J-A30019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MELVIN REED
Appellant No. 2625 EDA 2013
Appeal from the Judgment of Sentence July 8, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010275-2011
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 31, 2014
Appellant, Melvin Reed, appeals from the July 8, 2013 aggregate
judgment of sentence of 25 to 50 years’ imprisonment following his
negotiated guilty plea to third-degree murder, firearms not to be carried
without a license, and possession of an instrument of crime (PIC).1 After
careful review, we affirm.
The trial court summarized the relevant facts of this case as follows.
The incident took place on April 18th of 2011
at approximately 6:40 p.m. at the location of 6600
North Gratz Street in the City and County of
Philadelphia. On that day, the decedent, Alfred
Williams, Junior, was 22 years old. He was dropped
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(c), 6106, and 907, respectively.
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off at that location by his boss whom he had worked
for that day. He was unarmed and went into the
convenience store at that location. There is video
surveillance of that convenience store, that identifies
[Appellant] and the victim being at that location at
the same time and also surveillance footage of the
outside of the convenience store that identifies
[Appellant] at that location at the time of the
murder.
There are three (3) eyewitnesses that identify
[Appellant] by description and clothing, height[,]
and[] weight. They identify him as wearing a black
hoodie with black pants with red stripes down the
side. Each would testify that they witnessed the
murder.
Shortly before the murder, they observed the
decedent, Mr. Williams, speaking to a number of
Jehovah’s Witnesses. As he ended that
conversation, he interacted with [Appellant]. There
were some words exchanged and [Appellant] pulled
out a gun and shot him numerous times. All three
(3) of those witnesses identified [Appellant] through
photo arrays and also in the video surveillance.
The Commonwealth would have presented Dr.
Edwin Lieberman with the following findings:
Mr. Williams[] suffered a gunshot wound to the
back of the neck, a grazing gunshot wound to the
back of the left trapezius, a perforating gunshot
wound to the back of the left shoulder girdle, a
penetrating gunshot wound to the anterior mid-neck
with recovery of a bullet from T1 severed cord at C6-
7 with recovery of a small[-]sized bullet jacket from
TI, also a penetrating gunshot wound to the left
lateral chest wall. His heart, lung and aorta were
penetrated by the bullet. There was recovery of a
small[-]sized jacketed bullet in the right armpit. All
of these shots were fired from an indeterminate
range. The cause of death was multiple gunshot
wounds to the head, neck and chest. There were
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five gunshot wounds in this particular case. The
manner of death was homicide.
The decedent expired with the pamphlet from
the Jehovah’s Witnesses in his hand. He was
pronounced dead on the scene.
[Appellant] was brought in on April 19, 2011 to
Homicide. He decided at the time he did not wish to
give a statement. He was released.
On May 12th of 2011, [Appellant] was arrested
for an unrelated incident on that same block, and
was taken to Homicide. At that time[,] he gave a
statement admitting he shot the decedent. He
claimed that he was selling drugs to the decedent
and the decedent pulled a gun on him. He wrestled
the gun from him and shot him.
The Commonwealth would have presented
physical evidence to the contrary to disprove
[Appellant’s] statement. A search warrant was
executed on [Appellant’s] house where police
recovered a black hoodie and black sweatpants with
red stripes down the side. Although the surveillance
video did not capture the shooting itself, the three
(3) eyewitnesses knew [Appellant]. One of those
witnesses would also testify that he received a phone
call from [Appellant], wherein [Appellant] thought
the decedent was the person that broke into his
house while he was in juvenile custody and that he
was going to roll on him or confront him in some
way.
Trial Court Opinion, 5/14/14, at 2-3. On July 8, 2013, Appellant entered
into a negotiated guilty plea. He pled guilty to third-degree murder,
firearms not to be carried without a license, and PIC. In return, the
Commonwealth agreed not to proceed against him on charges of first-degree
murder or second-degree murder. Immediately following the plea colloquy,
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the trial court sentenced him in accordance with the plea agreement to 20 to
40 years’ imprisonment for the third-degree murder conviction, two and
one-half to five years’ imprisonment for the firearms not to be carried
without a license conviction, and two and one-half to five years’
imprisonment for the PIC conviction. The trial court specified that all
sentences were to run consecutively, for an aggregate of 25 to 50 years’
imprisonment. On July 15, 2013, Appellant filed a pro se motion to
withdraw his guilty plea, which the trial court denied following a hearing on
September 6, 2013.2 Thereafter, on September 26, 2013, Appellant timely
filed the instant appeal.3
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2
Trial counsel represented Appellant at the September 6, 2013 hearing. At
the conclusion of the hearing, trial counsel indicated, “Judge, I think for the
purposes of any possible appeals, [Appellant] just made an allegation of
ineffective assistance of [c]ounsel. So I would ask your Honor to appoint
[c]ounsel.” N.T., 9/6/13, at 5. The trial court agreed and appointed new
counsel to Appellant for purposes of this appeal.
