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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GEORGE T. MC DUFFIE :
:
Appellant : No. 299 EDA 2019
Appeal from the Order Entered December 19, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000599-2015
BEFORE: LAZARUS, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: Filed: September 17, 2020
Appellant, George T. McDuffie, appeals from the December 19, 2018
Judgment of Sentence entered in the Philadelphia County Court of Common
Pleas following his open guilty plea to charges of Aggravated Assault, Robbery,
Burglary, Conspiracy to Commit Aggravated Assault, and Possession of a
Firearm Prohibited.1 Appellant purports to challenge, inter alia, the
constitutionality of Pennsylvania Rule of Criminal Procedure 556, which
permits the Commonwealth to proceed by way of an indicting grand jury when
witness intimidation has occurred, is occurring, or is likely to occur. He also
purports to challenge the trial court’s denial of his Motion to Withdraw Guilty
Plea. For the reasons below, we affirm.
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1 18 Pa.C.S. §§ 2702(a), 3701(a)(1)(i), 3502(a)(4), 903, 6105(a)(1),
respectively.
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The relevant facts and procedural history are as follows. On December
14, 2014, Appellant and two other men, all three of whom were armed,
forcibly entered the victim’s home in Philadelphia. One of the men struck the
victim in the head with his firearm. The armed men proceeded through the
victim’s home, removed items, and then fled.
Police officers nearby observed Appellant come out of the rear driveway
behind the victim’s house and crouch behind or near a pickup truck. The
officers ordered Appellant to stop, and Appellant gave chase before the officers
arrested him. The officers recovered a .380 caliber handgun from on top of
the tire of the pickup truck beside which Appellant had crouched. The officers
also recovered a bracelet belonging to the victim’s wife and a ski mask from
the sidewalk near the pickup truck.
Police officers transported Appellant to the 18th Police District station.
When the officers removed Appellant from their patrol car at the station, they
discovered the victim’s wallet in the back seat of the car.
Appellant was ineligible to possess a firearm due to a 2001 Aggravated
Assault conviction.
The Commonwealth filed a Motion to have Appellant’s case presented to
an indicting grand jury pursuant to Pa.R.Crim.P. 556,2 which the trial court
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2As noted above, Pa.R.Crim.P. 556 provides, in relevant part, that a court of
common pleas may convene an indicting grand jury “only in cases in which
witness intimidation has occurred, is occurring, or is likely to occur.”
Pa.R.Crim.P. 556(A). In the Motion to Proceed by Indicting Grand Jury, the
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granted on January 12, 2015. On January 15, 2015, the grand jury indicted
Appellant on multiple charges, including those listed above.3
On December 12, 2015, Appellant filed a Motion to Dismiss the grand
jury indictment pursuant to Pa.R.Crim.P. 556. Appellant asserted that the
then-recently-enacted Rule 556 was unconstitutional;4 that the
Commonwealth failed to meet its burden of establishing probable cause that
witness intimidation had occurred, was occurring, or was likely to occur in this
case pursuant to Rule 556.2; that the Commonwealth violated the
requirements set forth in Rule 556 in the summoning, selecting, and
overseeing of the grand jury; and that the Commonwealth’s evidence was
insufficient to make out a prima facie case against him. Motion, 12/12/15.
On March 15, 2016, Appellant filed a Motion to Disclose Indicting Grant Jury
Discovery.5 On May 18, 2016, the trial court denied these Motions.
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Commonwealth alleged that the “victim has expressed his fear of testifying
and of possible reprisal by [Appellant] and also multiple unidentified co-
defendants.” Motion, 1/12/15, at 1.
3 The grand jury also indicted Appellant on charges of Firearms Not to be
Carried Without a License, Carrying Firearms in Public in Philadelphia, and
Possession of an Instrument of Crime.
4 The legislature enacted Pa.R.Crim.P. 556 on June 21, 2012, effective
December 18, 2012. Rule 556 underwent amendment effective November 1,
2015.
5 Appellant renewed this Motion on August 23, 2016.
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On January 4, 2017, Appellant filed pro se another Motion to Quash his
grand jury indictment, which he amended on January 30, 2017, raising
essentially the same issues that he raised in his previously-filed counselled
Motion to Quash.6 The trial court held a hearing on the Motions, following
which it denied them.
