Com. v. Chambers, E.

• Court: Superior Court of Pennsylvania
• Decided: October 26, 2021
• Docket: 393 EDA 2020
• Status: Unpublished

Opinion

J-A21032-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EAVIN CHAMBERS : : Appellant : No. 393 EDA 2020

Appeal from the Judgment of Sentence Entered December 3, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003090-2018

BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 26, 2021

Appellant Eavin Chambers appeals the judgment of sentence entered by

the Court of Common Pleas of Philadelphia County after Appellant pled guilty

to aggravated assault and strangulation. Appellant challenges the trial court’s

denial of his motion to withdraw his guilty plea, the discretionary aspects of

his sentence, and the revocation of his bail following the denial of his post-

sentence motion. After careful review, we affirm.

The trial court summarized the factual background of the case as

follows:

The underlying case stems from the arrest of Appellant for beating and strangling the complainant, Shalema McLean, between 3:00 p.m. and 4:00 p.m. on December 22, 2017 in Appellant’s rented residence at 5551 Ludlow Street in the City and County of Philadelphia. On that date, in the basement of the

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* Former Justice specially assigned to the Superior Court. J-A21032-21

residence, the complainant and Appellant were involved in a verbal argument regarding their relationship.

The argument had been triggered by a female texting Appellant’s phone then calling the complainant’s phone. Appellant found a condom in the complainant’s back pocket and retorted “you want to jump on my back about shit and you got a condom in your pocket.” (See Philadelphia Police Department Investigation Report No. 2017-18-085872.1, 12/27/17). Appellant then began beating the complainant, punching and kicking her several times while choking her. The complainant had attempted to defend herself, but was overpowered by Appellant.

During this attack, Appellant forcibly removed the complainant’s Pandora bracelet, took her cell phone and physically forced her to stay in his basement. After approximately two hours, the complainant was [able to] escape Appellant’s basement and notified a family member of what had taken place while she was at 5551 Ludlow St. As a result of the assault, [the] complainant suffered a fractured and swollen black right eye, numerous bruises and scratches on both arms, and a contusion behind her right ear. Id. The complainant was treated for her injuries at Jefferson Hospital on December 23, 2017.

Trial Court Opinion (T.C.O.), 12/14/21, at 1-2.

In connection with this attack, Appellant was initially charged with

aggravated assault, robbery, strangulation, terroristic threats, unlawful

restraint, simple assault, and recklessly endangering another person.

Appellant pled not guilty on all charges and proceeded to a jury trial.

On December 3, 2019, Appellant’s jury trial began and the complainant

testified at trial. Following the complainant’s testimony, Appellant agreed to

enter a negotiated guilty plea to aggravated assault and strangulation in

exchange for the remaining charges to be dropped. The parties agreed that

Appellant would be sentenced to four to ten years’ imprisonment for the

aggravated assault charge and a four-year term of probation that would run

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concurrently to the parole period. The written plea colloquy did not discuss

Appellant’s post-sentencing bail.

That day, defense counsel requested a colloquy on the record in which

he noted that Appellant would agree to a four-to-ten year prison term with a

surrender date forty-five days later. While the trial court initially indicated

that it would deny Appellant’s request for post-sentence bail, which the trial

court considered an invitation for Appellant to flee, Appellant pleaded with the

trial court to delay his incarceration for forty-five days to allow him to see

family members including his mother, sister, and two children, all of whom

live out-of-state. While Appellant acknowledged that he was not permitted to

leave Pennsylvania while on bail, he claimed that these family members would

come to Pennsylvania to see him before he was incarcerated. Appellant also

indicated that he had health issues that he wished to address with medical

providers before his incarceration.

The trial court conducted an oral colloquy in which Appellant admitted

to the factual basis for his pleas as presented by the Commonwealth, indicated

that he was satisfied with his counsel’s representation and indicated that he

fully understood the terms and conditions of his negotiated sentence.

Thereafter, on the same day, December 3, 2019, the trial court entered

a sentencing order incorporating the sentencing terms as agreed by the

parties to four to ten years’ imprisonment with a four-year probation term

concurrent to Appellant’s parole period. In addition, the trial court included

other conditions including, inter alia, required drug treatment, drug testing,

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and a stay away order from the complainant. The trial court reconsidered

Appellant’s request for a deferred surrender date, revoked its decision to deny

bail, and indicated that Appellant’s sentence would begin on January 17, 2020.

On December 13, 2019, Appellant filed a post-sentence motion in which

he sought to withdraw his guilty plea based on his assertion of his innocence.

Appellant requested a new trial “to contest the false charges against him” and

indicated that he intended to call three witnesses to testify as to the

complainant’s character for violence. In addition, Appellant requested that

the trial court to reconsider his sentence “as a lesser term of total confinement

would suffice.” Post-sentence motion, 12/13/19, at 2. Appellant did not

develop his sentencing claim beyond this bald assertion.

