J

- S27027

- 20

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

COMMONWEALTH OF PENNSYLVANIA

v.

KAISHA DUGGINS

Appellant : : : : : : : : : 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 Philadelphi a County Court of Common Pleas following
her open guilty plea s to volunt ary 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

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2503(b).

2 18 Pa.C.S. §§ 903(a), 907.J

- S27027

- 20

- 2

-

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 join t plea hearing on January 2 9, 2018,

where the Commonwealth presented the following factual summary

. See N.T.
Guilty Plea H’rg , 1/29/18, at 53

- 5 4

. 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 D ecedent 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 J o achim, arrived at the gas station , exited their
van and immediately attacked Decedent. Three juvenile s
— 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 beat en about the head and

bod y with various objects. ” Id. at 53

. Appellant struck Decedent with a

_________________ __________ ______ ____ _______

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’r g , 1/29/18, at 53. However, Appellant’s sentencing memorandum stated Appellant and Joachim are sister s

. See Appellant’s Sentencing Memorandum, 5/25/18, at 7.J

- S27027

- 20

- 3

-

hammer, while Gillard beat him with a wooden chair l eg

. Joachim also
attempted to blind Decedent by spraying mace into his eyes, but instead
sprayed one of the juveniles involved. Rec overed v ideo 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 juvenile s invo lved

.
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 deteriorate d 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 frac tured 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 w as homicide. Id.

On Janu ary 29, 2018, Appellant and both co

- defendants entered open
guilty plea s to voluntary manslaughter, conspiracy , and PIC. 5 N.T. , Guilty Plea

_________________ __________ ______ ____ _______

5 Gillard and Joachim each took direct appeals to this Court, challenging the discretion ary 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). ThisJ

- S27027

- 20

- 4

-

H’r g , at 6

- 7 , 56

- 58 ; see Written Guilty Plea Colloquy , 1/29/18

. E ach

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 vo luntary
manslaughter and conspiracy ; and a consecutive term of 2 1/2 years to 5
years’ incarceration for PIC. App ellant’s aggregate term was 22 1/2 to 45
years’ incarceration. The court reviewed the sentencing memorandum,

summarized the information there in, and acknowledged an upward deviation
from the Sentencing Guidelines. 6 N.T. Sentencing H’rg , 6/29/18, at 9, 11 1

-

1 3. 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 file d a timely pro se

Post Conviction Relief Act 7 (PCRA) petition on December 28, 2018. The trial

_________________ __________ ______ ____ _______ Court affirmed both co

- defendants’ judgments of sente nces 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 d eadly 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.J

- S27027

- 20

- 5

-

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 t unc . 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 discre tion 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

constitu tes 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 no t consider a variety of factors when it fashioned
her sentence. Appellant stresses she accepted responsibility and entered intoJ

- S27027

- 20

- 6

-

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 n ot 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) ( ci tation omitted). Before we reach the merits of a discretionary
sentencing iss ue, 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)

_________________ __________ ______ ____ _______

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 a lcohol to swallow down the pills.” See Appellant’s Sentencing Memorandum, 5/28/15, at 8.J

- S27027

- 20

- 7

-

(citation omitted).
Appellant complied with the pro cedural 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 s tatement 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 discreti on 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) (citationJ

- S27027

- 20

- 8

-

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. 200 7) (“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 d epart 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 s tatement of the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S.[ ] §9721(b).
The requirement that the court provide a contemporaneousJ

- S27027

- 20

- 9

-

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 defen dant’ s character and weighed those considerations along with mitigating statutory factors.” F urther, 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. W hile 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 psy chiatric disorder.J

- S27027

- 20

- 10

- 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 degr ee 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. , Se ntencing H’r g , 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 pris on for voluntary manslaughter and 40 to 54
months in prison for conspiracy to commit voluntary manslaughter. N.T. ,
Sent encing H’rg , at 10. The court, as set forth above, stated its reasons for
imposing a sente nce of ten years’ imprisonment. The trial court acknowledged
Appellant’s PSI and it thoroughly considered Appellant’s nature and history.J

- S27027

- 20

- 11

-

It also had an opportunity to observe Appellant and weigh the information in
the PSI concerning her character as we ll 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 explain ed 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

. ” A ccordingly, Appella nt is not entitled to

relief.
Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7 /15/2020