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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRONE DAVIS :
:
Appellant : No. 3285 EDA 2019
Appeal from the Judgment of Sentence Entered May 23, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005941-2015
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 4, 2020
Tyrone Davis (Davis) appeals nunc pro tunc from the judgment of
sentence imposed by the Court of Common Pleas of Philadelphia County (trial
court) on May 23, 2017, following his nolo contendere plea to Aggravated
Assault, Violation of the Persons Not to Possess Section of the Uniform
Firearms Act (VUFA) and Possession of an Instrument of Crime (PIC).1
Counsel has filed an application to withdraw pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We grant counsel’s application to withdraw and affirm
Davis’s judgment of sentence.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2702(a), 6105(a)(1) and 907(a), respectively.
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I.
We take the following pertinent facts and procedural history from our
independent review of the record. On March 26, 2015, Davis entered the
house of Rosalyn Scott (Scott), his then-girlfriend and the mother of his three
children, without her permission. He woke Scott by holding a gun to her head
and struck her in the head with the gun multiple times while she was holding
their baby. Davis then fled from the house and went to his workplace. Despite
Davis’s warning not to do so, Scott called the police. She gave the police
Davis’s name and identified what he was wearing and the backpack he was
carrying. She also advised that she believed Davis had gone to his workplace,
a car stereo store, and gave the police the address.
The police went to the location provided by Scott and found that the
light was on inside the locked store. When the police knocked at the door,
Davis voluntarily allowed them inside. They patted him down for weapons,
finding a bullet in his pocket, and, upon performing a search for officer safety,
the officers saw a gun on the floor of the bathroom and a backpack matching
Scott’s description. The gun was loaded and operable and the bag contained
42 bullets.
On March 27, 2015, Davis was arrested for Aggravated Assault and
related charges. While represented by appointed trial counsel, Frederick
Lowenberg, Esquire, Davis filed multiple pro se motions, including a pretrial
motion on June 25, 2015, seeking to quash the return of transcript and original
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papers, a January 25, 2016 motion for discovery and a September 6, 2016
motion challenging the validity of his arrest and search. The trial court did
not respond to any of these pro se motions.
On January 30, 2017, Davis entered an open nolo contendere plea to
Aggravated Assault, VUFA and PIC, and an extensive oral colloquy was
conducted. The Commonwealth and defense counsel agreed that Davis was
not authorized to have a firearm because of a previous felony conviction for
rape. On May 23, 2017, the court sentenced Davis to an aggregate term of
incarceration of not less than six and one-half nor more than eighteen years.
Davis did not file a direct appeal.
On March 22, 2018, Davis filed a timely pro se petition pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, in which he
maintained that his stop, seizure and arrest were unconstitutional and that
plea counsel was ineffective. Appointed counsel filed a Turner/Finley2 “no
merit” letter and the court provided Davis with Rule 907 Notice of its Intent
to Dismiss the petition without a hearing. See Pa.R.Crim.P. 907(1). On July
8, 2018, after receiving Davis’s response to the Notice, the court formally
dismissed the petition. Davis appealed to this Court, raising ten issues for our
review. However, the Court addressed only his ninth issue, “Whether the
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2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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[trial] court erred by preventing [Davis] from timely filing his direct appeal
motion[?]” (Commonwealth v. Davis, 2019 WL 3458780, at *2 (Pa. Super.
filed July 31, 2019) (unpublished memorandum) (record citation omitted)).
However, due to the insufficiently developed record, this Court was unable to
review the question and we remanded for the PCRA court to appoint new
counsel and conduct proceedings to consider whether Davis was entitled to
file a direct appeal nunc pro tunc. (See id. at *3).
On remand, appointed counsel filed a PCRA petition on Davis’s behalf on
September 20, 2019. The court granted the petition and reinstated Davis’s
direct appeal rights. On November 20, 2019, Davis filed a counseled nunc pro
tunc notice of appeal to his May 23, 2017 Judgment of Sentence. Counsel
filed a Rule 1925(c)(4) Statement of Intent to file an Anders Brief on appeal.
Appointed counsel has filed an Anders brief and application to withdraw in
this Court.
II.
A.
Before reaching Davis’s issue, we must consider counsel’s request to
withdraw. See Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009). It is well-settled that:
Court-appointed counsel who seek to withdraw from representing
an appellant on direct appeal on the basis that the appeal is
frivolous must:
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(1) petition the court for leave to withdraw stating that,
after making a conscientious examination of the record, counsel
has determined that the appeal would be frivolous;
(2) file a brief referring to anything that arguably might
support the appeal but which does not resemble a “no-merit”
letter or amicus curiae brief; and
(3) furnish a copy of the brief to the defendant and advise
the defendant of his or her right to retain new counsel or raise any
additional points that he or she deems worthy of the court’s
attention.
