J-S82042-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :       IN THE SUPERIOR COURT OF
                                               :             PENNSYLVANIA
                       Appellee                :
                                               :
                         v.                    :
                                               :
MICHELLE CRAGLE,                               :
                                               :
                       Appellant               :       No. 1176 WDA 2017

                    Appeal from the PCRA Order July 31, 2017
                in the Court of Common Pleas of Lawrence County
               Criminal Division, at No(s): CP-37-CR-0000693-2012

BEFORE: BENDER, P.J.E., STEVENS, P.J.E.,* and STRASSBURGER, J.**

MEMORANDUM BY STRASSBURGER, J.:                FILED FEBRUARY 27, 2018

     Michelle Cragle (Appellant) appeals from the order dismissing her

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. We affirm.

     Appellant was charged with one count of corruption of minors at 18

Pa.C.S. § 6301(a)(1)(ii), a qualifying offense under the Sex Offender

Registration     and    Notification   Act   (SORNA)    pursuant   to   42   Pa.C.S.

§ 9799.14(b)(8). Appellant entered into a guilty plea on November 6, 2014.

In exchange for not being required to register as a sex offender, Appellant

pled guilty to corruption of minors at subsection 6301(a)(1)(i), a non-

qualifying offense, and was sentenced to a negotiated term of three years of

probation with an agreed-upon condition that she undergo sex offender

treatment.


* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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      On November 19, 2014, Appellant filed a motion to withdraw her guilty

plea due to a probationary condition restricting visitation with her children.

Following the appointment of new counsel and a hearing, Appellant requested

to withdraw the motion.     The trial court granted Appellant’s request, and

revised the challenged probationary condition to permit visitation in

accordance with an approved Children and Youth Services plan.           Order,

4/1/2015.

      On November 18, 2015, Appellant violated her probation by entering a

guilty plea to new charges. Her original sentence was revoked, and she was

sentenced on November18, 2015, to 127 days to two years of imprisonment,

followed by two years of probation with the original condition that she undergo

sex offender treatment.    Appellant did not file a post-sentence motion or

appeal.

      In October 2016, Appellant “learned through jailhouse rumor of

information indicating the mother of one of the witnesses at the preliminary

hearing … may have coached her son as to his testimony.”          PCRA Court

Opinion, 8/31/2017, at 2-3. Appellant pro se timely filed a PCRA petition on

November 9, 2016, alleging several claims for relief.        The PCRA court

appointed counsel, who filed amended petitions on February 17, 2017, and

February 22, 2017. The PCRA court held hearings on April 4, 2017, and June

1, 2017.    On July 31, 2017, the PCRA court issued an opinion and order

denying Appellant’s PCRA petition.


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      Appellant timely filed a notice of appeal. Both Appellant and the PCRA

court have complied with Pa.R.A.P. 1925. Appellant presents this Court with

the following claims of error.

      A. [] Appellant is entitled to a new trial on the basis of newly
         discovered evidence[1] and the PCRA court was in error for not
         granting a new trial based on said evidence.

      B. The sentence of [] Appellant to corruption of minors under 18
         Pa.[C.S. §] 6301(a)(1)(i) is illegal, non-applicable, and thus
         void ab initio tainting all the proceedings thereafter,
         in[]as[]much as the [sub]section under which Appellant pled
         guilty was for non-sexual offenders, however her sentence
         always included sex offender treatment and rules, as the
         legislature intended under 18 Pa.[C.S. §] 6301(a)(1)(ii) and
         the PCRA court was in error for not vacating said sentence and
         awarding Appellant a new trial[.]

Appellant’s Brief at 4 (unnecessary capitalization removed).

      “Our standard of review of a [PCRA] court order granting or denying

relief under the PCRA calls upon us to determine ‘whether the determination

of the PCRA court is supported by the evidence of record and is free of legal

error.’” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013)

(quoting Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).




