisdiction by
            satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (1) whether 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 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.A. § 9781(b).

            Id. at 170. Whether a particular issue constitutes a
            substantial question about the appropriateness of
            sentence is a question to be evaluated on a case-by-
            case basis.

Commonwealth v. Radecki, 180 A.3d 441, 467 (Pa. Super. 2018)

(quotation marks and most citations omitted).

      Massaquoi has complied with the procedural requirements for her

discretionary aspects of sentencing challenge by filing a timely appeal to this


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Court, preserving the sentencing issues in her post-sentence motions, and

including a Pa.R.A.P. 2119(f) statement in her brief. The final requirement is

that Massaquoi’s Rule 2119(f) statement must raise a substantial question.

      We have stated a substantial question exists

      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. [W]e
      cannot look beyond the statement of questions presented and the
      prefatory [Rule] 2119(f) statement to determine whether a
      substantial question exists.

Radecki, supra, 180 A.3d at 468 (quotation marks and citations omitted).

Here, both of Massaquoi’s contentions raise a substantial question.        See

Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009) (“[A]n

averment that the court sentenced based solely on the seriousness of the

offense and failed to consider all relevant factors raises a substantial

question.”); Commonwealth v. Twitty, 876 A.2d 433, 439 (Pa. Super.

2005) (claim trial court did not state sufficient reasons for sentence outside

guidelines raises substantial question), appeal denied, 892 A.2d 823 (Pa.

2005).

      In reviewing a challenge to the discretionary aspects of the sentence,

we recognize:

      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

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      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted), appeal denied, 125 A.3d 1198 (Pa. 2015).

      Massaquoi complains the trial court sentenced her outside the guidelines

without stating sufficient reasons. We have stated:

            When evaluating a challenge to the discretionary
            aspects of sentence . . . it is important to remember
            that the sentencing guidelines are advisory in nature.
            If the sentencing court deems it appropriate to
            sentence outside of the guidelines, it may do so as
            long as it offers reasons for this determination. [O]ur
            Supreme Court has indicated that if the sentencing
            court proffers reasons indicating that its decision to
            depart from the guidelines is not unreasonable, we
            must affirm a sentence that falls outside those
            guidelines.

      A sentencing court, therefore, in carrying out its duty to impose
      an individualized sentence, may depart from the guidelines when
      it properly identifies a particular factual basis and specific reasons
      which compelled [it] to deviate from the guideline range.

Commonwealth v. Schull, 148 A.3d 820, 836 (Pa. Super. 2016) (citations

and quotation marks omitted, emphasis in original).

      Here, the trial court had the benefit of a PSI, a mental health report, a

sentencing memorandum from the Commonwealth, the testimony of three

witnesses on behalf of Massaquoi, Massaquoi’s own statements during

allocution, and a video of the incident. See N.T. Sentencing, 2/18/2018, at

4, 16-19, 22. It acknowledged Massaquoi had both mental health and drug

and alcohol issues. See id. at 26. It further noted Massaquoi’s past as a child


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of war, and that she was a parent.       Id. at 26-27.     It took into account

Massaquoi was on both probation and diversion at the time of the offense. Id.

at 19-20. Further, the trial court highlighted that Massaquoi pleaded guilty

rather than going to trial.   See id. at 27.    Immediately prior to imposing

sentence, the trial court explained, in detail, the basis for the sentence and

why it felt it was necessary to go outside the guidelines. See id. at 25-28.

      Therefore, Massaquoi’s claim that the sentencing court abused its

discretion in sentencing her outside the guidelines without expressing

sufficient reasons on the record is meritless. See Commonwealth v. Walls,

926 A.2d 957, 966-68 (Pa. 2007) (so long as trial court imposed individualized

sentence   that   was   reasonable   there    was   no   abuse   of   discretion);

Commonwealth v. Davis, 737 A.2d 792, 799 (Pa. Super. 1999) (affirming

sentence outside guidelines where trial court was informed of PSI, heard

testimony, and allowed defendant to speak before imposing sentence);

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. Super. 1988) (finding

statement of reasons sufficient where trial court had PSI and was presumed

to have been aware of and weighed defendant’s history, character, and

mitigating factors). This claim does not merit relief.

      Massaquoi also contends the trial court only focused on the seriousness

of the crime in imposing sentence. Massaquoi’s Brief, at 13-14. The record,

as discussed above, belies this contention.    Here, the trial court considered

the PSI and mental health evaluation; the testimony of Massaquoi and her


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witnesses; and the circumstances surrounding the incident, namely, that

Massaquoi was not the original driver and, despite being drunk and having a

suspended license, insisted on driving in a reckless manner over the protests

of her friends.   Thus, it is obvious the sentencing court was aware of and

carefully reviewed all the facts and made an intelligent and informed decision

as to Massaquoi’s sentence.

      In light of the foregoing, Massaquoi is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/19




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