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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VINCENT VILLONE,
Appellant No. 2368 EDA 2014
Appeal from the Judgment of Sentence July 14, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014653-2012
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 08, 2015
Vincent Villone appeals from the judgment of sentence of twenty-five
to fifty years’ incarceration, imposed July 14, 2014, following a negotiated
guilty plea to charges of third-degree murder, carrying a firearm without a
license, and possessing an instrument of crime.1 Additionally, his court-
appointed counsel, James A. Lammendola, Esq., seeks to withdraw his
representation of Appellant pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We
affirm the judgment of sentence and grant counsel’s petition to withdraw.
In July 2014, Appellant entered a negotiated guilty plea to the above-
listed charges. Appellant agreed that the Commonwealth could establish,
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1
See 18 Pa.C.S. §§ 2502(c), 6106(a)(1), and 907(a), respectively.
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based upon eyewitness accounts, medical and ballistics evidence, and a
confession made by him to the police, that Appellant shot Richard Anthony
Jacovini-Nebbio twice during a drug transaction in October 2012. See Notes
of Testimony (N.T.), 07/14/2014, at 37-49. Mr. Jacovini-Nebbio died from
his wounds. Id.
Following a lengthy colloquy, the trial court accepted Appellant’s plea
and imposed sentence. Id. at 68. Notably, Appellant did not seek to
withdraw his plea prior to the imposition of sentence. The court apprised
Appellant of his post-sentence and appellate rights. Id. at 71-73. Appellant
did not file post-sentence motions. However, Appellant timely appealed and
filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a
responsive opinion.
In February 2015, Attorney Lammendola entered his appearance on
Appellant’s behalf. In May 2015, Attorney Lammendola filed a petition to
withdraw from representing Appellant. He has also filed an Anders brief,
asserting that there are no non-frivolous issues that could be raised in this
appeal.
This Court must first pass upon counsel's petition to withdraw
before reviewing the merits of the underlying issues presented
by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief must:
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(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel's conclusion that the appeal is
frivolous; and
(4) state counsel's reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a copy
of the Anders brief to his client. Attending the brief must be a
letter that advises the client of his right to: “(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of the
court[']s attention in addition to the points raised by counsel in
the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
(2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, this Court must then “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
Here, Attorney Lammendola’s Anders brief complies with the above-
stated requirements. He includes a summary of the relevant factual and
procedural history; he refers to portions of the record that could arguably
support Appellant’s claims; and he sets forth his conclusion that Appellant’s
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appeal is frivolous. He explains his reasons for reaching that determination,
supporting his rationale with citations to the record and pertinent legal
authority. Attorney Lammendola also states in his petition to withdraw that
he has supplied Appellant with a copy of his Anders brief, and he attaches a
letter directed to Appellant in which he informs him of the rights enumerated
in Nischan. Accordingly, counsel has complied with the technical
requirements for withdrawal.
We will now independently review the record to determine if
Appellant’s claims are frivolous, and to ascertain whether there are other,
non-frivolous issues Appellant could pursue on appeal. According to
Attorney Lammendola, Appellant contends that (1) there was no factual
basis to support his plea, and (2) his guilty plea was not knowing, intelligent,
and voluntary. See Appellant’s Anders Brief at 11; see also Pa.R.A.P.
1925(b) Statement, 08/28/2014.2
Appellant challenges the validity of his guilty plea. An appellant must
preserve a challenge to the validity of a guilty plea during the plea colloquy
or by filing a post-sentence motion. See Commonwealth v. Lincoln, 72
A.3d 606, 609-10 (Pa. Super. 2013). Failure to do so results in waiver. Id.
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2
We have reversed the order of Appellant’s claims for ease of analysis, as
the introduction of an adequate, factual basis of his crimes is a specific
prerequisite to the more general conclusion that Appellant’s plea was
knowing, intelligent, and voluntary.
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Here, Appellant failed to preserve a challenge to his plea. Accordingly, we
deem it waived.3
Absent waiver, Appellant’s claims are nonetheless frivolous.
