Com. v. Russell, M.

J-S27014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee

v.

MICHAEL RUSSELL

Appellant No. 1839 EDA 2021

Appeal from the Judgment of Sentence Entered June 28, 2021
In the Court of Common Pleas of Northampton County
Criminal Division at No: CP-48-CR0000783-2020

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee

v.

MICHAEL RUSSELL

Appellant No. 1862 EDA 2021

Appeal from the Judgment of Sentence Entered June 28, 2021
In the Court of Common Pleas of Northampton County
Criminal Division at No: CP-48-CR-0002849-2019

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY STABILE, J.: FILED DECEMBER 01, 2022

Appellant, Michael Russell, appeals from the June 28, 2021 judgment of

sentence imposing ten to twenty years of incarceration for strangulation,

simple assault, solicitation to commit perjury, solicitation to commit
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interception of an electronic communication, multiple counts of intimidation of

a witness, and obstruction of the administration of law.1 We affirm.

On July 16, 2019, the victim, Traci White, called 911 and reported that

Appellant assaulted her. White provided a written statement to police

indicating that Appellant pushed her to the ground and choked her until she

could not breathe. Responding police officers noted redness around White’s

neck. While incarcerated, Appellant continued to contact While, by phone call,

text message, and letter, despite the trial court’s no contact order.2 As a

result, Appellant was charged with the aforementioned offenses.

A jury trial commenced on April 13, 2020. Part way through trial, the

parties approached the trial court with a negotiated plea agreement. The trial

court rejected it, concluding that Appellant was unable to enter a knowing,

intelligent, and voluntary guilty plea. At the conclusion of trial on April 20,

2020, the jury found Appellant guilty of all charges set forth above and not

guilty of terroristic threats. The trial court imposed sentence on June 28,

2021, and Appellant filed a timely post-sentence motion on July 6, 2021. In

his post-sentence motion, Appellant claimed that his sentence is excessive

and that the jury’s verdict was contrary to the weight of the evidence. The

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1 18 Pa.C.S.A. §§ 2718, 2701, 4902, 5703, 4952, and 5101.

2 Appellant’s convictions for multiple violations of the trial court’s no contact
order are at issue in the companion case at No. 2079 EDA 2021.

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trial court denied Appellant’s post-sentence motion on August 10, 2021. This

timely appeal followed.

Appellant presents three questions for our review:

I. Whether the trial court erred in failing to properly colloquy
Appellant and in rejecting Appellant’s mid-trial attempt to
plead guilty pursuant to a negotiated plea agreement with
the Commonwealth because the record shows that the plea
would have been knowing, intelligent, and voluntary, and
the trial court’s sole reason for rejecting the plea was the
erroneous believe that a criminal defendant must be
satisfied with the performance of defense counsel in order
to plead guilty?

II. Whether the trial court erred in imposing a manifestly
excessive, unreasonable sentence of up to 20 years’
incarceration for a case in which the majority of the charges
were designed to prevent the same conduct, much of
Appellant’s criminal record was made up of juvenile
adjudications, the complainant suffered minor injuries, the
complainant did not want Appellant prosecuted, the trial
court justified its decision based on a mistaken belief that
Appellant failed to accept responsibility, and where the
sentence leaves the complainant and her young child
without Appellant’s financial support for the entire childhood
of their daughter?

III. Whether the trial court erred in denying the post-sentence
motions for a new trial because the verdict was against the
weight of the evidence for the strangulation and witness
intimidation charges, specifically:

a. With respect to the strangulation charge, should the trial
court have granted a new trial because the verdict was
against the weight of the evidence where the evidence
showed that the complainant suffered no injuries to her
neck, that the EMT did not even observe any visible
redness, and that she stated that the only contact with
her neck was not that she was choked, but that Appellant
grabbed her and threw her to the ground?

b. With respect to the witness intimidation charge, should
the trial court have granted a new trial because the

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verdict was against the weight of the evidence where the
evidence showed that complainant was in no way
intimidated by Appellant, she had made repeated
attempts to contact him after his arrest, those attempts
including calling him through the prison video
application, putting money on his prison account, and
repeatedly making accounts under fake names so that
they could continue to communicate, and where
Appellant did not actually threaten or intimidate the
complainant?

