Com. v. Demanche, A.

J-S80017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

APRIL DEMANCHE

Appellee No. 5 MDA 2016

Appeal from the PCRA Order Dated November 30, 2015
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0005999-2014

BEFORE: LAZARUS, STABILE, and RANSOM, JJ.

MEMORANDUM BY STABILE, J.: FILED DECEMBER 30, 2016

The Commonwealth appeals from the November 30, 2015 order

entered in the Court of Common Pleas of York County (“PCRA court”), which

permitted Appellee April Demanche to withdraw her plea of nolo contendere

and proceed to trial based on a recantation claim pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A §§ 9541-46. Upon careful

review, we affirm.

The facts and procedural history underlying this case are undisputed.

Briefly, on April 23, 2015, Appellee pled no contest to two counts of

endangering the welfare of children under 18 Pa.C.S.A. § 4304(a)(1) and

was sentenced to consecutive five-year terms of probation. On August 21,

2015, Appellee filed the instant PCRA petition, alleging that, between July 5,

2015, and July 15, 2015, she discovered that two minor victims had
J-S80017-16

recanted their allegations of abuse against Appellee.1 The PCRA court

conducted a hearing, after which it granted Appellee PCRA relief based on

after-discovered recantation evidence on November 30, 2015.2 The

Commonwealth timely appealed to this Court. Following the

Commonwealth’s filing of a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion.

On appeal,3 the Commonwealth raises three issues for our review:

____________________________________________

1
Generally, a defendant who pleads guilty waives all defects and defenses
except those concerning the jurisdiction of the court, the legality of the
sentence, and the validity of the guilty plea. See Commonwealth v.
Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008). A nolo contendere plea
is treated the same as a guilty plea. Commonwealth v. Leidig, 850 A.2d
743, 745 (Pa. Super. 2004), aff’d, 956 A.2d 399 (Pa. 2008).
2
In Commonwealth v. Starr, 301 A.2d 592 (Pa. 1973), our Supreme
Court determined that a court should allow the withdrawal of a guilty plea
after sentencing to correct a manifest injustice to the defendant.
Subsequently, the Court determined that any after-discovered evidence
which would justify a new trial would also satisfy the requirements of Starr.
Commonwealth v. Peoples, 319 A.2d 679, 681 (Pa. 1974). Specifically,
the Court stated that “any after-discovered evidence which would justify a
new trial would also entitle a defendant to withdraw his guilty plea.” Id.
3
We have explained:

This Court examines PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record[.]
Additionally, [w]e grant great deference to the factual findings of
the PCRA court and will not disturb those findings unless they
have no support in the record. In this respect, we will not
disturb a PCRA court’s ruling if it is supported by evidence of
record and is free of legal error. However, we afford no
deference to its legal conclusions. [W]here the petitioner raises
questions of law, our standard of review is de novo and our
scope of review is plenary.
(Footnote Continued Next Page)

-2-
J-S80017-16

I. Whether [Appellee] is ineligible for relief under the PCRA
under Section 42 Pa.C.S.A. § 9543(a)(2)(iv) as the purported
victim recantations could have been discovered by going to trial
and examining the victims at trial?[4]

II. Whether the lower court erred in granting [Appellee’s] PCRA
petition to withdraw a no-contest Alford plea,[5] based upon
purported recantations of two of four juvenile victims?

III. Whether [the] PCRA court erred in permitting [Appellee] to
withdraw her no-contest plea where the plea consisted of two
counts involving a consolidated claim of four victims where only
two victims recanted?

Commonwealth’s Brief at 4 (unnecessary capitalization omitted).

After careful review of the record and the relevant case law, we

conclude that the PCRA court accurately and thoroughly addressed the

merits of the Commonwealth’s claims. See PCRA Court Rule 1925(a)

Opinion, 4/5/16, at 7-19. Accordingly, we affirm the PCRA court’s November

_______________________
(Footnote Continued)

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super .2014) (citations
and quotation marks omitted), appeal denied, 101 A.3d 785 (Pa. 2014).
4
To obtain relief based upon newly-discovered evidence under the PCRA, a
petitioner must establish that: (1) the evidence has been discovered after
trial and it could not have been obtained at or prior to trial through
reasonable diligence; (2) the evidence is not cumulative; (3) it is not being
used solely to impeach credibility; and (4) it would likely compel a different
verdict. Commonwealth. v. D'Amato, 856 A.2d 806, 823 (Pa. 2004)
(citation and quotation marks omitted). In fact, the PCRA provides relief
where a petitioner can prove “[t]he unavailability at the time of trial of
exculpatory evidence that has subsequently become available and would
have changed the outcome of the trial if it had been introduced.” 42
Pa.C.S.A. § 9543(a)(2)(vi).
5
North Carolina v. Alford, 400 U.S. 25 (1970). An Alford plea is a nolo
contendere plea in which the defendant does not admit guilt but waives his
trial and voluntarily, knowingly, and understandingly consents to the
imposition of punishment by the trial court. Alford, 400 U.S. at 37.