On December 19, 2019, the trial court held an evidentiary hearing, at

which Appellant presented only one of his three proposed witnesses. Joyce

Nwogu, Appellant’s maternal aunt, testified that on an unknown rainy night in

2017, which was admittedly not the night of the assault at issue, she observed

the complainant walking down the street barefoot. When Nwogu asked where

her shoes were, the complainant indicated that something had happened with

her boyfriend, and asked Nwogu to take her back to Appellant’s house. When

they returned, Appellant and the complainant had a verbal altercation in

Nwogu’s car after which Nwogu dropped the Appellant and the complainant

off at a grocery store. Nwogu indicated that Appellant and the complainant

did not engage in a physical altercation.

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After Nwogu’s testimony, Appellant asked the trial court to grant him a

new trial to bring forth additional character witnesses. The trial court

reminded Appellant that he had pled guilty in the middle of his first trial and

had ample opportunity to decide whether to proceed with trial. Appellant

denied asking the Court to withdraw his guilty plea and again admitted his

guilt, stating “I never [said] I wasn’t guilty, Judge.” When the trial court

confronted Appellant with the fact that Appellant’s post-sentence motion

asserted his innocence and asked to withdraw his guilty plea, Appellant

acknowledged these points and conceded that he made these claims to ask

for a reduced sentence.

At the conclusion of the hearing, the trial court denied Appellant’s post-

sentence motion. In addition, the trial court revoked Appellant’s bail as the

trial court felt Appellant posed a flight risk, posed a risk to the victim, and was

using the post-sentence motion to manipulate the system. Appellant was

taken into custody following the evidentiary hearing. On January 21, 2020,

Appellant filed a timely appeal and subsequently complied with the trial court’s

direction to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).1

Appellant raises the following issues on appeal:

1 On February 24, 2021, this Court dismissed the appeal as Appellant had failed to file a brief. On March 10, 2021, Appellant’s counsel filed a motion for reconsideration of the dismissal order and attached a completed brief. On April 5, 2021, this Court granted the application to reinstate this appeal.

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1. Did the court err in denying the motion to withdraw the guilty plea?

2. Did the court err in denying the motion to modify sentence?

3. Did the court err in incarcerating [Appellant] on December 19, 2019, in violation of the agreement reached on December 3, 2019, to let him surrender 45 days after the plea (original surrender date to be on January 17, 2020)? Having denied the motion to withdraw the guilty plea, did the court err in depriving [Appellant] the benefit of the bargain and did it so because [Appellant] filed a post sentence motion on December 13, 2019, in violation of the due process clauses of the federal constitution and the law of the land clause of the Pennsylvania constitution?

Appellant’s Brief, at 1-2.

We initially must discuss the fact that Appellant’s brief fails to comply

with our Rules of Appellate Procedure. Appellant includes no argument,

citation to case law, or relevant analysis to support his first two claims, but

instead focuses the argument section of his brief on solely on the third issue.

See Pa.R.A.P. 2119(a) (requiring the argument to include “such discussion

and citation of authorities as are deemed pertinent.”).

As such, we find that Appellant has waived the first two arguments due

to his failure to develop these claims on appeal. Commonwealth v.

McGrath, 255 A.3d 581, 588, n.5 (Pa.Super. 2021) (citing Commonwealth

v. Perez, 625 Pa. 601, 93 A.3d 829, 838 (2014) (the failure to develop an

appellate argument with citations to supporting authorities and the record is

waived)); Commonwealth v. Donoughe, 243 A.3d 980, 986 (Pa.Super.

2020) (emphasizing that “[i]t is not the role of this Court to formulate an

appellant’s arguments for him”).

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Thus, the only claim Appellant properly developed on appeal is his

challenge to the trial court’s decision to revoke his bail after the post-sentence

motion hearing despite its prior indication that Appellant would be permitted

to remain free on bail for forty-five days after sentencing.

Appellant suggests that the trial court erred in revoking his post-

sentence bail as Appellant argues that he was denied the “benefit of his

bargain” and should be allowed to withdraw his plea. Appellant cites generally

to Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495 (1971), which states

that “when a [guilty] plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of the

inducement or consideration, such promise must be fulfilled.” Id. at 262, 92

S.Ct. at 499.

In this case, however, Appellant’s guilty plea did not rest on the trial

court’s allowance of post-sentence bail as Appellant’s written plea colloquy did

not mention the denial of bail as a specific term in the plea bargain. While the

prosecutor did not oppose Appellant’s request for post-sentence bail at the

plea hearing, the prosecutor did not make any promises to Appellant

concerning post-sentence bail as a part of the plea agreement.

As such, we find that the record does not show that the trial court’s

initial decision to grant post-sentence bail was as a term of Appellant’s plea

agreement, but instead involved a necessary issue that had to be determined

by the trial court at the guilty plea hearing as the parties had negotiated a

sentence in the written plea colloquy signed by Appellant.