Appellant’s Brief at ix-x.

We consider these questions in turn. To be valid, a guilty plea must be

knowing, intelligent, and voluntary on the part of the defendant.

Commonwealth v Hart, 174 A.3d 660, 667 (Pa. Super. 2017). Thus, “the

guilty plea colloquy must affirmatively show that the defendant understood

what the plea connoted and its consequences.” Id. at 668 (quoting

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011))

(emphasis added in Hart). To that end, the Rules of Criminal Procedure set

forth seven areas of inquiry to be covered during a guilty plea colloquy:

(1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he or she has the right to
trial by jury?

(4) Does the defendant understand that he or she is presumed
innocent until found guilty?

(5) Is the defendant aware of the permissible range of sentences
and/or fines for the offenses charged?

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(6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge accepts
such agreement?

(7) Does the defendant understand that the Commonwealth has
a right to have a jury decide the degree of guilt if the defendant
pleads guilty to murder generally?

Pa.R.Crim.P. 590, comment.

A trial court may, in its discretion, reject a plea if the defendant cannot

offer it knowingly, voluntarily, and intelligently. “The Pennsylvania Rules of

Criminal Procedure grant the trial court broad discretion in the acceptance and

rejection of plea agreements. There is no absolute right to have a guilty plea

accepted.” Commonwealth v. Chazin, 873 A.2d 732, 737 (Pa. Super. 2005)

(quoting Commonwealth v. Hudson, 820 A.2d 720, 727–28 (Pa. Super.

2003)), appeal denied, 887 A.2d 1239 (Pa. 2005).

The record reflects that the parties approached the trial court with a

negotiated plea agreement on April 19, 2021, midway through the trial. The

record reveals that Appellant indicated his dissatisfaction with counsel on his

written plea colloquy. The trial court explained to Appellant that she would

not accept his plea if he was dissatisfied with defense counsel’s performance:

Mr. Russell, sir, if you’re not satisfied with [defense
counsel], that’s entirely fine with me. If your answer is no, that’s
entirely fine with me. You do not have to plead guilty. I’m not
forcing you to do so, sir. Whatever you want to do is fine with
me.

But I will be constrained to call the jury in and continue with
the trial if your answer on that colloquy is no. I would do that for
anyone who answered that question no, sir.

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N.T. Trial, 4/19/21, at 14. Defense counsel then indicated that Appellant was

changing his answer on the written colloquy. Id. The trial court inquired of

the prosecutor as to her position on the plea, and the prosecutor responded,

“We’re ready to proceed. The defendant’s playing games.” Id. at 15. Thus,

the Commonwealth retracted its offer, and Appellant continued to express lack

of understanding with regard to the plea:

THE COURT: Nope. I believe the Commonwealth has
retracted the offer; am I right?

[THE PROSECUTOR]: Judge, we’ve been at this all morning.
It’s 11:00. The defendant is playing games.

[APPELLANT]: I am not. I misunderstood what he was
saying. [Inaudible] he told me I had to fix it [the written
colloquy]. He explained to me so I fixed it. It asked me about
one thing about being in order to accept that I have to change it
so I changed it. I don’t think I filled it out purposely wrong. It
asked me – which the court is very well aware that I’ve been
unhappy with him. But I’m not saying that as far as the plea offer.
He told me – I just answered the question. I don’t think now that
I feel my right’s in jeopardy.

THE COURT: The standard for a guilty plea is that he has
to be satisfied with his representation concerning being well
informed about the guilty plea.

[APPELLANT]: I’m just not getting explained
everything. I don’t think I’m not wrong [sic] about asking
questions, Judge. I mean, I’m not understanding it. And
no one’s explaining it to me.

Id. at 17-18 (emphasis added). The prosecutor once again indicated her

concern with Appellant’s repeated expression of dissatisfaction with his

counsel. Id. at 18. The trial court rejected the plea, called in the jury, and

directed Appellant not to be disruptive in the presence of the jury. Id. at 19.

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Appellant argues the trial court erred because the law does not require

a defendant to be satisfied with his counsel prior to pleading guilty.

