J-S27027-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KAISHA DUGGINS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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