Id. (citation omitted). Further, our Supreme Court ruled in Santiago, supra,
that Anders briefs must contain “a discussion of counsel’s reasons for
believing that the client’s appeal is frivolous[.]” Santiago, supra at 360.
Counsel’s Anders brief and application to withdraw substantially comply
with the applicable technical requirements and reveal that he has made “a
conscientious examination of the record [and] determined that the appeal
would be frivolous[.]” Lilley, supra at 997 (citation omitted). Additionally,
the record establishes that counsel served Davis with a copy of the Anders
brief and application to withdraw and a letter of notice, which advised him of
his right either to retain new counsel or to proceed pro se and raise additional
issues to this Court. See id.; (see also Application to Withdraw as Counsel,
1/20/20, Exhibit A). Furthermore, the application and brief cite “to anything
that arguably might support the appeal[.]” Lilley, supra at 997 (citation
omitted); (see also Anders Brief, at 12-26). As noted by our Supreme Court
in Santiago, the fact that some of counsel’s statements arguably support the
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frivolity of the appeal does not violate the requirements of Anders. See
Santiago, supra at 360-61.
Having concluded that counsel’s petition and brief comply with the
technical Anders requirements, we must “conduct [our] own review of the
trial court’s proceedings and render an independent judgment as to whether
the appeal is, in fact, wholly frivolous.” Lilley, supra at 998 (citation
omitted).
Davis raises eight issues for our review: (1) the plea court committed
an error of law in allowing [him] to be prosecuted for Aggravated Assault
where there was no probable cause; (2) the plea court committed an error of
law in allowing him to be prosecuted for VUFA and PIC where the evidence
was illegally seized without probable cause, exigent circumstances or a valid
search warrant; (3) the plea court violated Rule 600; (4) his nolo contendere
plea was improperly induced; (5) “[he] has the right to raise procedural
default claims on direct appeal[;]” (6) “[he] has the right to raise miscarriage
of justice claims on direct appeal[;]” (7) he has the right to raise a claim
related to constitutional rights recognized by the United States and
Pennsylvania Supreme Courts to apply retroactively; and (8) “[he] has the
right to raise ineffectiveness of counsel claims on direct appeal.” (Anders
Brief, at 8-26).
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B.
As a preliminary matter, it is well-settled that entering a plea waives all
non-jurisdictional defects and defenses, as well as the right to challenge
anything but the legality of sentence and the validity of the plea. See
Commonwealth v. Jones, 929 A.2d 205, 208 (Pa. 2007). Davis expressly
acknowledged this at his plea hearing and in his written nolo contendere
colloquy form. (See N.T. Plea Hearing, 1/30/17, at 10-11; Written Nolo
Contendere Colloquy, 1/30/17, at 3). The court also advised him that by
entering a plea, Davis was giving up his right to challenge any pretrial issues,
including the validity of the search and seizure and any alleged Rule 600
violations. (See N.T. Plea Hearing, at 9; Written Nolo Contendere Colloquy,
at 2). Therefore, the only issue properly before this Court is Davis’s fourth,
in which he challenges the validity of his plea. (See Anders Brief, at 12).3
To withdraw a plea after sentencing, the defendant must show prejudice
that rises to the level of manifest injustice. See Commonwealth v. Byrne,
833 A.2d 729, 737 (Pa. Super. 2003). “A plea rises to the level of manifest
injustice when it was entered into involuntarily, unknowingly, or
unintelligently.” Id. (citation omitted). A defendant’s disappointment in the
sentence imposed is not manifest injustice. See id. Prior to accepting a
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3This Court considers the totality of the circumstances to determine a plea’s
validity. See Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super.
2001).
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defendant’s nolo contendere plea, the court “must delve into six areas: 1) the
nature of the charges, 2) the factual basis for the plea, 3) the right to a jury
trial, 4) the presumption of innocence, 5) the sentencing ranges, and 6) the
plea court’s power to deviate from any recommended sentence.”
Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005)
(citations omitted); see also Pa.R.Crim.P. 590, Comment. “A defendant is
bound by the statements made during the plea colloquy, and [he] may not
later offer reasons for withdrawing the plea that contradict statements made
when he pled.” Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super.
2012), appeal denied, 63 A.3d 773 (Pa. 2013) (citation omitted).