1  While Appellant refers to “newly discovered evidence” she is actually
asserting an after-discovered evidence claim pursuant to 42 Pa.C.S.
§ 9543(a)(2). See Commonwealth v. Burton, 158 A.3d 618, 629 (Pa.
2017) (explaining that “the newly-discovered facts exception to the time
limitations of the PCRA, as set forth in subsection 9545(b)(1)(ii),
is distinct from the after-discovered evidence basis for relief delineated in 42
Pa.C.S. § 9543(a)(2)[]”).


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      Appellant first claims that the PCRA court erred in denying her motion

for a new trial based on after-discovered evidence. Appellant’s Brief at 10-

22. Prior to pleading guilty, Appellant appeared for a preliminary hearing at

which Detective Kevin Seelbaugh and two children (D.B. and S.L.) testified.

The after-discovered evidence at issue is a statement from fellow inmate Lisa

Jones-Orock, who alleges that she overheard D.B.’s mother (D.S.) imply that

she had attempted to coach D.B.’s preliminary hearing testimony. Appellant’s

Brief at 11.

      “When an appellant enters a guilty plea, she waives her right to

challenge on appeal all non-jurisdictional defects except the legality of [her]

sentence and the validity of [her] plea.” Commonwealth v. Pantalion, 957

A.2d 1267, 1271 (Pa. Super. 2008) (citation and quotation marks omitted).

However, the Supreme Court has held that “any after-discovered evidence

which would justify a new trial would also entitle a defendant to withdraw his

guilty plea.” Commonwealth v. Heaster, 171 A.3d 268, 273 n.6 (Pa. Super.

2017) (quoting Commonwealth v. Peoples, 319 A.2d 679, 681 (Pa. 1974)).

      Here, Appellant asks this Court to vacate her conviction and grant her a

new trial. Appellant’s Brief at 22.   However, because the after-discovered

evidence at issue concerns testimony from a preliminary hearing, following

which Appellant entered a guilty plea, we note that she actually is asking to

withdraw her guilty plea. Regardless, under Peoples our review is the same,

and we consider her claim mindful of the following.


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           To warrant relief, after-discovered evidence must meet a
     four-prong test: (1) the evidence could not have been obtained
     before the conclusion of the trial by reasonable diligence; (2) the
     evidence is not merely corroborative or cumulative; (3) the
     evidence will not be used solely for purposes of impeachment; and
     (4) the evidence is of such a nature and character that a different
     outcome is likely. At an evidentiary hearing, an appellant must
     show by a preponderance of the evidence that each of these
     factors has been met in order for a new trial to be warranted.

Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007) (citation

omitted).

     D.S. and Jones-Orock testified at the April 4, 2017 evidentiary hearing.

The PCRA court summarized the testimony as follows.

            [D.S.] testified first and was the mother of the witness in
     question[, D.B.].      [D.S.] was imprisoned on a retail theft
     conviction in October 2016. [D.S.] testified she did not know Lisa
     Jones-Orock well although they were together in Lawrence County
     Corrections at the same time and also shared a bunk. [D.S.]
     stated Jones-Orock did not like her and they only spoke briefly
     during the time they were incarcerated together. Regarding her
     children, [D.S.] stated she did not bring up the matter herself, but
     that people would ask her about the situation. [D.S.] could not
     identify the persons with [whom] she had the conversations.
     [D.S.] further described the conversations as not including much
     detail except to say [Appellant] “got off with it because her lawyer
     did a good job.” [D.S.] was then extensively examined as to
     whether she ever coached any of her children. [D.S.] denied this
     and also denied ever having told anyone at the county jail she
     coached her children to say anything.

           Lisa Jones-Orock contradicted [D.S.’s] testimony. Jones-
     Orock was imprisoned on charges of criminal homicide in October
     2016. Jones-Orock testified she was a bunkmate of … [D.S.], and
     she recalled a specific incident where [Appellant] and [D.S.] were
     separated, and [D.S.] and other girls on the block were talking
     about [Appellant’s] case. The testimony of [D.B.] came up in
     regards to a way in which he misspoke, at which point [D.S.] told
     the other girls “that’s not what I told him to say.”