-3-
J-S80017-16

30, 2015 order. We further direct that a copy of the PCRA court’s April 5,

2016 Rule 1925(a) opinion be attached to any future filings in this case.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2016

-4-
 Circulated 11/30/2016 04:12 PM
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IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH
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Appellant
v. NO. CP-67-CR-0005999-2014
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APRIL DEMANCHE, (

Def end ant/ Appellee ~ ..._., :;. '~
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COUNSEL OF RECORD: I
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James E. Zarnkotowicz, Esquire Anthony J. Tambourine, Esquire d ;.~
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Counsel for the Appellant Counsel for the Appel lee ···+ . ( -
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OPINION IN SUPPORT OF ORDER PURSUANT TO RULE l925(a) OF THE
RULES OF APPELLATE PROCEDURE

The Court received a Notice of Appeal, docketed on December 30, 2015, that the

Commonwealth of Pennsylvania appeals to the Superior Court of Pennsylvania the Order

entered in this case on November 30, 2015. Having considered all evidence, testimony, and

relevant case Jaw, the Court now issues this Opinion in support of our November 30, 2015

Order.

I. Procedural History

By the filing of an [nformation on September 29, 2014, the Appellee was charged

with Criminal Solicitation to Involuntary Deviate Sexual Intercourse-Less Than 13 Years

of Age, four counts of Unlawful Restraint, four counts of Endangering Welfare of Children,

and Corruption of Minors. Thereafter, the Appellee completed a Waiver of Arraignment on

October 17, 2014. On February 12, 20 J 5, the case was listed for trial in the March of 2015

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trial term. Believing the Commonwealth possessed sufficient evidence to convince a jury of

.·_,! her guilt, the Appellee entered an Alford plea on May 8, 2015 to two added counts of

··/' .. •
Endangering Welfare of Children under 18 Pa.C.S.A. § 4304(a)(l ). The Appellee was then

sentenced to consecutive terms of five years of probation on each count with the opportunity

to close the case after five years of compliance.
in

On October 27, 2015, a Post-Conviction Relief Act Hearing was held to consider

Appellee's petition for a new trial based upon the recantations of key witnesses. Having

reserved our decision, we issued an Order, on November 30, 2015, granting the Appellee a

new trial based upon the credible renunciations of the two eldest victims' testimony.

The Commonwealth filed a Notice of Appeal on December 30, 2015. On January 4,

2016, we ordered the Appellant to file a statement of matters complained of pursuant to Ruic

I 92S(b ), of the Pennsylvania Rules of Appellate Procedure. On January 11, 2016, the

Appellant complied and filed their Statement of Matters Complained of on Appeal Pursuant

to Pennsylvania Rules of Appellate Procedure l 925(b).

The Appellant appeals for the following reasons. First, the Appellant avers that we

erred in granting the Appellant's petition to withdraw her no-contest Alford plea following

the recantations of the two eldest child victims. Second, the Appellant believes we erred in

granting relief because the recantations could have been discovered by examination of the

victims at trial. Third, and finally, the Appellant avers that the Appellee's pleas to the two

counts of Endangering the Welfare of Children involved consolidated claims involving four

2
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victims and only two of the four victims recanted.

II. Facts

: 1_,'
At the October 27, 201 S PCRA Hearing, the eldest child accuser, se-.r

took the stand to recant his accusations. Se) I was born January 24, 2004. (Notes of

:· ... Testimony, 10/27/15, at 10.) Without objection, S~as found to be competent. Id., at
i 1'•

. (·
15 .

SJ ill testified that the Appellee was his brother B Al's girlfriend and the

family's babysitter. Id., at 16. As to the accusations, S-stated that he had lied to the

Children's Advocacy Center (hereinafter: CAC) interviewer. Id., at 17. Specifically,

S~told this Court that he lied about the Appellee tying him and his siblings up and

that the Appellee never forced the supposed victim ses face near SJ R's privates.

J Id., at 17-18. The impetus for S~to lie was that he did not like how the Appcllce had

treated B9111111,in throwing a ring at B8tn Florida. Id., at 19. Se···state9to "do it." Id., at
10:08:20. S~was supposed to have been present and watching this. Id. S stated

interview in which he stated that both S~ and So.were wearing clothes during this

specific part of the second incident. (CAC Interview, 7/22/14, at 10:07:30.)