Satisfaction with counsel’s performance is not among the requirements listed

in the official comment to Pa.R.Crim.P. 590, Appellant notes. Further,

Appellant criticizes the trial court for not conducting a full colloquy in accord

with Rule 590.

We find these arguments unpersuasive. As is evident from the

foregoing, the trial court was concerned with Appellant’s multiple assertions

that he was dissatisfied with counsel’s performance. But when the trial court

told Appellant he needed to be “satisfied with his representation concerning

being well informed about the guilty plea,” Appellant responded, in the bolded

text above, that he did not understand his plea and “no one’s explaining it to

me.” N.T. Trial, 4/19/21, at 18. With that statement on the record, in addition

to Appellant’s assertions of his dissatisfaction with counsel, the trial court had

a valid basis for finding that Appellant was not able to enter a knowing,

intelligent, and voluntary plea. Moreover, the Commonwealth had withdrawn

its plea offer in apparent frustration after a morning of negotiation to no avail.

The trial court, echoing the prosecutor, stated that Appellant was “playing

games” rather than engaging in a sincere effort to resolve the case.

Regarding Appellant’s argument that the trial court should have

conducted a full colloquy in accord with Rule 590, we fail to understand why

any further colloquy was necessary. The purpose of the colloquy is to ensure

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that the defendant enters knowing, intelligent, and voluntary plea. In this

case, further inquiry in accord with Rule 590 served no purpose after the trial

court found that Appellant was unable to enter a valid plea. Based on all of

the foregoing, we discern no abuse of discretion in the trial court’s decision to

reject Appellant’s plea.

In his second assertion of error, Appellant claims his sentence was

manifestly excessive.

An appeal raising the discretionary aspects of sentencing is
not guaranteed as of right; rather, it is considered a petition for
permission to appeal. In order to reach the merits of a
discretionary aspects claim, we must engage in a four-part
analysis to determine:

(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.

The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.

Commonwealth v. Mulkin, 228 A.3d 913, 916 (Pa. Super. 2020) (citations

omitted).

As explained above, Appellant preserved his sentencing challenge in a

post-sentence motion and filed a timely notice of appeal. In his concise

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statement of the reason relied upon for allowance of appeal (see Pa.R.A.P.

2119(f)),3 Appellant claims his sentence was manifestly excessive.

Appellant’s Brief at xix-xxi. A claim of an excessive sentence can raise a

substantial question4 where the defendant proffers a reason why the sentence

is excessive based on the facts of the case; a bald claim of excessiveness will

not. Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013),

appeal denied, 91 A.3d 161 (Pa. 2014). Here, Appellant claims in his

Pa.R.A.P. 2119(f) statement that his aggregate 10 to 20-year sentence is

excessive under the circumstances because the sentencing court erroneously

concluded that Appellant did not accept responsibility for his crimes; because

the victim sustained only minor injuries; because the victim stated she did not

want Appellant to be prosecuted; and because Appellant suffered from

untreated mental health issues at the time of the offenses. Appellant has

____________________________________________

3 That rule provides:

(f) Discretionary aspects of sentence. An appellant who
challenges the discretionary aspects of a sentence in a criminal
matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence. The statement
shall immediately precede the argument on the merits with
respect to the discretionary aspects of the sentence.

Pa.R.A.P. 2119(f).

4 The Sentencing Code provides that allowance of appeal will be granted only
where the appellant raises a substantial question that the sentence is
inappropriate under the statutory sentencing framework. 42 Pa.C.S.A.
§ 9781(b)

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offered more than a bald claim of excessiveness, and we therefore conclude

he has raised a substantial question as to the propriety of his sentence.

We now consider the merits. Sentencing is vested in the sound

discretion of the trial court; we will not reverse absent an abuse of that

discretion. Dodge, 77 A.3d at 1274. Because Appellant’s sentences fall within

the guideline ranges, we will reverse if the sentencing court applied the

guidelines erroneously or if application of the guidelines is clearly

unreasonable under the circumstances of this case. 42 Pa.C.S.A.