To be valid, a guilty plea must be knowingly, voluntarily and
intelligently entered. [A] manifest injustice occurs when a plea
is not tendered knowingly, intelligently, voluntarily, and
understandingly. The Pennsylvania Rules of Criminal Procedure
mandate pleas be taken in open court and require the court to
conduct an on-the-record colloquy to ascertain whether a
defendant is aware of his rights and the consequences of his
plea. Under [Pa.R.Crim.P.] 590, the court should confirm, inter
alia, that a defendant understands: (1) the nature of the charges
to which he is pleading guilty; (2) the factual basis for the plea;
(3) he is giving up his right to trial by jury; (4) and the
presumption of innocence; (5) he is aware of the permissible
ranges of sentences and fines possible; and (6) the court is not
bound by the terms of the agreement unless the court accepts
the plea. The reviewing Court will evaluate the adequacy of the
plea colloquy and the voluntariness of the resulting plea by
examining the totality of the circumstances surrounding the
entry of that plea. Pennsylvania law presumes a defendant who
entered a guilty plea was aware of what he was doing, and the
defendant bears the burden of proving otherwise.
Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014) (internal
citations and quotation marks omitted).
Specifically, Appellant asserts that the Commonwealth failed to
establish a factual basis for his crimes. A sufficient factual basis exists
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3
Under certain limited circumstances in the context of an Anders appeal,
we will review the merits of an issue otherwise waived. See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (examining
the merits of a challenge to discretionary aspects of a sentence where
counsel failed to include Pa.R.A.P. 2119(f) statement within an Anders
brief).
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where “the facts acknowledged by the defendant constitute the offense(s)
charged[.]” Commonwealth v. Young, 695 A.2d 414, 417 (Pa. Super.
1997).
Here, Appellant pleaded guilty to third-degree murder, carrying a
firearm without a license, and possessing an instrument of crime. See, e.g.,
Commonwealth v. Morris, 958 A.2d 569, 576 (Pa. Super. 2007) (defining
third-degree murder as “a killing which is neither intentional nor committed
during the perpetration of a felony, but contains the requisite malice”);
Commonwealth v. Lopez, 57 A.3d 74, 80 (Pa. Super. 2012) (accepting as
sufficient a stipulation that defendant was not licensed to carry a firearm);
Commonwealth v. Monroe, 422 A.2d 193, 195 (Pa. Super. 1980)
(accepting as sufficient testimonial evidence that a defendant, who used a
firearm to shoot victim, possessed an instrument of crime).
The Commonwealth set forth the factual basis of Appellant’s crimes in
detail. See N.T. at 37-49. According to the Commonwealth, eyewitness
testimony would establish that Appellant shot the victim twice. Id. at 43,
46. The medical examiner would testify that the cause of death was gunshot
wounds to the lower abdominal area and that the manner of death was
homicide. Id. at 40. Ballistics evidence would establish that both gunshots
originated from the same .380 caliber firearm. Id. at 47-48. Appellant
confessed his guilt to the police two days after the shooting. Id. at 47.
Appellant also stipulated that he was not licensed to carry a firearm. Id. at
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66-67. Finally, Appellant acknowledged that the Commonwealth’s
representation was “a fair account [of] what happened.” Id. at 49. These
facts, acknowledged by Appellant, constituted the basis for the crimes
charged.
More generally, the trial court comported with the requirements of
Rule 590. The court engaged Appellant in a lengthy colloquy, apprising
Appellant of his rights, the nature of the charges against him, and the
factual basis of those charges. See N.T. at 7-29, 29-37, and 37-49.
Appellant stated repeatedly that he understood the proceedings and that he
was entering his guilty plea knowingly, intelligently, and voluntarily. Id.;
see also Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa. Super.
1999) (“A defendant is bound by the statements he makes during his plea
colloquy, and may not assert grounds for withdrawing the plea that
contradict statements made when he pled.”). Moreover, Appellant
acknowledged that he understood and willingly signed a written, guilty plea
colloquy form. Id. at 56-57. Based upon the totality of these
circumstances, Appellant’s plea was knowing, intelligent and voluntary, and
we discern no manifest injustice.
For the above reasons, Appellant’s claims are frivolous. Moreover, our
review of the record reveals no other non-frivolous issues Appellant could
assert on appeal.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2015
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