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We reject Appellant’s suggestion that the trial court’s initial decision at

the December 3, 2019 plea/sentencing hearing to accept Appellant’s proposed

deferred surrender date stripped the trial court of its future discretion to

review Appellant’s bail. This Court has held that, “[f]ollowing a verdict of

guilt[], a defendant has no state or federal constitutional right to bail. After

conviction and pending final disposition of all direct appeal proceedings,

allowance of bail in non-capital cases is left to the discretion of the trial court.”

Commonwealth v. McDermott, 547 A.2d 1236, 1242 (Pa.Super. 1988)

(citations omitted).

Our rules of procedure specifically provide that, after sentencing, “when

the sentence imposed includes imprisonment of [two] years or more, the

defendant shall not have the same right to bail as before verdict, but bail may

be allowed in the discretion of the judge.” Pa.R.Crim.P. 521(B)(2).2 In

emphasizing that Rule 521 does not give a defendant the right to bail, this

Court has clarified that “[t]he provisions of [Rule 521] set forth the procedural

rules adopted by our Supreme Court to govern the exercise of this discretion.”

McDermott, 547 A.2d at 1242 (citation omitted).

Rule 521(D) provides that the following procedure for the modification

of a defendant’s bail after verdict or after sentencing:

(1) When a defendant is eligible for release on bail after verdict or after sentencing pursuant to this rule, the existing bail order may be modified by a judge of the court of common pleas, upon the judge's own motion or upon motion of counsel for either party with ____________________________________________

2 Rule 521 was formerly codified at Pa.R.Crim.P. 4009-10.

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notice to opposing counsel, in open court on the record when all parties are present.

(2) The decision whether to change the type of release on bail or what conditions of release to impose shall be based on the judge's evaluation of the information about the defendant as it relates to the release criteria set forth in Rule 523. The judge shall also consider whether there is an increased likelihood of the defendant's fleeing the jurisdiction or whether the defendant is a danger to any other person or to the community or to himself or herself.

(3) The judge may change the type of release on bail, impose additional nonmonetary conditions as provided in Rule 527, or, if appropriate, impose or increase a monetary condition as provided in Rule 528.

Pa.R.Crim. P. 521.

When a trial court exercises its discretion to determine whether a

defendant should be released on bail and what conditions of bail should be

imposed, the trial court shall consider “all available information … relevant to

the defendant’s appearance or non-appearance at subsequent proceedings, or

compliance or noncompliance with conditions of the bail bond,” including the

following criteria:

(1) the nature of the offense charged and any mitigating or aggravating factors that may bear upon the likelihood of conviction and possible penalty;

(2) the defendant's employment status and history, and financial condition;

(3) the nature of the defendant's family relationships;

(4) the length and nature of the defendant's residence in the community, and any past residences;

(5) the defendant's age, character, reputation, mental condition, and whether addicted to alcohol or drugs;

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(6) if the defendant has previously been released on bail, whether he or she appeared as required and complied with the conditions of the bail bond;

(7) whether the defendant has any record of flight to avoid arrest or prosecution, or of escape or attempted escape;

(8) the defendant's prior criminal record;

(9) any use of false identification; and

(10) any other factors relevant to whether the defendant will appear as required and comply with the conditions of the bail bond.

Pa.R.Crim.P. 523.

The trial court in this case repeated several times that it had “grave”

and “extreme concerns” that Appellant would flee to avoid confinement if

Appellant was allowed to remain on post-sentence bail. Notes of Testimony

(N.T.), 12/19/19, at 66-70. Previously, the trial court shared its reluctance to

allow Appellant to have a deferred surrender date to visit with family members

who lived in different states, specifically his mother, who was in poor health

and lived in Florida. The trial court pointed out that Appellant was not

permitted to leave the state on bail and was concerned that post-sentence

bail was an “invitation to run.” N.T. 12/3/19, at 15. In addition, the trial court

also had expressed concern for potential danger to the victim. Id. at 20.

The trial court indicated that contextual circumstances caused it

reevaluate Appellant’s request for a forty-five day sentence deferment which

it characterized as a “thinly disguised deliberate effort by the Appellant to

manipulate the justice system.” T.C.O. at 17. While Appellant’s post-sentence

motion included a motion to revoke his guilty plea based on his innocence,

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Appellant told the trial court that he never said he was not guilty and indicated

that he never asked to withdraw his plea. N.T. 12/19/21, at 71.

When the trial court confronted him with the content of his post-

sentence motion, Appellant admitted he made those claims in an attempt to

reduce his sentence, which the parties had already negotiated before

Appellant entered his plea. Id. As such, the trial court found Appellant’s

claims to be disingenuous and deemed Appellant’s post-sentence motion to

be the “last ditch effort, short of flight to avoid consequences for [Appellant’s]

actions to which [Appellant] fully admitted.” N.T. 12/19/19, at 65.

Based on the foregoing reasons, we conclude that the trial court properly

exercised its discretion in revoking Appellant’s post-sentence bail and ordering

incarceration prior to the expiration of the forty-five days requested by

Appellant.

Judgment of sentence affirmed.

Judge Kunselman joins the memorandum.

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/26/2021

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