Com. v. Marion, M.

J-A13013-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL MARION :
:
Appellant : No. 1658 EDA 2021
Appeal from the Judgment of Sentence Entered July 16, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007778-2019
BEFORE: OLSON, J., DUBOW, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED JUNE 16, 2022
Appellant, Michael Marion, appeals from the judgment of sentence
entered on July 16, 2021. We affirm.
On November 5, 2020, Appellant entered an open guilty plea to a
number of crimes, including: unlawful contact with a minor, unlawful
restraint, endangering the welfare of children, corruption of minors, indecent
exposure, indecent assault, and attempted rape.1 During the guilty plea
hearing, Appellant agreed that the following facts supported his plea:
On or about July 16, 2019, in the City [] of Philadelphia, [the
victim, A.W., (hereinafter “the Victim”)] was visiting her
biological father, [Appellant], at his apartment. She was 14
years old at the time.
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1 18 Pa.C.S.A. §§ 6318(a)(1), 2902(c)(1), 4304(a)(1), 6301(a)(1)(i),
3127(a), 3126(a)(8), and 901(a), respectively.
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During the afternoon to evening hours, [Appellant] invited
[the Victim] into his bedroom to watch a movie. At that point,
while [the Victim] was [lying] in [Appellant’s] bed,
[Appellant] began massaging [the Victim’s] back. Then he
instructed [the Victim] to turn[] over and face him. He then
kissed her on the mouth. After kissing her on the mouth,
[Appellant] told [the Victim] he had been waiting to do this
for a long time.
He then maneuvered [the Victim’s] body into an upright
seated position, took off her shirt and took off her bra. He
then licked her breasts. At this point, [Appellant] then
[straddled the Victim’s] body so that he was sitting on her
chest.
At this point his clothes were also off and his [erect penis]
was mere centimeters from [the Victim’s] face.
[Appellant] then maneuvered his penis down to [the Victim’s]
vagina while her underwear was still on and began rubbing it
against her vagina. [Appellant] then grabbed [the Victim’s]
hand, brought her hand to his penis where she detected a
liquid substance.
[The Victim] advised [Appellant] that she had to use the
bathroom. She went to the bathroom and began recording
on her cell phone. On the video recordings she indicated that
[Appellant] had just sexually assaulted her.
She exited the bathroom shortly thereafter with the video still
recording. There, she capture[d Appellant] with his clothes
off, and he [said]: What are you doing? And then
apologize[d. The Victim] scream[ed] at him that he is sick.
She then [fled Appellant’s] residence without shoes on in the
pouring rain, begging strangers to call the police. One
stranger did call the police. [The Victim] ultimately called the
police later.
When [the] police responded, [Appellant] was no longer
present. He had fled the residence.
Ultimately, [the] police were able to come in contact with
[Appellant] when his sister responded to the scene. Police
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made contact with [Appellant] and advised him to return. He
said he did not want to return because he was afraid of being
arrested because he was on probation. They indicated that
it would be in his best interest to return.
Ultimately, a DNA sample was recovered from [the Victim’s]
breasts revealing the presence of [Appellant’s] saliva.
N.T. Guilty Plea Hearing, 11/5/20, at 8-10.
During the hearing, the trial court inquired as to whether Appellant’s
plea was knowing, intelligent, and voluntary. In relevant part, the trial court’s
examination occurred as follows:
[Trial Court]: How old are you, sir?
[Appellant]: [48].
[Trial Court]: How far did you go in school?
[Appellant]: I just got my GED. I'm actually a pest control
agent. I've been doing pest control for 17 years.
[Trial Court]: I'm just going to ask you to keep your voice up
so that the --
[Appellant]: Oh, I'm sorry. I'm deaf in this ear. So I'm afraid
I'm going to talk [too] loud. (Indicating.)
[Trial Court]: I think under these circumstances that's
unlikely. So go ahead.
Have you ever been or are you currently being treated for
any mental illness?
[Appellant]: Yeah, I just found out recently that I have
[post-traumatic stress disorder (“PTSD”)]. I just found out
that in June. When I five years old, my aunt tried to kill me,
and I'd been suffering from that essentially since I was five
years old. She tried to stab me to death, and I have been
dealing with that all of my life.
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So I didn't know that until I was arrested and they evaluated
me in the jail in the prison system.
[Trial Court]: Are you being currently treated for any mental
illness?
[Appellant]: I am trying to get it. The thing is [coronavirus]
is not, they're not allowing me to get it because they can't
have so many people contact. They got to set up in prison
system now. I was getting it earlier. I was getting it before
the [coronavirus].