Here, our review of the record confirms that the court ensured that Davis
understood the nature of the charges against him, the factual basis of the
plea, his right to a jury trial, the presumption of innocence, the potential
sentencing range and that the judge was not bound by the recommended
sentence. (See N.T. Plea, at 6-9, 11-13; Written Plea Colloquy, at 1-2). The
court explained that by pleading nolo contendere, Davis gave up his right to
challenge pre-trial issues, including those regarding the suppression of
evidence and Rule 600. (See N.T. Plea, at 9; Written Plea Colloquy, at 2).
Davis stated that he was satisfied with counsel’s performance and that he
read, understood and signed the written plea form. (See N.T. Plea, at 7, 11;
Written Plea Colloquy, at 3).
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Hence, we conclude that Davis’s claim that he did not voluntarily,
knowingly and intelligently enter his guilty plea is belied by the record.
Therefore, his issue lacks merit and he is due no appellate relief.
C.
Although Davis waived the remainder of his issues by entering his plea,
we will review them briefly for the sake of completeness.
1.
In his first issue, Davis alleges that the trial court erred in allowing the
count for Aggravated Assault to go forward because there was not probable
cause to support the charge.4 (See id. at 8-9).
It is well-settled that for a case to proceed beyond the preliminary
hearing, the Commonwealth must establish a prima facie case. See Jones,
supra at 208.
The Commonwealth establishes a prima facie case when it
produces evidence that, if accepted as true, would warrant the
trial judge to allow the case to go to a jury. … Inferences
reasonably drawn from the evidence of record which would
support a verdict of guilty are to be given effect, and the evidence
must be read in the light most favorable to the Commonwealth’s
case.
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4 By entering a nolo contendere plea, Davis stated that he was not contesting
the allegations against him, and admitted that, if proven, they would meet the
elements to establish Aggravated Assault, VUFA and PIC. (See N.T. Plea
Hearing, at 12-14); Commonwealth v. Moser, 999 A.2d 602, 606 (Pa.
Super. 2010), appeal denied, 20 A.3d 485 (Pa. 2011).
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Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001) (citations
and quotation marks omitted).
A person commits aggravated assault when he “attempts to cause
serious bodily injury to another, or causes such injury intentionally, knowingly
or recklessly under circumstances manifesting extreme indifference to the
value of human life[.]” 18 Pa.C.S. § 2702(a)(1); see also Commonwealth
v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (en banc), appeal denied,
78 A.3d 1089 (Pa. 2013) (“For aggravated assault purposes, an attempt is
found where an accused who possesses the required, specific intent acts in a
manner which constitutes a substantial step toward perpetrating a serious
bodily injury upon another.”) (citation omitted).
In this case, Davis pleaded no contest to facts that he broke into Scott’s
home and put a gun to her head, repeatedly tapping her with it. (See N.T.
Plea, at 12). Based on these facts and Davis’s plea, the court found Davis
guilty of Aggravated Assault.
Based on the foregoing, we conclude that the court did not commit an
error of law in finding that the Commonwealth established probable cause that
Davis possessed a specific intent to commit Aggravated Assault when he took
a substantial step in causing serious bodily injury to Scott. This claim would
lack merit.
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2.
In his second allegation of error, Davis claims that the evidence
supporting the charges of VUFA and PIC “was unlawfully seized” because the
police lacked “probable cause, exigent circumstances, or a valid search
warrant.” (Anders Brief, at 10).
Under both the Fourth Amendment of the United States
Constitution and Article I, Section 8 of the Pennsylvania
Constitution, a search conducted without a warrant is deemed to
be unreasonable, and therefore, constitutionally impermissible,
unless an established exception applies. One such exception is
consent, voluntarily given. Consent may be express or implied.
Commonwealth v. Fredrick, ___ A.3d ___, 2020 WL 1527087, at *3 (Pa.
Super. March 31, 2020) (citations and quotation marks omitted).
Further, pursuant to the plain view doctrine:
evidence in plain view of the police can be seized without a
warrant. The plain view doctrine applies if 1) police did not violate
the Fourth Amendment during the course of their arrival at the
location where they viewed the item in question; 2) the item was
not obscured and could be seen plainly from that location; 3) the
incriminating nature of the item was readily apparent; and 4)
police had the lawful right to access the item.
Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012),
appeal denied, 51 A.3d 837 (Pa. 2012) (citations omitted).
Here, evidence of record establishes that based on the information
provided by Scott, the police went to the stereo store where Davis worked to
look for him. Upon seeing the lights on in the store late at night, they knocked
on the door, Davis unlocked it and he voluntarily allowed them inside. (See
PCRA Petition, Exhibit 1, The Philadelphia Police Investigation Interview, at 1).