3
Appellant and the trial court have complied with Pa.R.A.P. 1925.
Additionally, we note that Appellant was represented by trial counsel when
he filed his pro se motion to withdraw the guilty plea. If Appellant’s pro se
motion is a legal nullity, it cannot toll the appeal period for Pennsylvania
Rule of Criminal Procedure 720 or Pennsylvania Rule of Appellate Procedure
Rule 903 purposes. See Commonwealth v. Ellis, 626 A.2d 1137, 1138
(Pa. 1993) (concluding there is no right to hybrid representation where a
defendant represents himself while simultaneously represented by counsel);
Commonwealth v. Patterson, 940 A.2d 493 (Pa. Super. 2007), appeal
denied, 960 A.2d 838 (Pa. 2008) (holding this Court may sua sponte raise
jurisdictional issues). Pennsylvania Rule of Criminal Procedure 576(A)(4)
requires the clerk of courts to accept a pro se submission from a represented
defendant for filing, time stamp it, create a docket entry, place it in the file,
and send a copy of the time-stamped document to counsel of record.
(Footnote Continued Next Page)
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On appeal, Appellant raises the following issue for our review.
I. Were the [A]ppellant’s guilty pleas knowing[,]
intelligent[,] and voluntary?
Appellant’s Brief at 2.
“When an appellant enters a guilty plea, [he] waives [his] right to
challenge on appeal all non-jurisdictional defects except the legality of [his]
sentence and the validity of [his] plea.” Commonwealth v. Pantalion, 957
A.2d 1267, 1271 (Pa. Super. 2008) (citation and internal quotation marks
omitted). The decision to grant a motion to withdraw a guilty plea lies in the
sound discretion of the trial court. Commonwealth v. Muhammad, 794
A.2d 378, 382 (Pa. Super. 2002). After sentencing, a defendant can
withdraw his guilty plea only upon a “showing of prejudice on the order of
manifest injustice.” Id. at 383. “[A] manifest injustice occurs when a plea
_______________________
(Footnote Continued)
Pa.R.Crim.P. 576(A)(4). In this case, Rule 576(A)(4) was not complied with,
as there is no indication that a copy of the pro se motion was forwarded to
Appellant’s counsel. Nevertheless, the trial court scheduled a hearing on the
motion, Appellant’s counsel apparently received notice of the hearing, and
he represented Appellant at the hearing. At the hearing, the trial court
disposed of the motion on its merits and later prepared an opinion in support
of its decision. Under these circumstances, we conclude that the actions of
the trial court and Appellant’s trial counsel perfected the post-sentence
motion. See Commonwealth v. Rojas, 874 A.2d 638, 643 (Pa. Super.
2005) (rejecting the argument that counseled appellant’s pro se post-
sentence motions were a nullity and concluding said motions tolled the
appeal period under Rule 720); cf. Commonwealth v. Cooper, 27 A.3d
994, 1007 (Pa. 2011) (concluding pro se notice of appeal, filed before timely
counseled post-sentence motions, is not automatically a legal nullity, but a
premature appeal that was perfected upon the trial court’s disposition of
counseled post-sentence motions). Therefore, we will review the merits of
Appellant’s issue.
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is not tendered knowingly, intelligently, voluntarily, and understandingly.”
Commonwealth v. Gunter, 771 A.2d 767, 771 (Pa. 2001).
These standards avoid allowing the defendant to use a plea to test the
severity of the punishment, withdrawing it when the sentence is
unexpectedly harsh. Commonwealth v. Shaffer, 446 A.2d 591, 593 (Pa.
1982). Accordingly, disappointment in the length of the sentence imposed
after a guilty plea does not rise to the level of manifest injustice as long as
the plea is knowing, intelligent, and voluntary. Muhammad, supra at 383.
Following sentencing on a negotiated guilty plea, the defendant may,
however, withdraw his plea if the trial court imposes a sentence in excess of
the bargained-for sentence. Commonwealth v. Tann, 79 A.3d 1130, 1133
(Pa. Super. 2013), citing Commonwealth v. Wallace, 870 A.2d 838, 843
n.5 (Pa. 2005); Pa.R.Crim.P. 591(A).