§ 9781(c)(1), (2). Our review of the record includes:

(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.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

Appellant argues, as noted above, that the victim’s injuries were minor,

that she did not want Appellant prosecuted, and that Appellant had untreated

mental health problems at the time of the offense. The trial court imposed

standard range sentences for each of Appellant’s convictions, and ran them

consecutively. The record reflects that the trial court was aware of and

considered Appellant’s mental health history. The trial court also noted

Appellant’s extensive history, including numerous violent offenses as a

juvenile. The trial court’s finding that Appellant was unwilling to accept

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responsibility for his actions came from Appellant’s pre-sentence investigation

(“PSI”) report:

We considered Appellant’s [PSI], which did not note
anything favorable about Appellant. The PSI Report discusses
Appellant’s inability to gain and maintain employment, his
unwillingness to take responsibility for his actions, his constant
communication with Ms. White, his extremely poor prognosis for
community supervision after any period of incarceration, and a
recommendation for a state sentence because Appellant’s needs
are best served under the direction of the Pennsylvania Board of
Probation and Parole.

Trial Court Opinion, 11/3/21, at 12. Further, Appellant’s prison record during

his incarceration for the present record included write ups for intimidation of

other inmates. Id. at 12-13.

In addition to the foregoing, the trial court noted that Appellant’s

purported acceptance of responsibility by attempting to plead guilty must be

weighed against the fact that he has been convicted of multiple offenses

involving his attempts to get the victim to lie for him and/or not cooperate

with the prosecution. According to the trial court, Appellant’s “extensive

efforts to get the victim to lie for him were relentless for months.” Id. at 14.

Likewise, the victim’s stated wish that Appellant not be prosecuted had to be

weighed in this context. As to the victim’s minor injuries, as we will explain

below, injury is not an element of the offense of strangulation. We discern no

abuse of discretion in the trial court’s analysis of any of these considerations.

The case law Appellant relies on is likewise unavailing. In

Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008), appeal

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denied, 980 A.2d 605 (Pa. 2009), for example, the trial court imposed 58 ½

to 124 years of incarceration—effectively a life sentence for the 42-year-old

defendant—for two counts of burglary and 37 counts of receiving stolen

property. The trial court arrived at the aggregate total by running sentences

consecutively. The defendant’s offenses were non-violent and the 37 counts

of receiving stolen property related to Appellant’s theft of costume jewelry.

Id. at 1202. This Court therefore vacated the sentence.

Appellant also relies on Commonwealth v. Coulverson, 34 A.3d 135

(Pa. Super. 2011), wherein this Court reversed a 90-year maximum sentence

in connection with multiple sexual offenses because the trial court arrived at

that sentence “notwithstanding the tragedy and dysfunction underlying

Coulverson’s own life, his individual need for effective intervention, or any

rehabilitation he might achieve.” Id. at 148. Further, the record reflected the

sentencing court’s “determination not to consider any sentence other than a

statutory maximum, notwithstanding any factor that might counsel to the

contrary.” Id.

Dodge is easily distinguishable in that the defendant’s offenses were

non-violent and he received what amounted to a life sentence for stealing

large quantities of jewelry of little value. Instantly, Appellant was convicted

of strangulation—a violent offense—and multiple attempts to prevent the

victim from testifying against him. His sentence also is significantly shorter

than the one imposed in Dodge. Coulverson was a sexual assault case in

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which the trial court evinced its determination that the maximum term of the

defendant’s sentence should be the statutory maximum. The trial court in

Coulverson disregarded evidence regarding the defendant’s individualized

needs. The instant case is distinguishable in that the trial court imposed

standard-range sentences and took account of Appellant’s needs. The court

considered, among other things, Appellant’s criminal history, his history in

prison, his ongoing and relentless efforts to convince the victim to lie for him,

and his belligerent conduct during trial, in arriving at the aggregate sentence.

The trial court was aware of Appellant’s mental health needs, but found that

other factors weighed in favor of the 10 to 20-year term of incarceration.

There is no indication in the record that the trial court was determined to

impose the longest possible sentence regardless of the evidence of record.

Coulverson is distinguishable. Based on all of the foregoing, we discern no

abuse of discretion in the trial court’s sentence.