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This consent excused the warrant requirement and the police entry into the
store was constitutional. See Fredrick, supra at *3.
Upon entering the store, the officers frisked Davis for weapons, felt
something that based on the officer’s training and experience, seemed like a
bullet in his pocket. Upon walking through the store to secure it for officer
safety, an officer went into the bathroom where he observed a black gun and
backpack matching the description provided by Scott in plain view. (See PCRA
Petition, Exhibit 1, The Philadelphia Police Investigation Interview, at 1).
Under the totality of the circumstances, the incriminating nature of this
evidence was readily apparent to the officers. See Anderson, supra at 1248.
Based on the foregoing, Davis’s second claim, that the charges of VUFA
and PIC were not valid because they were based on evidence seized during an
illegal search, would lack merit, even if not waived.
3.
In his next issue, Davis maintains that “[t]he plea court committed an
error of law in allowing procedural default which caused [him] to be
imprisoned for an inordinate amount of time and prosecuted.” (Anders Brief,
at 11). We interpret this allegation as raising a Rule 600 claim.5
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5 Appellate review of a Rule 600 claim is for an abuse of discretion and is
limited to the record evidence and the trial court’s findings. See
Commonwealth v. Plowden, 157 A.3d 933, 936 (Pa. Super. 2017), appeal
denied, 170 A.3d 1043 (Pa. 2017).
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Pursuant to Rule 600, trial must commence within one year “from the
date on which” a written complaint is filed against the defendant. Pa.R.Crim.P.
600(A)(2)(a). The clock stops running for Rule 600 purposes during
excludable and excusable time. See Commonwealth v. Moore, 214 A.3d
244, 248 (Pa. Super. 2019), appeal denied, 224 A.3d 360 (Pa. 2020). Delay
that is not attributable to the Commonwealth’s failure to exercise due diligence
and is caused by the defendant is “excludable.” See Pa.R.Crim.P. 600(C)(1);
Moore, supra at 248. “Excusable” delay is “delay … caused by circumstances
beyond the Commonwealth’s control and despite its due diligence.” Moore,
supra at 249.
“Due diligence includes … listing a case for trial prior to the run date,
preparedness for trial within the run date, and keeping adequate records to
ensure compliance with Rule 600.” Id. Any “period of delay … outside the
control of the Commonwealth and not the result of the Commonwealth’s lack
of due diligence” extends the adjusted run date, resulting in the Rule 600 run
date. Id.
Here, the Commonwealth filed the Complaint against Davis on March
27, 2015, making the mechanical run date Monday, March 28, 2016. The
Commonwealth requested a three-week continuance on May 1, 2015, and one
for 18 days on May 22, 2015. Davis was granted 94 days in continuances,
which was excludable time, and resulted in an adjusted run date of June 30,
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2016. A waiver trial was scheduled for April 19, 2016, prior to the adjusted
run date’s expiration.
On April 19, 2016, the scheduled trial date, the defense requested a
two-day continuance. Thereafter, trial was continued for another 284 days,
none of which was attributable to the Commonwealth, making April 12, 2017,
the final Rule 600 run date. Hence, Davis’s January 30, 2017 plea was entered
before the adjusted run date’s expiration. Based on the foregoing, even if this
issue was not waived, Davis would be due no relief.
4.
In his fifth through seventh claims of error, Davis states that he has the
right to raise “procedural default,” “miscarriage of justice” and retroactive
constitutional right claims in this appeal. (Anders Brief, at 14). His vague
statements, without more, render us unable to conduct a review and Davis is
due no relief. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009), cert. denied, 562 U.S. 906 (2010) (“[W]here an appellate brief fails to
provide any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that claim
is waived.”).
5.
In his final claim, Davis argues that counsel was ineffective. (See
Anders Brief, at 15). However, generally, this Court will not consider
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ineffectiveness claims until collateral review. See Commonwealth v. Grant,
813 A.2d 726, 738 (Pa. 2002). Therefore, we will not review this issue.6
Hence, for all these reasons, Davis is due no relief on his claims.
Moreover, our independent review of the record does not reveal any non-
frivolous issues for our review. We affirm the judgment of sentence and grant
counsel’s application to withdraw.
Judgment of sentence affirmed. Counsel’s application to withdraw
granted.
President Judge Panella joins the memorandum.
Judge Nichols did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/04/2020
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6 Moreover, if Davis intends to allege that counsel was ineffective in relation
to his plea, he would not be entitled to relief because, as discussed in
reviewing his fourth issue, his nolo contendere plea was voluntary, intelligent
and knowing.
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