Com. v. Finch, J.

• Court: Superior Court of Pennsylvania
• Decided: December 29, 2014
• Docket: 395 EDA 2014
• Status: Unpublished

Opinion

J-S70012-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JEROME FINCH

Appellant No. 395 EDA 2014

Appeal from the Judgment of Sentence October 20, 2008 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002091-2008

BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 29, 2014

Jerome Finch appeals nunc pro tunc from the judgment of sentence

imposed by the Court of Common Pleas of Philadelphia County after he pled

guilty to first-degree murder,1 aggravated assault,2 and possession of an

instrument of crime (PIC).3 Upon review, we affirm.

On the evening of November 16, 2007, Finch murdered his girlfriend,

Deidra Burkett, by stabbing her multiple times in vital areas of her body and

then attempting to choke her while she was bleeding. Finch also inflicted a

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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 2502. 2 18 Pa.C.S. § 2702. 3 18 Pa.C.S. § 907. J-S70012-14

knife-wound on her eldest son, Desmond King. On October 20, 2008, Finch

pled guilty pursuant to a negotiated plea agreement to the aforementioned

offenses. In exchange for his plea, the Commonwealth agreed not to pursue

the death penalty. Following a thorough plea colloquy, the court accepted

the plea agreement. The court sentenced Finch immediately thereafter to a

term of life imprisonment on the charge of first-degree murder and a

concurrent term of five to ten years’ imprisonment on the aggravated

assault charge.

Finch did not file post-sentence motions or a direct appeal. Instead,

he filed a pro se PCRA petition seeking reinstatement of his direct appeal

rights nunc pro tunc. The court reinstated Finch’s direct appeal rights on

April 10, 2010, and he subsequently filed a direct appeal. However, this

Court dismissed the appeal because counsel neglected to file a brief. Finch

filed another pro se PCRA petition again requesting the reinstatement of his

appeal rights nunc pro tunc, which the court granted on January 9, 2014.

This appeal followed.

On appeal, Finch presents a single issue for our review: “Whether the

defendant’s guilty plea was knowing and voluntary because the oral colloquy

conducted by the trial court was inadequate.” Brief of Appellant, at 2.

Finch’s claim is waived. “Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).

Where an appellant fails to challenge his guilty plea in the trial court, he may

not do so on appeal. Commonwealth v. Watson, 835 A.2d 786, 791 (Pa.

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Super. 2003). In order to preserve an issue related to a guilty plea, an

appellant must either “object[] at the sentence colloquy or otherwise raise

the issue at the sentencing hearing or through a post-sentence motion.”

Commonwealth v. D'Collanfield, 805 A.2d 1244, 1246 (Pa. Super. 2002).

Here, Finch did not object to the plea at the hearing, nor did he file

any post-sentence motions. While Finch avers that he contested the facts of

the case, at no time did he object to or attempt to withdraw his plea. In

fact, when Finch offered his version of events, he indicated that he was not

disputing the facts of the death or the wound to Desmond King. N.T. Plea

Hearing, 10/20/08, at 33-34. Because Finch did not object to his plea or

dispute the facts underlying the charges, we cannot conclude that his

challenge to the facts preserved his present claim. See D'Collanfield,

supra.

Even if Finch did preserve his claim, it is meritless. Finch argues that

his guilty plea was unknowing and involuntary because the oral colloquy

conducted by the trial court was inadequate. Finch believes the oral

colloquy was inadequate because the court did not define intentional killing

or malice, and the judge did not explain to Finch that although he admitted

to killing Deidra Burkett, he was relinquishing his right to plead guilty to

lesser charges of murder.

The law is clear, “to be valid, a guilty plea must be knowingly,

voluntarily and intelligently entered.” Commonwealth v. Pollard, 832

A.2d 517, 522 (Pa. Super. 2003). Thus, a court accepting a defendant’s

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guilty plea is required to conduct an on-the-record inquiry during the plea

colloquy. See Pa.R.Crim.P. 590. Our Supreme Court has held that to satisfy

the requirements of Rule 590, the trial court must inquire, at a minimum, as

to the following:

(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he/she has the right to a trial by jury?

(4) Does the defendant understand that he/she is presumed innocent until found guilty?

(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Commonwealth v. Anthony, 475 A.2d 1303, 1307 (Pa. 1984).

Additionally, we note that:

Determining whether a defendant understood the connotations of his plea and its consequences requires an examination of the totality of the circumstances surrounding the plea. Even if there is an omission or defect in the guilty plea colloquy, the guilty plea will not be deemed invalid if the defendant fully understood the nature and consequences of his or her plea and then voluntarily and knowingly decided to plead guilty.

Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996).

Our review of the plea-hearing transcript indicates that the oral

colloquy conducted by the trial court was adequate. See Anthony, supra.

During the oral colloquy, the Honorable Benjamin Lerner questioned Finch

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regarding his comprehension of the alleged charges, the factual basis for the

plea, his right to a jury trial, the presumption of innocence, the permissible

range of sentences, and that Judge Lerner was not bound by the terms of

the plea agreement until he accepted the plea. Finch replied in the

affirmative to each inquiry. Moreover, Finch completed a written plea

colloquy prior to the hearing in which he also indicated he understood the

connotations of his plea and its consequences. Based on the totality of the

circumstances, it is apparent Finch fully understood the guilty plea process,

his trial rights, and the rights he would relinquish by pleading guilty.

Accordingly, Finch entered his guilty plea knowingly, voluntarily, and

intelligently. See Pollard, supra. Additionally, while Judge Lerner may not

have explicitly defined intentional killing and malice, this omission does not

render Finch’s plea invalid because it is clear he fully understood the nature

and consequences of his plea and then voluntarily and knowingly decided to

plead guilty. See Yager, supra.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/29/2014

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