In Sp9's CAC interviews, he stated that the Appellee used to put him in time out

and hit him. Id., at 9:56:50. Questioned about this, SP91tsaid that the Appellec smacked

him on the hands and nowhere else. Id., at 9:58:50. Further, Sp 81 :tated that the Appellee

only ever hit his siblings on their hands or butts and nowhere else. Id., at 10:01 :50. Once into

the meat of the story, in contrast to Se-, SPlllladded that the children were bound

with baby wipes and paint rags. Id., at l 0:04:20. Sptll also added that the children were

interview credible when he diverged so greatly from Se- on a detail as important as

location. Granted, Sr4lllagreed that the children were bound on the third floor; however,

he added the kitchen, which never surfaced in Setllllllll's account. As S~lleges that

the children were bound in the kitchen on the first day, Id., at 10:05: 10, our doubts about his

16
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and Se 's stories increased. setlllllclearly stated that he viewed a man enter the

home from the third floor during the first incident. We could cite more inconsistencies that

t,.:
I led us to believe that se9111 and Srtllllts CAC interviews were not credible; however,
I
we believe the point has been made.

It is undeniable that there were some consistencies amongst the inconsistencies of

se9mlland si:tllllls CAC interviews. Yet, we are cognizant of the fact that some

nineteen days elapsed between the interviews during which Se-could apprise Si9il

of what was to be expected of him. Again, during his credible recantation, Siilllllinformed

the Court that he lied in his CAC interview because S~ had threatened to harm him if

he did not. Mr. Stllconfirmed that Se-has been violent towards Sp...

In Grajewski, cited supra, the PCRA court actually found the supposed recantation to

confirm rather than undercut or dispel the allegations. 2014 WL 10979820, 2 (Pa. Super. Ct.

2014). Here, we were convinced that the recantations were credible. Unlike the unsworn

accusations in the CAC videos, which we found to be contradictory, S~ and SJtllll's

recantations were consistent in the main and were convincing to this Court.

The Appellee having met all of the requirements for relief under the newly-

discovered evidence portion of the Post-Conviction Relief Act, relief was granted. We do not

believe we erred in granting the Appellee's petition for PCRA relief and we respectfully

request affinnance as to Commonwealth's first matter complained of.

17

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: .: . ~ B. Remaining Accusers . . . .. . . . . .. . . .. . .

··· 1 The Appellant's third matter complained of is that the Appellee plead guilty to two

counts of Endangering the Welfare of Children and that each count involved a consolidated

claim involving four victims. Therefore, the Appellant avers, we erred in allowing the

Appellee to withdraw her plea and reinstating her trial rights when only two of the four

victims recanted.

The amended information added two counts of Endangering Welfare of Children

(hereinafter: EWOC). (Transcript of Testimony, 5/8/15, at 2.) The Commonwealth stated to

this Court that these charges addressed two children. Id. We queried, "[s]o there's [sic] two

children?" And the Commonwealth replied: "Correct." id. The Commonwealth then went on

to state that there was to be no contact with the victims and listed four; however, we see no

specificity in the transcript as to which victims are addressed by the two distinct EWOC

charges. ff it is the Commonwealth's contention that the two counts of EWOC address

consolidated charges for four victims each then we are left to wonder why the

Commonwealth responded that the counts plead to addressed two children. It is certainly not

memorialized in the amended information. We believe it was contemplated that the Appcllce

plead to charges addressing but two victims. Yet, we admit, it is confusing to attempt to parse

so brief a portion of transcript and four victims' names were recounted, so we move on to our

analysis.

It is true that two of the purported victims did not testify at the PCRA Hearing;

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however, the two supposed victims who did testify called into question the allegations of all

of the victims through convincing recantations that necessarily lead to a finding that the

youngest victims may have lied as well. Ultimately, this would be for a jury to decide. When

two of the four children state that none of the children were tied up or abused by the

Appellee, one wonders if, perhaps unwittingly, but nevertheless, the Commonwealth

proffered evidence that amounts to lies. In light of recantations that call into question the

truth of s•and S.s accusations, to refuse to revisit the issue would be to cast aside

the most fundamental notions of justice. We therefore pray for affirmance as to this matter

complained of.

IV. Conclusion

Based upon the reasons stated above, this Court respectfully urges affirmance of the

Order entered in this case on November 30, 2015.

BY THE COURT,

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DA TED: April _J_, 2016 "MICHAELE. BORTNER, JUDGE

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