from the Judgment of Sentence February 8, 2016 In the Court
of Common Pleas of Dauphin County Criminal Division at No(s):
BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.
Barry G. Johnson-Daniels seeks review of the Judgment of
Sentence entered by the Court of Common Pleas after the entry
of Appellant's guilty plea. He challenges the court's
refusal to grant his pre-sentence Motion to withdraw his
guilty plea, and the discretionary aspects of his sentence.
After careful review, we affirm.
facts, as gleaned from the certified record, are as follows.
Police officers in Harrisburg received a tip from Crime
Stoppers that Appellant was selling drugs on a street in an
area known for drug trafficking. On December 24, 2013, a
confidential informant ("CI") working with the
Harrisburg Police Department purchased crack cocaine from
Appellant at a carwash on Derry Street at a planned meeting.
Police officers immediately arrested Appellant after a
struggle. Police officers recovered a bag containing
35 grams of cocaine laying under Appellant's body once
they subdued him. They also found cash from Appellant's
person and, pursuant to a search warrant for Appellant's
vehicle, found heroin packaged in 59 individual packets, $4,
000 in cash, and five cell phones, including one with the
phone number the CI used to set up the drug purchase.
was charged with two counts of Possession with Intent to
Deliver a controlled substance ("PWID") and related
drug offenses, as well as Escape, Flight to Avoid
Apprehension, Resisting Arrest, and two summary driving
offenses, for a total of 11 counts. Appellant remained free
on bail. See Notes of Testimony ("N.T.")
Plea, 12/8/15, at 15-18.
December 8, 2015, just prior to picking a jury, Appellant
entered an open guilty plea to all charges. At that hearing,
Appellant underwent an extensive waiver colloquy.
Appellant's attorney stated that he had apprised
Appellant of the elements of the crimes charged. Appellant
agreed that he "is aware of the elements of the crimes
charged, the burden of production and persuasion that the
Government has the duty of if it were to come to trial, and
then also what the statutory maximums are of each one of the
offenses." Id. at 7-8. In addition, the
prosecutor provided a detailed recitation of the facts
underlying the charged crimes, the elements of each of the
crimes, and the possible sentence for each crime. Appellant
unequivocally responded that he understood each crime and
agreed that he was pleading guilty because he was "in
fact, guilty of them." Id. at 9-22, 29. The
trial court accepted the guilty pleas, ordered a pre-sentence
investigation, and scheduled sentencing for January 26, 2016.
Id. at 22, 29. Appellant remained free on bail, and
on January 21, 2016, filed a Pre-Sentence Memorandum in
January 26, 2016, at the sentencing hearing, the Commonwealth
requested a sentence of at least four years'
incarceration. Relevant to this appeal, the following
exchange occurred during the prosecutor's argument:
[Prosecutor]: The defendant is an individual
who profits from the drug trade and he profits from
addiction. As a prosecutor who's been doing this for a
long time, we look at these cases, and you see a name and you
see a deal and you see an amount of weight that was sold and
you really don't think much further than that.
However, it is important to note that all these drug
indications [sic] involve numerous victims, when you think
about it: people who are addicted to cocaine, people who are
addicted to heroin. These individuals lose their jobs. They
go out on the street, and they need money to support their
habit. In order to support their habit, they rob. They steal.
They steal from friends. They steal from family. They commit
burglaries. They commit robberies out on the street. And the
entire public is affected by this.
The defendant profits from that. He makes money off of that
to buy things, to go on trips.
And I noticed in his presentence investigation, that - his
[mitigation] memorandum that he sent, I believe there was a
picture of him and his five children and pictures of him when
he was in kindergarten and school, growing up. But as
recently as September, if you go on the defendant's
Facebook page, he's in Las Vegas, having a good time.
[Appellant's Attorney]: You know what?
I'm going to have to object to a large part of - I
understand that there's allocution, and the Commonwealth
has a right of it, but a couple of different things. I was
gonna let it go.
Number one, the relevance of the trail of tears type of
information when there's been absolutely nothing linked
to this particular defendant. That is wild speculation, and
I'd ask the Court to acknowledge the fact that drugs are
something that destroys our community, but specific effects
have not been traced back to [Appellant].
Number two is, as far as being in Las Vegas or anything on
his Facebook, I note that there's nothing here that's
presented as far as anything that's authenticated,
nothing here in terms of the evidence. And so I'd ask the
Court to strike that, also, from its consideration as well.
There's a way to prove these things up, and they were not
[Prosecutor]: And I'm not worried about,
necessarily, the Las Vegas thing.
However, it is apparent that the defendant is someone who
profits from the drug trade, makes money. He is not a person
who uses and sells to support his habit. He profits from
this, and he makes money to buy things. And with that - and
that is the reason I am requesting a sentence of no less than
four years in State prison.
He's had numerous PWIs. He's gotten Intermediate
Punishment. He went to County prison. It is time to send
[Appellant] to State prison.
[Appellant's Attorney]: If I may, Your
Honor, very quickly.
At this time, Your Honor, based upon not only the comments
that we had sidebar and also with respect to the
prosecutor's allocution, we'd like to withdraw our
The Court: I don't know on what grounds
that would be. I already have the presentence. I have your
[Appellant's Attorney]: It's -
The Court: The sentence is based on his
plea, the background, and the information that I have
pertaining to the case. [The prosecutor] gave his comments.
Regardless of his comment, I am going to proceed with
[Appellant's Attorney]: Just so we are
clear here, this is prior to sentencing. He's asking to
withdraw his guilty plea, which is liberally allowed under
the Pennsylvania Supreme Court rulings, and that the Court
needs to show a manifest abuse of justice in order for it to
be able to do that. And I don't see that on this record.
I just want to be clear to the Court that our intention here
is to withdraw his guilty plea prior to sentencing, and I
think that if the Court goes forward and sentences him when
he asserts that he's factually innocent - which he's
prepare to do - then it's going to be a very difficult
burden for the court to overcome.
The Court: This is the second time that
[Appellant] has gone down this lane.
[Appellant's Attorney]: And you know
what happened on the second one? He got found not guilty.
The Court: That's correct.
[Appellant's Attorney]: Okay. So -
The Court: All right. I'll tell you what
we're going to do. We're going to allow him to
withdraw his plea.
I will raise bail to $150, 000. We will set this for February
8th for trial.
[Discussion occurred between the Court and Appellant's
Attorney regarding the increase in bail and Appellant's
intention to appeal the increase of bail.]
[Prosecutor]: And it's the
Commonwealth's position that bail should - he
shouldn't even have bail. While he was out on bail on two
other cases, he violated this act.
So for him to be in jail at this time is not only proper; it
is the correct thing to do at this point. . . . what he's
doing right now is playing games with the system.
This case has been around since at least, the first listing,
August of 2014. The Commonwealth was prepared to try this
case in early December. Our witnesses were ready, willing,
and able. I was prepared as well.
Now we come here at sentencing after Christmas, after the
holidays, and he comes in here, because the prosecutor
doesn't say what he likes and doesn't appreciate what
I say about him - which is the ...