[Trial Court]: So you're currently not being treated?
[Appellant]: No, not now. For safety reasons, I was moved to
a different jail because there was an attempt on my life inside
the prison system. I was at [Philadelphia Industrial Correction
Center] but now they moved me to [Curran-Fromhold
Correctional Facility] for security reasons because there was
an attempt on my life.
[Trial Court]: Are you taking any prescription drugs today?
[Appellant]: No.
[Trial Court]: Are you under the influence of any drugs or
alcohol today?
[Appellant]: No, I'm not.
[Trial Court]: Is there anything that would prevent you from
understanding what's happening here in [court] today, sir?
[Appellant]: Other than I'm deaf. I'm pretty much deaf, but
other than that I'm hearing impaired. I have a hearing aids
but I don't have them because they threw them out in a
shake down[.]
[Trial Court]: Have you been able to understand everything
that's been said?
[Appellant]: As far as -- yeah. I can hear and read lips at the
same time.
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[Trial Court]: And you were able to hear everything that [the
Assistant District Attorney] said and everything that [the
Victim] said[?]
[Appellant]: I heard most of it. I think I heard most of it. I
think I did. I hope I did.
[Trial Court]: I'm going to rely on the representation of your
attorney who stated that you understood the recitation of
facts that [the Assistant District Attorney] presented and you
did not wish to add anything to it. And you agreed with the
recitation of facts[.]
...
[Appellant’s Counsel]: To that point Your Honor, what I was
saying is [Appellant] in our discussion without getting into
the details of it was able to point out specific things that [the
Assistant District Attorney] said on the record. I'm very
satisfied that he understood everything the Commonwealth
said.
[Trial Court]: Thank you very much, [Appellant’s Counsel].
N.T. Guilty Plea Hearing, 11/5/20, at 15-19.
The trial court accepted Appellant’s plea and scheduled sentencing for a
later date.
Appellant’s sentencing occurred on June 25, 2021 and July 16, 2021.2
During the June 25, 2021 proceeding, Appellant orally moved to withdraw his
____________________________________________
2 Appellant failed to ensure that the certified record included the transcript of
the July 16, 2021 sentencing hearing and our review of the certified record
does not demonstrate that Appellant ordered or paid for this transcript.
Further, our independent attempts to obtain a copy of the July 16, 2021
sentencing hearing failed. As we have explained:
The fundamental tool for appellate review is the official record of
the events that occurred in the trial court. To ensure that an
(Footnote Continued Next Page)
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guilty plea. See N.T. Sentencing, 6/25/21, at 19. As Appellant’s attorney
explained during the hearing, Appellant wished to withdraw his guilty plea
because: “he didn’t understand, because of his mental strain, because of the
time in jail, what was happening at his guilty plea.” Id. at 34. The trial court
denied Appellant’s motion and continued the sentencing hearing until July 16,
____________________________________________
appellate court has the necessary records, the Pennsylvania Rules
of Appellate Procedure provide for the transmission of a certified
record from the trial court to the appellate court. The law of
Pennsylvania is well settled that matters which are not of record
cannot be considered on appeal. Thus, an appellate court is limited
to considering only the materials in the certified record when
resolving an issue. In this regard, our law is the same in both the
civil and criminal context because, under the Pennsylvania Rules
of Appellate Procedure, any document which is not part of the
officially certified record is deemed non-existent – a deficiency
which cannot be remedied merely by including copies of the
missing documents in a brief or in the reproduced record.
...
Our law is unequivocal that the responsibility rests upon the
appellant to ensure that the record certified on appeal is complete
in the sense that it contains all of the materials necessary for the
reviewing court to perform its duty.
...
With regard to missing transcripts, the Rules of Appellate
Procedure require an appellant to order and pay for any transcript
necessary to permit resolution of the issues raised on appeal.
Pa.R.A.P.1911(a). When the appellant . . . fails to conform to the
requirements of Rule 1911, any claims that cannot be resolved in
the absence of the necessary transcript or transcripts must be
deemed waived for the purpose of appellate review.
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (quotation
marks and citations omitted).
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2021. At that time, the trial court sentenced Appellant to serve an aggregate
term of seven-and-one-half to 15 years in prison, followed by 11 years of
probation, for his convictions. See Trial Court Opinion, 10/5/21, at 5.
Appellant did not file a post-sentence motion; however, Appellant filed a
timely notice of appeal from his judgment of sentence. Appellant raises two
issues to this Court:
1. Whether the trial court’s acceptance of [Appellant’s] guilty
plea constitutes manifest injustice because [Appellant’s]
diminished mental health condition rendered him incapable
of entering a knowing, intelligent, and voluntary guilty
plea[?]