Appellant filed numerous additional pro se pre-trial motions. Ultimately,
on March 27, 2018, Appellant, still proceeding pro se, entered a guilty plea to
the above charges.7
The trial court sentenced Appellant that same day for his conviction of
Possession of a Firearm Prohibited to 3 years of reporting probation, but
deferred sentencing on Appellant’s other convictions pending a Pre-Sentence
Investigation and mental health evaluation. On May 29, 2018, Attorney
Shawn K. Page entered his appearance on Appellant’s behalf. On May 31,
2018, the trial court sentenced Appellant to an aggregate term of 3 to 6 years’
incarceration followed by 5 years of reporting probation.
On June 4, 2018, Appellant filed a Motion to Withdraw his Plea of Guilty
asserting that he was innocent of the offenses to which he pleaded guilty and
that, on March 16, 2018, a witness provided Confidential Investigative
Services, Inc. (“CIS”), a private investigation company appointed by the court
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6 Following an October 7, 2016 Grazier hearing, the trial court permitted
Appellant to proceed pro se. On January 3, 2017, the court appointed
Attorney Jules Szantos as standby counsel.
7Attorney Szantos was present at Appellant’s guilty plea hearing and acted
as standby counsel.
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on Appellant’s behalf, with a statement allegedly exculpating Appellant.
Appellant claimed that CIS provided his standby counsel with information
pertaining to the exculpatory statement on March 19, 2018, but that Appellant
himself did not “officially receive” a copy of the letter from CIS until March 30,
2018, three days after he entered his guilty plea. Appellant did not aver in
the Motion that his standby counsel did not inform him of the exculpatory
statement prior to entering his guilty plea. The trial court denied the Motion
on December 19, 2018.
This timely appeal followed. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant raises the following two issues on appeal:
1. The [t]rial [c]ourt erred in denying Appellant’s [M]otion to
[Q]uash the grand jury presentment and/or indictment as
unconstitutional in the manner in which it was applied to
Appellant.
2. The[t]rial [c]ourt erred in denying Appellant’s [M]otion to
[W]ithdraw [G]uilty [P]lea.
Appellant’s Brief at 4.
Although in his first issue Appellant purports to challenge the
constitutionality of Pa.R.Crim.P. 556, this Court’s review of Appellant’s
argument indicates that Appellant actually challenges the trial court’s denial
of his Motion to Quash his grand jury indictment. Appellant’s Brief at 9-10.
Appellant essentially argues that the trial court erred in finding that the
Commonwealth satisfied its burden of proving that Appellant had engaged,
was engaging, or was likely to engage in acts of witness intimidation thereby
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permitting the Commonwealth to present this case to an indicting grand jury.
Id.
Before we address the merits of this claim, we consider whether it is
properly before us. As noted above, Appellant entered an open guilty plea to
charges of Aggravated Assault, Robbery, Burglary, Conspiracy to Commit
Aggravated Assault, and Possession of a Firearm Prohibited. Once Appellant
pleaded guilty, he waived all claims and defenses other than challenges to the
jurisdiction of the trial court, the validity of his guilty plea, the legality of his
sentence, or, in the case of an open guilty plea, the discretionary aspects of
his sentence. Commonwealth v. Eisenberg, 98 A.3d 1268, 1275, 1277 (Pa.
2014). Accordingly, by entering an open guilty plea, Appellant has waived his
challenge to the denial of his Motion to Quash his grand jury indictment.8
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8 Moreover, in his Pa.R.A.P. 1925(b) Statement, Appellant merely asserted
that the grand jury presentment was “unconstitutional in the manner in which
it was applied to [him]” without referencing his claim that the
Commonwealth’s evidence of witness intimidation was insufficient to warrant
the presentation of his case to the grand jury. See Pa.R.A.P. 1925(b)
Statement, 8/18/19). Appellant’s vagueness has, therefore, resulted in
waiver of this issue for this reason as well. See Pa.R.A.P. 1925(b)(4)(vii)
(explaining that any issues not raised in the Rule 1925(b) statement are
waived). That Appellant’s claim of error was too vague is reflected in the trial
court’s 1925(a) Opinion where the court only discussed the constitutionality
of Pa.R.Crim.P. 556 and did not consider whether the Commonwealth met the
burden of proof under the Rule. See Pa.R.A.P. 1925(a) Opinion, 10/11/19, at
3-6. See also Commonwealth v. Vurimindi, 200 A.3d 1031, 1038 (Pa.