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PCRA Court Opinion, 8/31/2017, at 4-5 (footnotes and unnecessary

capitalization omitted).2

      Appellant argues that the after-discovered evidence would have been

admissible at a trial, see Appellant’s Brief at 19-22, and “would be used by

Appellant to show that the information which the Commonwealth originally

charged her under was buil[t] on a false foundation.” Appellant’s Brief at 18.

      The PCRA court addressed this argument as follows.

            The evidence being presented as newly discovered is
      hearsay testimony that the mother of one of the witnesses at the
      preliminary hearing coached her son. The mother did not testify
      at the preliminary hearing herself. This evidence of coaching does
      not satisfy all the elements to obtain relief under the rules relating
      to newly-discovered[3] evidence, i.e., any evidence of coaching
      would only go to the credibility of her son’s testimony. Because
      evidence solely used to impeach credibility is outside the scope of
      the avenue for relief, [Appellant’s] [] PCRA [p]etition [wa]s
      denied.

PCRA Court Opinion, 8/31/2017, at 5.

      “A defendant seeking a new trial must demonstrate he will not use the

alleged after-discovered evidence solely to impeach a witness’s credibility.”

Commonwealth v. Griffin, 137 A.3d 605, 610 (Pa. Super. 2016) (citations

and quotation marks omitted). The PCRA court’s conclusion that the alleged




2 The PCRA court noted that both D.S. and Jones-Orock had crimen falsi
convictions in their pasts. PCRA Court Opinion, 8/31/2017, at 4 n.5, 5 n.7.

3Though the PCRA court used the wrong nomenclature, it correctly analyzed
Appellant’s claim under the after-discovered evidence framework.

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after-discovered evidence would not be used for anything beyond impeaching

D.B.’s credibility at a new trial is supported by the record. See id. (quoting

Commonwealth v. Castro, 93 A.3d 818, 827, n.13 (Pa. 2014)) (finding that

“[e]ven if his impeachment would ‘destroy and obliterate’ a witness, it is

still impeachment” and “a new trial could not be granted … on that basis

alone”).    Accordingly, we conclude that the PCRA court did not err in

determining that Appellant’s after-discovered evidence claim failed.

      Appellant alleges in her second claim that her sentence is illegal because

it includes sex offender treatment even though she pled guilty to a non-

qualifying offense. Appellant’s Brief at 22-27.

      We note at the outset that Appellant’s original sentence was imposed

pursuant to a negotiated plea agreement to include specifically a probationary

condition   of   sex   offender   treatment.   See    N.T.,   11/6/2014,      at   4

(acknowledging that her understanding of the negotiated sentence was “three

years probation; sexual offense treatment, yes”). Following revocation, the

same probationary conditions were requested by the Commonwealth, N.T.,

11/18/2015, at 4, and imposed by the court, Order, 11/18/2015.

      However, a defendant may not agree to an illegal sentence, even as part

of a negotiated plea agreement. See Commonwealth v. Gentry, 101 A.3d

813, 819 (Pa. Super. 2014).

            If no statutory authorization exists for a particular sentence,
      that sentence is illegal and subject to correction. An illegal
      sentence must be vacated. In evaluating a trial court’s application


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     of a statute, our standard of review is plenary and is limited to
     determining whether the trial court committed an error of law.

Commonwealth v. Hall, 994 A.2d 1141, 1144 (Pa. Super. 2010) (citation

omitted).   The statutory authorization for a sentencing judge to impose

probationary conditions is found in 42 Pa.C.S. § 9754.

     (a) General Rule.—In imposing an order of probation the court
     shall specify at the time of sentencing the length of any term
     during which the defendant is to be supervised, which term may
     not exceed the maximum term for which the defendant could be
     confined, and the authority that shall conduct the supervision.

     (b) Conditions generally.—The court shall attach such of the
     reasonable conditions authorized by subsection (c) of this section
     as it deems necessary to insure or assist the defendant in leading
     a law-abiding life.