In his third and final assertion of error, Appellant claims the trial court

erred in denying his post-sentence motion for a new trial on the strangulation

and witness intimidation charges, as both convictions were against the weight

of the evidence. We conduct our review as follows:

A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, the
role of the trial judge is to determine that notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny

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justice. It has often been stated that a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one's sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.

An appellate court’s standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court:

Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.

This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based on
a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:

The term ‘discretion’ imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion within
the framework of the law, and is not exercised for the purpose of
giving effect to the will of the judge. Discretion must be exercised
on the foundation of reason, as opposed to prejudice, personal
motivations, caprice or arbitrary actions. Discretion is abused
where the course pursued represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013).

The Crimes Code defines strangulation in relevant part as follows:

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(a) Offense defined.--A person commits the offense of
strangulation if the person knowingly or intentionally impedes the
breathing or circulation of the blood of another person by:

(1) applying pressure to the throat or neck; or

(2) blocking the nose and mouth of the person.

(b) Physical injury.--Infliction of a physical injury to a victim
shall not be an element of the offense. The lack of physical injury
to a victim shall not be a defense in a prosecution under this
section.

18 Pa.C.S.A. § 2718(a), (b). The record includes the victim’s 911 call wherein

she asked for help because Appellant choked her and tried to kill her. N.T.

Trial 4/13/21, at 38; Commonwealth Exhibit 2. The record also contains the

victim’s written statement wherein she described in detail Appellant’s grabbing

her by the neck and choking her until she could not breathe. Commonwealth

Exhibit 38. Subsequently, the victim changed her story. According to

Appellant, the victim’s changed story plus the absence of evidence of serious

injury entitles him to a new trial based on weight of the evidence. We

disagree. The jury was entitled to credit the victim’s statements to the 911

dispatcher and to police and discredit her later statements, especially given

the body of evidence indicating that Appellant was attempting to intimidate

the victim into changing her story. Further, the statute provides that physical

injury to the victim is not an element of the offense. The trial court did not

abuse its discretion in denying Appellant’s motion for a new trial on the

strangulation charge based upon Appellant’s claim the verdict was against the

weight of the evidence.

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Next, we consider Appellant’s challenge to several counts of the witness

intimidation charge:

(a) Offense defined.--A person commits an offense if,
with the intent to or with the knowledge that his conduct will
obstruct, impede, impair, prevent or interfere with the
administration of criminal justice, he intimidates or attempts to
intimidate any witness or victim to:

[…]

(2) Give any false or misleading information or testimony
relating to the commission of any crime to any law enforcement
officer, prosecuting official or judge.

(3) Withhold any testimony, information, document or thing
relating to the commission of a crime from any law enforcement
officer, prosecuting official or judge.

[…]

(5) Elude, evade or ignore any request to appear or legal
process summoning him to appear to testify or supply evidence.

18 Pa.C.S.A. § 4952(a)(2), (3), (5). Appellant was convicted under each of

these subsections. Appellant claims the weight of the evidence was against

his witness intimidation convictions because there is no evidence the victim

was intimidated. His claim is unavailing. The record contains evidence from

Appellant’s cell phone, prison phone records, and a written letter—all of which

document extensive communications between Appellant and the victim

regarding Appellant’s prosecution and his wish for the victim not to cooperate.

Indeed, during some of the communications between Appellant and the victim,

the victim expressed her concern about being charged with perjury. Despite

all of this, the victim testified at trial that she did not remember discussing

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the case with Appellant. The jury was nonetheless entitled to credit the

substantial body of evidence documenting Appellant’s numerous

communications to the victim, and to discredit the victim’s testimony.

In addition to the foregoing, we note two additional points. First,

Appellant’s argument ignores the statute, which requires only an attempt to

intimidate, of which there is ample evidence. Second, the record supports a

finding of actual intimidation. Because the victim’s trial testimony regarding

Appellant’s assault of her was in stark contrast to the recorded 911 call and

her contemporaneous written statement to the police, there was ample

evidence that Appellant’s campaign of intimidation was successful. Appellant’s

argument fails.

Because we have found no merit to any of Appellant’s arguments, we

affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/1/2022

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