2. Whether the sentencing court abused [its] discretion by
imposing a sentence that was not based upon the gravity of
the violation, the extent of [Appellant’s] record, his prospect
of rehabilitation, nor an assessment of the mitigating and
aggravating factors . . . [?]
Appellant’s Brief at 8.
First, Appellant claims that the trial court erred when it denied his oral
motion to withdraw his guilty plea. “We review a trial court's ruling on a
[pre-]sentence motion to withdraw a guilty plea for an abuse of discretion.”
Commonwealth v. Islas, 156 A.3d 1185, 1187 (Pa. Super. 2017) (citations
omitted). Pennsylvania Rule of Criminal Procedure 591(A) provides that, “[a]t
any time before the imposition of sentence, the court may, in its discretion,
permit, upon motion of the defendant, or direct, sua sponte, the withdrawal
of a plea of guilty or nolo contendere and the substitution of a plea of not
guilty.” Pa.R.Crim.P. 591(A).
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“Although there is no absolute right to withdraw a guilty plea, properly
received by the trial court, it is clear that a request made before sentencing
should be liberally allowed.” Commonwealth v. Kpou, 153 A.3d 1020, 1022
(Pa. Super. 2016) (quotation marks, citations, and corrections omitted). “[I]n
determining whether to grant a pre[-]sentence motion for withdrawal of a
guilty plea, the test to be applied by the trial courts is fairness and justice.”
Commonwealth v. Elia, 83 A.3d 254, 262 (Pa. Super. 2013) (quotation
marks and citations omitted). Therefore, if the defendant provides a fair and
just reason for wishing to withdraw his plea, the trial court should grant it
unless it would substantially prejudice the Commonwealth. Commonwealth
v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015).
On appeal, Appellant claims that his plea was not knowingly,
intelligently, and voluntarily entered because, during the plea hearing, he
“presented evidence of his diagnosis of [PTSD] and adjustment disorder with
anxiety.” Appellant’s Brief at 14. According to Appellant, these disorders
made it so that he “did not understand the charges to which he had entered
the guilty plea.” Id. This claim fails. As the trial court explained:
At the plea hearing of November 5, 2020, [Appellant] agreed
to the facts as recited by the Commonwealth. The [trial]
court received a written guilty plea colloquy signed by
[Appellant], listing the charges and acknowledging that
[Appellant] understood the nature of the charges, that there
was a factual basis for the plea, that [Appellant] understood
he had a right to a trial by jury, that he was presumed
innocent until proven guilty, that he was aware of the range
of sentences and/or fines for which he was charged, and that
the judge was not bound by the terms of the agreement. The
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[trial] court thereafter [extensively questioned Appellant
regarding his mental health and his ability to understand the
charges and the proceedings].
...
The court's questioning established that [Appellant’s] guilty
plea was knowing, voluntary, and intelligent. [Appellant]
testified he was not taking prescription medication, or under
the influence of any alcohol or drugs. [Appellant] stated that
he understood the nature of the charges against him; that
his attorney reviewed the written guilty plea colloquy form
with him; that he signed the guilty plea form; that he knew
he could be sentenced up to 87 years and fined up to
$110,000[.00]; that he was giving up his right to a jury trial;
and that the plea would limit his appellate rights. While
[Appellant] noted he was deaf in one ear, he responded to
the [trial] court's questioning with little difficulty.
[Appellant’s] counsel further confirmed that [Appellant]
understood the factual basis and events at the plea hearing,
and stated his belief that [Appellant] understood.
...
[Appellant’s] assertion that he could not understand counsel
at the plea hearing is belied by the record, which does not
reflect that [Appellant] expressed any difficulty, and that
[Appellant’s] counsel confirmed that [Appellant] understood
the proceedings.
Trial Court Opinion, 10/5/21, at 7-12 (citations omitted).
The trial court’s factual findings are supported by the record and its
denial of Appellant’s oral motion to withdraw the guilty plea was within its
discretion. Therefore, Appellant’s first claim on appeal fails.
Next, Appellant claims that the trial court abused its discretion by
imposing a manifestly excessive sentence. This claim is waived, as Appellant
did not raise his claim at sentencing or in a post-sentence motion. See
Pa.R.Crim.P. 720; Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are
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waived and cannot be raised for the first time on appeal”); Commonwealth
v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (“issues challenging the
discretionary aspects of a sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect of a sentence is
waived”).
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2022
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