     (c) Specific conditions.—The court may as a condition of its
     order require the defendant:

                                     ***

            (13) To satisfy any other conditions reasonably related to
            the rehabilitation of the defendant and not unduly restrictive
            of his liberty or incompatible with his freedom of conscience.

42 Pa.C.S. § 9754. “By its plain terms, Section 9754 empowers sentencing

courts to impose reasonable conditions of probation … to assist the defendant

in leading a law-abiding life, so long as the conditions do not result in a

violation of the defendant’s essential constitutional liberty and freedom of

conscience.” Commonwealth v. Hall, 80 A3d 1204, 1212 (Pa. 2013).

     The PCRA court responded to Appellant’s claim as follows.

          [Appellant] is correct in that her conviction for [c]orruption
     of [m]inors pursuant to 18 Pa.C.S. § 6301(a)(1)(i) is not a


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      SORNA-qualifying offense. However, the underlying facts of her
      specific circumstances justify the imposition of non-SORNA sex
      offender rules and regulations.        Specifically, [Appellant’s]
      [c]orruption of [m]inors charge arose out of circumstances where
      [Appellant] admits that she “[permitted] three juveniles to engage
      in sexual acts with each other while they were under [her]
      supervision and care.” [N.T. 11/6/2014, at 9.]

             Moreover, in the intervening time between [Appellant’s]
      initial sentence and the revocation …, compounding factors
      occurred. First, [Appellant’s] husband Larry Cragle was found
      guilty of several sex offenses relating a pattern of sexual conduct
      [at] the mutual home of Larry Cragle and [Appellant]. Second,
      despite being out on bail, Larry Cragle failed to appear for his
      sentencing as ordered, and after a manhunt lasting two weeks,
      Larry Cragle was found in his own house being harbored and
      protected by [Appellant]. Larry Cragle had been sheltered and
      hidden in a false room in the attic of their house. Despite the
      underlying charge not being a SORNA-qualifying offense, given
      the underlying facts of the case, as well as the subsequent
      intervening facts after initial sentencing on November 6, 2014, the
      addition of non-SORNA sex-offender rules as part of [Appellant’s]
      sentence [is] reasonably related to her rehabilitation.

PCRA Court Opinion, 8/31/2017, at 10-11 (footnotes omitted).

      Based on the foregoing, we conclude that the trial court did not err by

imposing this condition.     While Appellant negotiated a guilty plea to a

subsection that was not SORNA-qualifying, she was charged under a

subsection that was.       The conduct underlying her conviction and the

circumstances leading to her revocation establish that sex offender treatment

is appropriate.     Thus, this condition was reasonably related to her

rehabilitation, intended to assist her in living a law-abiding life, and did not

constitute a violation of her rights. Appellant’s sentence is not illegal, and she

agreed to that specific probationary condition at the time of her original plea.


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      Accordingly, we find that the PCRA court properly dismissed Appellant’s

petition, and as such, we affirm.

      Order affirmed.4



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




4  We note with displeasure that the PCRA court, Appellant, and the
Commonwealth cited to and relied upon unpublished memoranda in their
respective filings. See PCRA Court Opinion, 8/31/2017, at 9-10; Appellant’s
Brief at 17, 18, 25; Commonwealth’s Brief at 11. We remind all parties that
this is prohibited, and refer them to Superior Court Internal Operating
Procedure § 65.37(A) regarding citation to unpublished memoranda.

      An unpublished memorandum decision shall not be relied
      upon or cited by a Court or a party in any other action or
      proceeding, except that such a memorandum decision may be
      relied upon or cited (1) when it is relevant under the doctrine of
      law of the case, res judicata, or collateral estoppel, and (2) when
      the memorandum is relevant to a criminal action or proceeding
      because it recites issues raised and reasons for a decision affecting
      the same defendant in a prior action or proceeding. When an
      unpublished memorandum is relied upon pursuant to this rule, a
      copy of the memorandum must be furnished to the other party
      and to the Court.

210 Pa. Code § 65.37(A) (emphasis added).

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Date: 2/27/2018




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