Super. 2018) (“A [c]oncise [s]tatement which is too vague to allow the court
to identify the issues raised on appeal is the functional equivalent to no
[c]oncise [s]tatement at all.”) (citation omitted)).
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In his second issue, Appellant claims the trial court erred in denying his
Motion to Withdraw Guilty Plea. Appellant’s Brief at 11. He argues that the
court should have granted his Motion because the Commonwealth violated
Brady v. Maryland, 373 U.S. 83 (1963), when it withheld “exculpatory
evidence” from Appellant until January 16, 2018. Id.
We review an order denying a post-sentence motion to withdraw a guilty
plea for an abuse of discretion. Commonwealth v. Gordy, 73 A.3d 620, 624
(Pa. Super. 2013). We will not disturb the trial court's decision absent an
abuse of that discretion. Id.
Following the imposition of a sentence, a defendant can withdraw his
guilty plea only where it is "necessary to correct a manifest injustice."
Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa. Super. 2016) (citation
omitted). A "manifest injustice occurs when a plea is not tendered knowingly,
intelligently, voluntarily, and understandingly." Id. (citation omitted).
Pa.R.Crim.P. 590 requires that the court take pleas in open court and
conduct an on-the-record colloquy to ascertain whether a defendant is aware
of his rights and the consequences of his plea. Commonwealth v. Hodges,
789 A.2d 764, 765 (Pa. Super. 2002) (citing Pa.R.Crim.P. 590). Under Rule
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) that he is giving up his right to trial by jury and the
presumption of innocence; (4) the permissible ranges of sentences and fines
possible; and (5) that the court is not bound by the terms of the agreement
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unless the court accepts the plea. Commonwealth v. Watson, 835 A.2d
786, 796-97 (Pa. Super. 2003). This Court evaluates 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.
Commonwealth v. Muhammad, 794 A.2d 378, 383-84 (Pa. Super. 2002).
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. Pollard, 832 A.2d 517, 523 (Pa. Super.
2003).
This Court’s review of Appellant’s guilty plea colloquy indicates that the
trial court complied with Pa.R.Crim.P. 590 in conducting Appellant’s thorough
and comprehensive guilty plea hearing, and Appellant does not claim
otherwise. See N.T. Guilty Plea, 3/27/18, at 13-27; Written Guilty Plea
Colloquies, 3/27/18. Therefore, Appellant entered his guilty plea knowingly,
intelligently, and voluntarily. See Commonwealth v. Jabbie, 200 A.3d 500,
506-07 (Pa. Super. 2018) (finding knowing and voluntary guilty plea where
the colloquy covered all of the Pa.R.Crim.P. 590 topics).
Nevertheless, Appellant claims that his plea was unknowing because of
an alleged Brady violation by the Commonwealth.
Brady provides that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Brady, 373 U.S. at 87 (emphasis added). See
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also Pa.R.Crim.P. 573(B)(1)(a) (pertaining to the mandatory disclosure of
evidence favorable to the accused which is material to guilt or to punishment
of the accused, and which is within the possession or control of the
prosecutor). The burden of proof is on the defendant to establish that the
Commonwealth withheld evidence. Commonwealth v. Burkett, 5 A.3d
1260, 1268 (Pa. Super. 2010).
Appellant has failed to satisfy his burden of proof. First, Appellant has
neglected to specify the precise nature of the allegedly exculpatory evidence
that the Commonwealth allegedly withheld from him, referring to it only as
“exculpatory evidence.” The trial court record reflects that he asserted in his
Motion to Withdraw Guilty Plea that he received from his investigator notice
of an allegedly exculpatory witness statement mere days after he entered his
guilty plea.9 There is, however, no support in the record for Appellant’s bald
claim in his Brief to this Court that the Commonwealth withheld exculpatory
evidence.
Second, Appellant has claimed that he received the allegedly
exculpatory evidence on January 16, 2018, more than two months before he
entered his guilty plea. Yet, Appellant has failed to explain why, if this
evidence was exculpatory, he proceeded to enter a guilty plea despite having
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9By definition, evidence discovered by Appellant’s own investigator cannot be
Brady evidence, which is evidence “suppress[ed] by the prosecution.” Brady,
373 U.S. at 87.
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knowledge of the evidence. Accordingly, Appellant’s claim that the trial court
erred in not permitting him to withdraw his guilty plea fails.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/20
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