To determine whether Appellant’s guilty plea was knowing, intelligent,
and voluntary, we must examine the totality of the circumstances
surrounding the guilty plea, including the colloquy. “Our law presumes that
a defendant who enters a guilty plea was aware of what he was doing. He
bears the burden of proving otherwise.” Commonwealth v. Yeomans, 24
A.3d 1044, 1047 (Pa. Super. 2011) (citation omitted).
Here, Appellant contends that the trial court erred in denying his post-
sentence motion to withdraw his negotiated guilty plea because it was not
knowing, intelligent, or voluntary, as he believed the sentencing court would
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mitigate the sentence below 20 to 40 years’ imprisonment. Appellant’s Brief
at 7. He also contends that he thought the sentences on the PIC and the
firearms not to be carried without a license offenses were to run concurrent
to each other and the murder offense, not consecutive. Id. The record
belies these assertions.
After examining the certified record, we conclude that the trial court
imposed the exact agreed-upon sentence of 25 to 50 years’ imprisonment.
The written guilty plea colloquy provides, “[t]here is no plea bargain of any
kind, except that the District Attorney promised to: Recommend a sentence
of not more than 25 to 50 years…. Drop [] all remaining charges. … [I]f the
judge does not agree with the plea bargain or agreement, I can withdraw my
guilty plea ….” Written Guilty Plea Colloquy, 7/8/13, at 1. The trial court, in
the oral guilty plea colloquy, advised Appellant that in exchange for his guilty
plea to third-degree murder, the Commonwealth would not pursue the
charges of first-degree murder or second-degree murder. N.T., 7/8/13, at
21. The trial court explained the agreed terms of the negotiated guilty plea
in the following exchange.
THE COURT: You are entering into a
negotiated guilty plea. What that means is that the
District Attorney and your attorney agreed as to
what your sentence should be. I don’t have to go
along with that agreement but if I don’t, you have
the right to just go forward with the jury trial, do you
understand that, or to withdraw your plea and go
before another Judge, if I allowed that.
Do you understand that?
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THE DEFENDANT: Yes.
THE COURT: The agreement in your case is
that in exchange for your plea to murder of the third
degree, you will receive a sentence of 20 to 40
years[’] incarceration. On the charge of Violation of
the Uniform Firearms Act, you will receive a sentence
of 2-and-a-half to 5 years to run consecutively, that
means that that starts after the 20 years is up and
on the possession of an instrument of crime, 2-and-
a-half to 5 years to run consecutively meaning that
starts after the 2-and-a-half years on the gun charge
is up, for a total sentence of 25 to 50 years.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Other than what I have just told
you, did anyone promise you anything in order to get
you to plead guilty, other than the 25 to 50?
MR. SEAY[, Appellant’s counsel]: The
Commonwealth agreed for it to run concurrently with
the sentence he is now serving.
THE COURT: This is an agreement that this
sentence is to run concurrently to the sentence you
are serving, any sentence now serving.
Did anyone promise you anything other than
that, plus what I just told you?
THE DEFENDANT: No.
…
THE COURT: Knowing everything now that I
have just explained to you about how you have the
right to have a trial and that you can pick a jury --
we have a panel outside -- do you still want to plead
guilty?
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THE DEFENDANT: Yes.
THE COURT: I find the entry of the plea
knowing, intelligent and voluntary.
N.T., 7/8/13, at 22-24.
Contrary to Appellant’s assertion, the parties agreed in the written
plea agreement to a sentence of not more than 25 to 50 years’
imprisonment, on the record Appellant acknowledged that this aggregate
sentence of 25 to 50 years’ imprisonment was a result of the sentences for
his three charges running consecutively, and he agreed to his three
sentences running consecutively. Moreover, there is no indication in the oral
guilty plea colloquy that the trial court would mitigate the sentence to less
than 20 to 40 years’ incarceration. It is clear that Appellant and the
Commonwealth agreed that Appellant’s sentence would be 25 to 50 years’
imprisonment, which is the sentence the trial court imposed. Additionally, in
the oral guilty plea colloquy, the trial court explicitly explained that all three
of Appellant’s sentences in this case would run consecutively to each other
and concurrent to any other sentences Appellant was currently serving, and
Appellant agreed to that sentence. While Appellant may now be
disappointed that he agreed to said sentence, it is clear that the plea was
knowing, intelligent, and voluntary and the sentence imposed was not in
excess of the bargained-for sentence. See Muhammad, supra; Gunter,
supra; Tann, supra.
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Based on the foregoing, we agree with the trial court’s finding that
Appellant entered into a valid negotiated guilty plea and has not made a
showing of manifest injustice. See Muhammad, supra. Accordingly, the
trial court’s July 8, 2013 judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2014
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Com. v. Reed, M.
Combined Opinion